Henderson v Police - [2021] NZHC 78

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2020-454-24

[2021] NZHC 78

BETWEEN
STEPHEN HENDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 February 2021 via AVL

Counsel:

O S Winter for Appellant

J J Harvey and T Bagnall for Respondent

Judgment:

3 February 2021

JUDGMENT OF MALLON J

Introduction

[1] Mr Henderson pleaded guilty to charges of driving while suspended (x2), dangerous driving, unlawful possession of a pistol, unlawfully carrying ammunition, possession of methamphetamine for supply and possession of utensils.1 He was sentenced to three years and six months’ imprisonment and disqualified from driving.2 He appeals this sentence. He contends this sentence was manifestly excessive because the Judge adopted too high a starting point on the methamphetamine charge and failed to address totality.

1 Land Transport Act 1998, ss 32(1)(c) and 35(1)(b) (maximum penalties three months’ imprisonment or $4,500 fine); Arms Act 1983, ss 50(1)(a) and 51 (maximum penalties three years’ imprisonment or $4,000 fine); and Misuse of Drugs Act 1975, ss 6(1)(f) and (2) (maximum penalty life imprisonment) and 13(1)(a) and (3) (maximum penalty one year’s imprisonment or $500 fine).
2 Police v Henderson [2020] NZDC 26617.

HENDERSON v POLICE [2021] NZHC 78 [3 February 2021]

Background

[2] The methamphetamine, firearm and ammunition charges arose when Mr Henderson was stopped at a routine traffic stop on 25 March 2020 during the COVID-19 Level 4 lockdown. In his possession were a sawn-off .410 pistol, four rounds of ammunition, four grams of methamphetamine, two glass pipes used for consuming methamphetamine, a number of small snaplock bags, scales, a tick book and two rolled-up banknotes. Mr Henderson also had $864 in cash in his wallet.

[3] The dangerous driving charge arose from an incident on 23 January 2020. Mr Henderson drove on the wrong side of the road as he approached a tight right-hand uphill bend that had a 25 km/h speed advisory. Once over the summit of the road, Mr Henderson entered an area of roadworks with a 30 km/h speed restriction. He overtook another vehicle at an estimated speed of 70-80 km/h. After this, he crossed the centre line on several occasions. This caused one vehicle, driving in the opposite direction, to pull over to avoid a collision. It also caused a collision with another vehicle heading in the opposite direction, which had three occupants. The driver of that other vehicle was injured with a bruised hip and back strain, and both vehicles were extensively damaged.

[4] The driving while suspended occurred on 17 October 2019 and 6 December 2019.

Personal circumstances

[5] Mr Henderson is 39-years-old. He has 13 previous convictions for offending at the lower end of seriousness. They include driving offences of which the most relevant are convictions for dangerous driving (in 2015 and 2001) and for careless driving (in 2003). He has no previous convictions for methamphetamine, firearms or ammunition offending.

[6] The pre-sentence report advised that Mr Henderson and his partner were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Henderson v Police

Details

AGLC: Henderson v Police [2021] NZHC 78
Case: [2021] NZHC 78
Decision Date: 3 February 2021

CaseChat Overview and Summary

In Henderson v Police, the appellant, Mr Henderson, appealed his sentence for various criminal charges, including possession of methamphetamine, possession of firearms and ammunition, and dangerous driving. The High Court of New Zealand reviewed the sentence imposed by the District Court and the appellant's arguments regarding the starting point and totality of the sentence. The primary issue was whether the District Court erred in setting the starting point for the methamphetamine charge and if a totality adjustment was necessary. The court also considered whether the sentence was manifestly excessive.

The court found that the District Court did not err in setting the starting point for the methamphetamine charge, as it correctly considered the quantity of drugs and the appellant's role in the operation. However, the court did agree with the appellant that his role in the operation was better classified as "lesser" rather than "significant," leading to a more appropriate starting point of two years' imprisonment. The court also concluded that no totality adjustment was necessary as the adjusted starting point and uplifts for the firearms, ammunition, and driving charges resulted in a sentence that was proportionate to the gravity of the offending as a whole. The court did find the end sentence to be manifestly excessive due to the higher starting point for the methamphetamine charge and reduced the sentence to two years and two months' imprisonment.

The appeal was allowed, and the sentence for the possession of methamphetamine for supply was quashed and substituted with a sentence of two years and two months' imprisonment. The sentences for the other charges remained unchanged.

Orders