The New Zealand Law Society has welcomed the Court of Appeal’s decision in Zhang v R [2019] NZCA 507, updating sentencing guidelines in methamphetamine cases.

The Law Society was one of the organisations which the Court of Appeal invited to intervene. James Rapley QC and Esther Watt appeared on behalf of both the Law Society and the New Zealand Bar Association.

“The Court of Appeal accepted our submission that an offender’s role plays an important part in determining their culpability. In doing so, they emphasised that all of the circumstances of the case must be taken into account for the sentence to be fair. This also acknowledges the prevalence of methamphetamine addiction as an ongoing health concern,” Mr Rapley says.

In particular, the Court of Appeal accepted one of the Law Society and NZBA’s central submissions that quantity should not be used as a proxy for culpability.  Commerciality, exploitation of others, and links to organised crime were all relevant to culpability, as well as addiction and other mental health issues.

“Prior to this significant modification to the guidelines, personal factors were often not taken into account by sentencing judges. The sentence was largely determined by reference to the quantity of drugs involved, including a structure which treated manufacturers more severely than importers for example,” Mr Rapley says.

The Court of Appeal’s new guidelines retain the use of sentencing bands, but now acknowledge that the role of an offender means that they can move between bands rather than being confined to one, purely because a large amount of methamphetamine was involved.

Further modifications to the band structure have also reduced the starting point for the lowest band from a mandatory prison sentence to a community sentence. A new top band has been introduced for cases involving quantities over 2kg.