NEW LOOK AT SENTENCING

New Zealand Herald photograph by Mike Scott

Richard Alan Comrie's case perfectly exemplifies the issues addressed by the Supreme Court in a decision released in December which markedly reduced the jail terms for two far more serious meth offenders — William Allan Berkland and Brownie Joseph Harding.

Their unrelated appeals were dealt with together by the court as each raised similar issues as to how a guideline judgement (Zhang vs The Queen 2019) was interpreted and applied, particularly in the way their roles and background circumstances were assessed.

The Supreme Court reduced Harding's original sentence for manufacturing 6.5kg of meth, from 28.5 years down to 21. Berkland's sentence for his role as a right-hand man to a drug ring leader, was cut from 13 years, three months, to eight years, eight months.

At Comrie's recent sentencing in Gisborne District Court, Judge Warren Cathcart accepted Comrie's case encompassed the same issues of role, background and addiction that were examined by the Supreme Court. Comrie's offending involved minimal participation driven by addiction and he had good prospects of rehabilitation.

Comrie, 57, was stopped by police in 2021 en route back to Gisborne after being sent by someone higher up in a drug ring to collect an ounce of meth from Auckland. The meth was in the glovebox of Comrie's car and he had a small amount of it for his personal use and some cannabis stuffed in his underwear.

He subsequently pleaded guilty to possessing meth for supply and charges of simple possession of meth and cannabis.

Judge Cathcart said the amount of meth involved warranted a starting point of 18 months imprisonment and could have led to a custodial type sentence no less than home detention if quantum was the main consideration.

But the recent Supreme Court decision emphasised judges should give more consideration to the role offenders played in drug enterprises and how their background circumstances contributed to the offending. This meant he had the flexibility to impose an alternative end sentence for Comrie of 16 months intensive supervision and 150 hours community work.

Comrie, a long-term meth addict, had been described by his associates in police-intercepted phone calls as nothing more than a “Mr Nobody”, acting as a driver in the offending.

His 29-year-old son, who was in court to support him, said his dad had made significant progress with recent drug rehabilitation and was better in himself than he had been for a long time.

In the Supreme Court case, Harding, a Head Hunters member now in his mid-40s, had been a hands-on boss involved in every aspect of cooking 6.5kgs of meth in Northland and employing 11 people. Discovered in 2014, it was the largest operation of its type ever detected in New Zealand.

Berkland, 50, a patched member of the Porirua Mongrel Mob, was the right-hand man to his gang associate Steven Blance, the head of a major methamphetamine ring operating out of a heavily fortified social housing flat in suburban Wellington.

Arrested in 2017, Berkland and co-offenders had profited by about $1.6 million from their purchase and on-supply of at least 15 kilograms of methamphetamine.

The court found Harding's culpability had been over-assessed and the sentence previously imposed on him was too high in comparison to those handed down to importers of the drug.

In reducing Harding's sentence, the court said, “we are doubtful that a 30-year sentence serves the sentencing goals of accountability, denunciation and deterrence any better than a sentence (with a starting point) of 22 years”.

Berkland's role had been assessed by the lower courts according to Zhang guidelines as “significant” but there needed to be provision within that category for a distinction between operational and management functions of offenders, the Supreme Court said.

Berkland had no real autonomy, no decision-making authority, and didn't manage others.

“. . . he was, effectively, paid a wage in return both in cash and drugs,” the Supreme Court said.

His lifestyle didn't show any of the trappings of wealth typically associated with commercial dealing of that scale — some of the most significant detected in Wellington at the time.

Berkland was a “highly trusted gofer” who bore disproportionate risk when compared to the reward, the court said.

While the amount of drugs in an enterprise was often the most important aggravating factor and the reason why these two men's sentence starting points were so high, role was also fundamental and consideration of it shouldn't be restricted because of the quantum involved, the Supreme Court said.

Dealing with background factors, including addiction issues, the court confirmed these were important considerations in sentencing even high-level offenders and were likely to mitigate sentence where they contributed to the reasons for the offending.

But the court also recognised there were circumstances in which allowances for background factors would be significantly reduced or even negated by other sentencing goals, such as community protection.

Background factors were especially important where potential sentences were on the cusp between imprisonment and community-based options, the Court said.

The Supreme Court stressed the importance of Section 27 cultural reports, formal or otherwise, to the sentencing process.

It said these matters did not need to be directly causative of the offending but could be more contributory. While it was preferable issues were supported by independent evidence, the courts should not fail to examine self-reported claims.

Berkland's original sentence included just over 6 percent discount for background factors. The court increased that to 20 percent, half of it for his rehabilitative efforts while in jail.

“We are satisfied that Mr Berkland's addiction together with his history of deprivation and trauma are drivers of his offending. They have contributed causatively to his offending and so will be relevant to his sentence. That is not to ignore or minimise this offending; it was by any standards serious commercial drug offending which is why a lengthy term of incarceration is inevitable. But the court must address the offender as well as the offending in accordance with the Sentencing Act,” the Supreme Court said.

Berkland's effort at rehabilitation in prison were, “genuinely exceptional and warrants a significant sentencing response despite the gravity of the offending”, the Court said.

“He appears to have broken the cycle in his own life, and turned to help other inmates do the same in theirs.”

“Sentencing judges should encourage offenders to take up the opportunities offered by rehabilitative programmes to make the necessary changes in their lives. One way to do this is by providing material sentencing discounts when the evidence suggests that is what an offender is genuinely willing to do. Such encouragement can be an inflection point in the life of a prisoner,” the court said.

Harding got no discount for background factors, the court saying, “We do not consider the background information to be as compelling either on its own terms or when placed alongside the seriousness of his offending. We do not discount the possible causative contribution of Mr Harding's background factors, particularly poor educational outcomes. But when these factors are seen in the context of his leadership of serious and carefully orchestrated offending and his lengthy history of different but still serious offending, it would not be appropriate to treat that background as justifying a discount”.

The Supreme Court panel was made up of Chief Justice Helen Winkelmann and justices William Young, Susan Glazebrook, Ellen France, and Joe Williams — the author of the decision document.

Justice Ellen France agreed with the result in both appeals but also commented separately on some of the issues.