In December 2018 the Court of Appeal signaled its intention to reconsider R v Fatu [2005] NZCA 278, [2006] 2 NZLR 72 (CA), the guideline decision for methamphetamine-related offending. This was in response to concerns that Fatu was resulting in disproportionately severe sentences and that certain assumptions made by the Court in November 2005 no longer held true.

The Court of Appeal has now released its decision. In Zhang v R [2019] NZCA 507, six methamphetamine-related sentencing appeal cases are decided alongside the reconsideration of the Fatu guidelines.

Fatu criticisms

Counsel for the appellants and intervenors were concerned that Fatu has been applied in a restrictive way. The first concern was that sentencing for methamphetamine was based on a flawed premise, namely that lengthy prison sentences are an effective deterrent. However, scientific evidence shows that this is not the case. The focus on deterrence has led to excessively long sentences and an unprincipled disregard of the personal circumstances of the offender.

The second concern was that the Fatu bands were only based on one criterion, the quantity of methamphetamine. This was criticised for causing rigidity, preventing proper assessments of criminality, removing judges’ discretion and preventing the courts from having regard to other factors which should be highly relevant to culpability such as role and addiction.

The third concern related to the imposition of minimum periods of imprisonment with submitters complaining that these were imposed in a routine, mechanistic way, without reasons being given. The submitters said that this was contrary to section 86 of the Sentencing Act 2002.

Other concerns were that the since Fatu there have been changes to the understanding of the effects of methamphetamine offending. Manufacturing of methamphetamine is no longer as prevalent as it was at the time of Fatu and some of the health hazards associated with manufacture may have been overstated. Most methamphetamine is imported and at significantly greater quantities than 10 years ago.

There is now a growing community acceptance that drug addiction is a health issue and should be treated as such.

Zhang - six appeals selected

The issues the Court of Appeal identified to address in the context of the six selected appeals were the weight that should be given to the role played by the offender when assessing culpability, the relevance of the offender’s personal circumstances, particularly addiction issues, and the approach to be taken to imposing minimum periods of imprisonment for methamphetamine offending.

Submissions were sought from the Criminal Bar Association, the New Zealand Law Society, the Public Defence Service, the Human Rights Commission, the New Zealand Police, the New Zealand Drug Foundation, Te Ohu Rata o Aotearoa — Māori Medical Practitioners Association and Te Hunga Rōia Māori o Aotearoa - the Māori Law Society.

The Court of Appeal said that in sentencing the quantity of methamphetamine remains an important consideration in fixing culpability and the starting point. The Court of Appeal decided that the Fatu bands should be retained, but with modifications. These include removing the distinction between supply, importation and manufacture, adjusting the sentence ranges for each band and creating a new band five for quantities in excess of 2 kilograms.

The new bands

Considerations

The role of the offender is an important consideration in the stage one starting point. Setting a sentence starting point requires flexibility and discretion notwithstanding the guidelines. A diminished role in drug-dealing offending may result in the defendant not only moving within a band, but also between bands. Judges need to be willing to set start points in sentences that are beneath the stated entry points where culpability is truly low.

At stage two of the sentencing exercise, personal mitigating circumstances relating to the offender are applicable to all instances of Class A drug offending including methamphetamine.

Addiction, poverty and deprivation of an offender are now to be considered as potential mitigating factors. If a dealer can prove that their addiction caused their offending this could justify a 30% discount in their sentence.

Counsel and sentencing judges are encouraged to make greater use of section 25 of the Sentencing Act 2002 to adjourn sentencing to enable rehabilitation programmes to be undertaken.

Minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic way. A reasoned analysis is required under section 86 of the Sentencing Act and lengthy sentences are to be reserved for cases involving significant commercial dealing.

The judgment applies to all sentencings after the judgment’s issue (21 October 2019). To sentences that have already imposed the judgment applies only if an appeal was filed before the date of the judgment and the application of the judgment would result in a more favourable outcome to the appellant.

Of the six appeals, four were allowed and two were dismissed.

The New Zealand Law Society and the New Zealand Bar Association have both welcomed the decision.