In Berkland v R [2022] NZSC 143, December 7, 2022, the accused (Berkland and Harding) were convicted of offences involving the manufacture and distribution of methamphetamine. Mr Berkland was sentenced to a period of twelve years of imprisonment. Mr. Harding was sentenced to a period of twenty-eight years of imprisonment.
They appealed from the sentences imposed. The Supreme Court of New Zealand indicated that the appeal involved the following (at paragraphs 1 and 2):
In Zhang v R the Court of Appeal recalibrated New Zealand’s approach to sentencing for methamphetamine‑related offending. It broadened sentencing discretion in two ways relevant to this appeal. First, it removed the purely category‑based distinction in sentencing between manufacture, importation and supply of methamphetamine. Sentencing is to be focused instead on the particular role of the offender in the offending. This was done by introducing new role categories (“leading”, “significant” and “lesser”) to capture the role‑related culpability inherent in the offending. Second, and subject to this Court’s decision in R v Jarden, the Court signalled that personal circumstances may be relevant across the entire spectrum of methamphetamine‑related sentencing.
These two appeals by William Berkland and Brownie Harding raise important issues for the implementation of that new framework and for sentencing more generally.
The appeals were allowed. Mr. Berkland’s sentence was reduced to a period of eight years and eight months. Mr. Harding’s was reduced to a period of twenty-one years. The Supreme Court rendered a detailed and considered judgment dealing with sentencing in such cases, but which also deals with issues germane to Canadian sentencing.
Introduction:
The Supreme Court of New Zealand indicated that the “Sentencing Act’s purposes and principles mandate individualised justice, making the offender’s background an important element in all sentencing alongside consideration of the harm caused to victims and the community. We conclude that background factors such as addiction, deprivation and historic dispossession can mitigate sentence where those factors have contributed causatively; that is, if they help to explain in some rational way why the offender has come to offend. This standard is not unduly rigorous. That said, there will be cases in which the causative nexus is more direct. In other words, if it can be established that a background factor was the operative or proximate cause of the offending then the potency of that connection will be greater. But there may be other considerations that limit the effect of background. In particular, the more serious and carefully orchestrated the offending, the more the courts are likely to emphasise the choice made by the offender to offend. The causative contribution of background factors will be reduced and other sentencing purposes will be more prominent, particularly protecting the community from the harm associated with drug dealing” (at paragraph 16).
The Supreme Court set out the following “role profiles” to aid in sentencing (at paragraph 71):
| Changes to significant role profile from Zhang | ||||
| Zhang’s significant role profile | Updated significant role profile | |||
| 1. Operational or management function in own operation or within a chain; 2. involves and/or directs others in the operation whether by pressure, influence, intimidation or reward; 3. motivated solely or primarily by financial or other advantage, whether or not operating alone; 4. actual or expected commercial profit; and/or 5. some awareness and understanding of scale of operation. | 1. Management function in operation or chain where, under direction from a leader, this entails directing others in the operation whether by pressure, influence, intimidation or reward; 2. operational function whether operating alone or with others; 3. motivated solely or primarily by financial or other advantage; 4. actual or expected financial or other advantage, especially where commensurate with role and risk assumed; and/or 5. some awareness and understanding of the scale of the operation. | |||
| Updated Role Profile Table | ||||
| Lesser | Significant | Leading | ||
| 1. Performs a limited function under direction; 2. engaged by pressure, coercion, intimidation; 3. involvement through naivety or exploitation; 4. motivated solely or primarily by own addiction; 5. little or no actual or expected financial gain; 6. paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved; 7. no influence on those above in a chain; 8. little, if any, awareness or understanding of the scale of operation; and/or 9. if own operation, solely or primarily for own or joint use on non‑commercial basis. | 1. Management function in operation or chain where, under direction from a leader, this entails directing others in the operation whether by pressure, influence, intimidation or reward; 2. operational function, whether operating alone or with others; 3. motivated solely or primarily by financial or other advantage; 4. actual or expected financial or other advantage, especially where commensurate with role and risk assumed; and/or 5. some awareness and understanding of the scale of the operation. | 1. Directing or organising buying and selling on a commercial scale; 2. substantial links to, and influence on, others in a chain; 3. close links to original source; 4. expectation of substantial financial gain; 5. uses business as cover; and/or 6. abuses a position of trust or responsibility. | ||
The Importance of Offender Background:
The Supreme Court indicated that “the statutory purposes, principles and factors for sentencing require judges to dispense individualised justice in the sense that sentencing decisions must reflect a careful evaluation of the circumstances of the offending and of the offender. They encourage an approach to sentencing in which offenders acknowledge and atone for the harm they have done and, through rehabilitation, are enabled to choose a crime-free future. To meet these objectives, judges need a sufficient understanding of the offender. That is why the purposes, principles and factors of sentencing make offender background an important component in sentence construction…Sentencing consistency, an important principle of sentencing, is often seen as being in natural tension with the requirements of individualised justice. But that is to misunderstand what consistency means. Section 8(e) says consistency requires that “similar offenders committing similar offences in similar circumstances” should receive similar treatment. When the court takes full account of an offender’s background, the risk that the offender will be treated the same way as materially dissimilar offenders is reduced. In other words, proper consideration of background mitigates the risk of sentencing inconsistency” (at paragraphs 89 and 90).
The Impact of Addiction:
The Supreme Court suggested that “[c]ausation terminology draws judges into requiring a simple and direct relationship between addiction and deprivation on the one hand and the offending on the other, when the complexity of context and contributing factors makes that approach unrealistic” (at paragraph 82).
The Court held that “[s]entencing judges should start with the facts in relation to the particular offender and should avoid exclusionary rules or heuristics when assessing the relevance of offender background. This reduces the risk that similar sentences may be imposed on factually dissimilar cases in breach of s 8(e)….In the same vein, we understand Zhang’s preference for independent evidence in relation to claims of addiction. But, again we are uncomfortable with the complete exclusion of self-report. While independent evidence is likely to be more cogent than self-report, there is no reason to disqualify the latter from consideration as incapable of proving the relevant fact. Rather, whether a mitigatory factor (if contested) is proved to the required standard will be for the sentencing judge who must consider all the circumstances of the case in the usual way” (at paragraphs 128 and 129).
What is the Required Degree of Connection Between Background and the Offending?
The Supreme Court notedthat the “different approaches taken in Canada and Australia highlight the practical and conceptual challenges for sentencing judges tasked with connecting a community’s traumatic but distant past with individual offending. The New Zealand courts are not alone in this respect. The sufficiency of connection between offending and more immediate background factors such as mental incapacity and addiction have proved just as problematic… The economic and psychological effects of this historical process persist and are utterly pervasive. They are the intergenerational sources of Māori offending today. The value of historical material and therefore its impact on the choice or length of a sentence is that it explains that contribution. When the relevant material is presented in succinct, summary and helpful form judges will identify that contribution by applying the usual combination of logic and intuition”(at paragraphs 106 and 125).
The Supreme Court pointed out that “[t]here will always be connections between the different dimensions of an offender’s background and their choice to offend, although the nature and strength of those connections will vary. As the cases have said, background factors can be the ‘operative’ or ‘proximate’ cause of offending or they can make a less direct “causative contribution” (at paragraph 107). However, The Court concluded that “requiring operative or proximate cause in every case sets the bar too high” (at paragraphs 108 to 112):
Where it can be established that background was an operative or proximate cause of the offending it is likely to be a potent sentencing factor. Proximate afflictions such as addiction or mental illness may be examples. There may be other background factors that invite similar inferences in particular cases. As we have said, restrictive rules or heuristics that tend to exclude factors at the outset without assessing their potential relevance have no place in the making of factual assessments. They create analytical blind spots.
But requiring operative or proximate cause in every case sets the bar too high. We prefer the Carr standard of causative contribution. It captures background factors that are, as we explain below, the more diffuse drivers or the intergenerational sources of offending; factors that would be excluded as insufficiently connected under a stricter causation standard. These contributory factors are important because they can provide rational explanations for why an offender has come to offend. Contributory mental illness can still explain why an offender is living in the chaotic or conflictual circumstances that made the offending more likely. Contributory addiction can help to explain why an offender was drawn into the commercial drug dealing environment. Contributory deprivation, including that precipitated by historical dispossession and sustained by poor educational and other intergenerational outcomes, can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely. Where these factors do help to explain how the offender came to offend, they will amount to causative contribution and so will be relevant for the purpose of sentencing.
Although causative contribution is a lower standard than operative or proximate cause, it must still be satisfied. There will be a point at which background factors can no longer assist in explaining the offending. For example, the link between historical deprivation and the offending can be severed. To illustrate this, not all Māori still live in circumstances of relative economic, social or cultural deprivation today. For some, the cycle of deprivation has been broken or, at least, much weakened. This too is important to understand, because any mitigatory effects of historical deprivation must be based on explanatory facts, not ethnic assumptions. As we will come to, the evidence of Mr Harding’s background raises these issues.
The causative contribution of background may also be displaced, in whole or in part, where the offending is particularly serious. Complex and orchestrated offending is likely to involve careful assessment of the risks of detection and therefore increased agency. The contribution of background to offending with this level of agency may therefore be significantly reduced or even negated and other sentencing goals, such as community protection, may become more important. Such assessment will depend very much on the facts, however.
Finally, it is appropriate to acknowledge that background factors will be most meaningful where the potential sentence is at the margin between imprisonment and a community‑based sentence. In commercial drug dealing the latter is more likely to be a prospect for lesser roles and the lower end of the significant role category. But that does not mean background will be irrelevant in relation to more significant roles. Where imprisonment is unavoidable, background factors that contribute causatively to an offender’s degree of culpability may still mitigate sentence length.
Deprivation:
The Supreme Court stated, at paragraphs 114 and 115, that the “fact is that criminal sanctions fall disproportionately — indeed overwhelmingly — on the poor. This has long been recognized…In other words, poverty, whether economic, social or cultural (and often all three combined), constrains individual choice, including the choice not to offend; although the degree of constraint will vary from case to case. This proposition is one well established in social science literature. But there is no formula against which judges can calculate the lived connection between deprivation and individual offending. At least not yet. The impacts of deprivation are too complex, multi‑layered and non‑linear, and they are unique to every offender. But there are consistent patterns that cannot be ignored” (at paragraphs 116 to 120):
Children raised in poverty are more likely to experience at least some of the so‑called criminogenic risk factors that consistently correlate with offending later in life. These factors can be environmental or intrinsic to the offender… But socio‑economic status is not the whole story. There are other drivers of offending whose connections to poverty are more remote. The social science is reasonably clear that discriminatory attitudes can become institutional, resulting, for example, in over criminalising of ethnic communities, leading in turn to asymmetric rates of conviction and incarceration irrespective of socioeconomic status….Of course, progressing from precarious poverty to life as an habitual offender is not inevitable. Not everybody raised in poverty will eventually offend. As is often said, correlation does not establish causation. But, even if the relationship between poverty and the commission of a particular offence is usually too complex to take matters further than affirming, yet again, the consistent correlation between poverty and offending, that in itself is important. Long run patterns like this demonstrate (if demonstration is still needed) that there is, nonetheless, a meaningful relationship between poverty and crime. As we have said, factors associated with lives in poverty are at least the diffuse drivers of individual offending. That is why circumstances of deprivation can have such powerful explanatory force in terms of revealing how an offender has come to offend and in guiding the court’s assessment of what should now be done about it.
The Court also suggested that “[w]hether such contribution, if established, is then displaced by other factors (such as extended periods of offence free living) is of course a matter of judgement. But sentencing judges should reflect on the power of background in the shaping of life opportunities and beware of imposing unrealistic expectations in hindsight” (at paragraph 121).
The Dissent:
Justice France, in a dissenting opinion, indicated that she agreed that “both appeals should be allowed and I agree with the sentencing outcomes which have been substituted for the appellants. I write separately to explain where I differ from the approach adopted by the majority as set out in the judgment of Williams J. The principal differences relate to the re-formulation of the relevant indicia in Zhang v R and to the reasoning relating to the link required between background factors and the offending” (at paragraph 197).
Justice France indicated that a “link based on causative connection, albeit not necessarily the proximate cause, seems to me to meet the concerns about ensuring personal circumstances affecting culpability are properly addressed. It also fits with the notion, as described by the Court of Appeal in E (CA689/10) v R, that ‘[t]he moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend’…I emphasise the requirement in Carr for a ‘causative contribution’ which impairs choice and diminishes moral culpability. It may be that treating factors which “help to explain” how an offender came to offend (rather than an operative cause), as meeting the Carr test, does not alter that test. If so, I am content with that approach. If that is not the case, however, I prefer the Carr formulation” (at paragraphs 205 and 206).
Finally, Justice France stated that she accepted “that there are difficulties, as the Supreme Court of Canada recognised in R v Ipeelee, in establishing causation when dealing with factors such as the effects of dispossession and colonisation. But that Court was dealing with a legislative provision relevantly directed to the position of indigenous peoples with a specific direction to avoid imprisonment where possible. The statutory scheme in relation to drug offending in New Zealand explicitly starts with a different presumption. Further, given the unfortunately high proportions of those in prison who have experienced the effects of colonisation, a disadvantaged background, or suffer from mental health issues, an unduly loose link would result in discounts for the majority of offenders across the full range of offences. I see the merits of that outcome as something for Parliament to grapple with, as was the case in Canada” (at paragraph 208).
