In a splendidly clear judgment our Court of Appeal has revised the law on sentencing for methamphetamine dealing (importing, manufacturing, and supplying): Zhang v R [2019] NZCA 507.
The Court of five Judges helpfully sets out a summary of the judgment at [10], and adds at [11]:
“...Those who willingly participate in commercial-level dealing in methamphetamine will gain little succour from this judgment. Its benefits lie more for those who take a lesser role in methamphetamine offending, and particularly those who do so as a result of vulnerability.”
There is no need for me to summarise the case (six jointly heard appeals), as the Court has done the hard summarising work in [10] and [11].
I make two observations.
First: If you thought that in referring to only two stages of analysis the Court was overlooking the taking into account of an early guilty plea, don’t worry. Looking at the discussions of the cases appealed you can see, for example at [201] and [258] the traditional approach.
Second: You may remain confused over the way an appropriate sentence for a conspiracy is identified. At [239] the Court says that taking half the penalty identified for the full offence is the correct approach, citing in footnote 133 Parata v R [2017] NZCA 48 at [5]. Yes, you say, but in Parata no authority for that was given. I dare not suggest that there might be some confusion here between s 310(1) of the Crimes Act 1961 and s 311(1) of that Act which provides (materially) for half the penalty for the full offence if only the attempt is committed. But s 310 does not apply here either, because the penalties for conspiracy to deal in drugs are set out in s 6(2A) of the Misuse of Drugs Act 1975. They are 14, 10 and 7 years’ imprisonment, compared with, for the corresponding full offences, life, 14 and 8 years. The approach to sentencing in the drugs context for conspiracies has been to reduce the levels set out in the bands by about 30 per cent: R v Haarhaus HC Auckland CRI-2007-004-018646, 24 July 2009, applied in R v Feng [2016] NZHC 1333 (neither of these cases was referred to in Zhang). Nor did the Court refer to its earlier decision in R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627, where detailed consideration was given to conspiracy sentencing in the context of dealing guidelines. So, what should we do? Follow High Court authority which has not been overruled, and take (as the first step in setting a starting point) about 30 per cent off the penalty identified in the new bands if the full offence had been committed? Or follow Zhang which, for no apparent reason, halves the penalty for the full offence as identified in the bands?
