Sentencing and the Impact of Zhang & Ors v R

Donna-Maree Cross, Barrister, of Lorne Street Chambers outlines key impacts of Zhang & Ors v R [2019] NZCA 507 in sentencing in the methamphetamine context and beyond. She will be delving further into this at the Criminal Law Conference 2021 on Friday 12 March 2021.

Introduction

With the release of the Court of Appeal’s judgment in Zhang & Ors v R [2019] NZCA 507, practitioners in criminal law were required to become familiar with a new guideline judgment for methamphetamine-related offending (superseding the predecessor of R v Fatu [2006] 2 NZLR 72).

The decision in Zhang is easier to read than its 328 paragraphs and 103 pages may initially suggest. And it does warrant a full read – not only for its exposition of the relevant legal principles, but also for its application to the six methamphetamine-related sentencing appeal cases that had been selected to address the principles articulated in context.

It is clearly an important judgment in itself. But, as is often the case, it is the cases that follow that illuminate the changes and demonstrate the true impact of an appellate authority. Notably, for the purposes of this article, approximately 18 months on, it can be seen that the impact of Zhang has been broader than simply for methamphetamine-related sentencings. This is especially so as to the impact of personally mitigating factors and the pursuit of rehabilitative pathways in advance of sentencing in the sentencing process.

The advent of Zhang

It is well-known that the decision arose following the Court of Appeal signalling an intention to revisit the previous guideline decision of Fatu. That intention was expressed against a background of (growing) concerns that Fatu was leading to disproportionately severe sentences being handed down for methamphetamine-related offending.

Key concerns included:

1. That a flawed premise was in operation – namely that lengthy prison sentences act as an effective deterrent;
2. That personal circumstances of the offender to the sentencing exercise and end sentences being imposed were being wrongly minimised in relevance;
3. That there was an undue focus on the quantity of methamphetamine to the exclusion of, in particular, the role of the offender;
4. That minimum periods of imprisonment (MPIs) were being imposed in a routine or mechanistic way at a certain level, contrary to the requirements of the Sentencing Act 2002; and
5. That our understanding as a society of methamphetamine had changed since Fatu was decided, including as to the health impacts of its manufacture and that addiction to it is a health issue and should be treated accordingly.

It is against that background that the judgment should be assessed, and the potential of its application (beyond methamphetamine-related offending), should be considered.

What Zhang said

Overall approach

There is no substitute for a reading of the decision itself. The risk in articulating “key takeaways” from it is that it derogates from the true import of the decision in context. Indeed, the decision itself is an ode to moving away from any overly-mechanistic approach. That of course ought not be re-introduced by the back door, by rote recitations and applications of set bands, applicable percentages, or the like.

With that caveat, four main insights from Zhang are outlined in the four subsections below.

The bands

Fundamentally, whilst quantity of methamphetamine remains an important consideration in fixing culpability and the starting point, the Court emphasised that setting a starting point requires flexibility and discretion. Role is expressly a consideration in that. A diminished role may result in a defendant not only moving downwards within a band, but also down a band altogether. Where culpability is truly low, sentencing Judges need to be willing to set starting points beneath the stated entry points for the relevant bands.

As a result, whilst bands are retained and specified with reference to the quantity involved (a la Fatu), they are modified. There is no longer a distinction between supply, importation, and manufacture – and the starting points are amended in line with the re-consideration of what is appropriate for sentencing of methamphetamine offending. The bands are set out as follows:

Personally mitigating circumstances

In terms of assessing impact, a focus is mandated on personally mitigating circumstances. At stage two of the sentencing exercise, personally mitigating circumstances relating to the offender are to be considered. These include addiction, mental health, duress or undue influence, and social, cultural and economic deprivation of the offender. Such personally mitigating circumstances are not to be minimised simply because the offending was of a particular type (here, methamphetamine-related). In the result, addiction causative of the offending can justify a discount of up to 30 per cent.

Rehabilitation

Important also to assessing impact is that counsel and sentencing judges have been encouraged to make greater use of section 25 of the Sentencing Act 2002, which permits adjournment of sentencing to enable a programme of rehabilitation to be undertaken. The concern was that the provision was under-utilised. It is appropriate where independent evidence suggests the offending was caused by the factor(s) the proposed programme or course of action is designed to target. Section 27 (relating to cultural reports) may be engaged as to the support available from whanau and the community to assist the offender in completing the proposed plan.

MPIs

The Court was clear: MPIs must not be imposed as a matter of routine or in a mechanistic way. The practice that an end sentence of 9 years’ imprisonment automatically triggers an MPI had to cease. In its place, a reasoned analysis is required under section 86 in the particular case with the discretion remaining unfettered by any presumptions or rules of thumb. Ultimately, lengthy MPIs are properly reserved for cases involving significant commercial dealing.

The cases after Zhang

Ultimately, Zhang has extended greater flexibility and discretion to courts at sentencing in two key ways. First, in suggesting lower starting points for methamphetamine-related offending – at least at the lower levels and mid-levels in terms of both quantity and role. Secondly, in holding that there is to be consideration of a range of personal factors as well as rehabilitative sentencing outcomes to the extent relevant in any given case. That second aspect clearly extends beyond sentencings for methamphetamine-related offending.

These two aspects undoubtedly reflect the growing awareness in our society of the nature of addiction and how it needs to be treated. That said, for the very serious drug (especially methamphetamine) offending, where there is commerciality, the involvement of organised crime, and exploitation of others for instance, those will continue to be dealt with by lengthy terms of imprisonment.

Although, it is not a straightforward exercise to compare starting points given the variables often involved (different types of offending for sentence, and the need to correct other errors at starting point, for instance), it appears that Zhang has resulted in an increased emphasis on (and import of) personally mitigating factors and, in the end, a lowering of sentencing outcomes, particularly in Bands One to Four.

Further, the Court in Zhang emphasised that sentencing must achieve justice in the individual case and that requires flexibility and discretion in setting the sentence. Consistency is not an absolute end and sentencing remains an evaluative exercise. That has been applied well beyond methamphetamine-based or even drug-based offending. A particularly informative example of the potential impact may be found in Orchard v R [2019] NZCA 529. In that case, the Court of Appeal allowed an appeal against sentence for a charge of wounding with intent to cause grievious bodily harm and breach of a protection order to which the well-known guideline authority of R v Taueki [2005] 3 NZLR 372 (CA) applied. The result was a reduction in sentence from six years and nine months’ imprisonment to four years and three months’ imprisonment on the lead charge.

Conclusion

It is well known that Zhang adjusted the bands, and imported role as an important consideration in setting starting points, in terms of methamphetamine offending.

However, beyond that, personally mitigating features are now up for grabs at sentencing, regardless of whether drug-related or any other type of offending is involved. Further, consideration of rehabilitative pathways utilising section 25, possibly in conjunction with a cultural report under section 27, needs to be on the table where an addiction is identified as a driver of the offending. Ultimately, an evaluative approach is mandated at sentencing, with flexibility and discretion to be applied to achieve a just outcome in the particular case.

These points have each been picked up in sentencing cases and appeals following Zhang. They have not led to a ground-shift in sentencing, but their impact has nevertheless been important and certainly discernible. Against this background, it is incumbent on practitioners to refresh themselves on Zhang and consider how it may affect the sentencing process and outcomes, in respect of methamphetamine offending and beyond.

If you are interested in learning more about Zhang and its impact, you can attend the upcoming Criminal Law Conference 2021, where the programme offering includes a presentation on this topic.

Donna-Maree Cross is a barrister practicing from Lorne Street Chambers. She is a specialist in criminal defence and privacy law. Connect with Maree via LinkedIn