In Berkland v R [2022] NZSC 143 the Supreme Court allowed an appeal by Berkland against a sentence of 13 years, three months’ imprisonment for methamphetamine offending.  In granting leave to appeal, the Court had indicated that one of the issues it particularly wanted to hear from the parties on was:

“whether, given the more limited role attributed to Mr Berkland by the Court of Appeal (compared to that of his co-offender), sufficient weight was placed on that factor in setting the starting point”.

Adams on Criminal Law has noted that the guideline judgment Zhang v R [2019] NZCA 507 provided indicators to assist with the assessment of an offender’s culpability:

“Under Zhang both the quantity of drug and the role of the offender are the primary considerations in identifying a starting point range.” (at MD6.25 (6))

The Court considered whether the role criteria, stipulated in Zhang and applied to Berkland by the Court of Appeal, ensured that all facts relevant to culpability were appropriately considered. It found that clarification was needed for the offender’s role, the nexus between personal background factors and offending, and the tools for obtaining and evaluating background information.

The amended role profile (reproduced below) has already been referred to in another Supreme Court sentencing appeal, Philip v R [2022] NZSC 149.

Berkland v R has now been added to the list of Guideline Judgments in Westlaw’s Sentencing Tracker.

The amendments apply to:

• sentencings taking place after Berkland,
• current sentencing appeals (including applications for leave to appeal), and
• sentences and appeals against sentence where the amended role profile would result in a more favourable outcome for the appellant.