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 both users of methamphetamine. Mr Henderson said he possessed firearms to keep himself safe because he had been subject to several home invasions from criminal gangs because of his drug dealing. He denied any financial gain from his dealing. He said

he regretted getting involved with methamphetamine because he has seen the harmful effects of addiction on others. He would like to complete alcohol and drug counselling with his partner and hoped for a future with employment, family and a drug-free home.

[7]    Mr Henderson’s counsel advised that Mr Henderson has engaged with his support officer in prison and, while it was fair to say that his motivation to address his substance abuse has ebbed and flowed, overall he was working towards that aim. Applications to Odyssey House or a local residential programme remain in progress and his instructions to counsel were that if a such programme is available to him he will take it. His motivation is driven by his children who are reluctant to have contact until he sorts himself out.

Sentence indication

[8]    Following completion of disclosure, Mr Henderson sought a sentence indication on all the charges. A sentence indication was given by the District Court (Judge S B Edwards) on 27 August 2020.

[9]    The sentence indication was for an overall starting point of three years and three months’ imprisonment for the methamphetamine, firearm and ammunition offending.

[10]    The Judge further indicated that if these matters were dealt with together with the driving offences “there may be an uplift of a month or two, no more, but that it might be that it could be dealt with by way of a lengthy period of disqualification and an emotional harm reparation payment to the other driver”.

[11]   Initially, Mr Henderson was to consider his position as a result of the sentence indication by 3 September 2020. However, the sentence indication process was adjourned twice while Mr Henderson pursued potential drug treatment options, including at Odyssey House in Auckland. Running alongside that was an issue about the weight of the methamphetamine that Mr Henderson was alleged to have possessed. It transpired that the original allegation of six grams included the weight of the bag in which the methamphetamine was contained. Without that bag, the methamphetamine

weighed four grams. Once that was resolved, Mr Henderson pleaded guilty to the charges and was remanded for sentencing on 18 December 2020.

District Court sentencing

[12]   The District Court Judge (Judge B Northwood) noted that the sentence indication had lapsed but considered it was nevertheless helpful. The Judge noted that the sentence indication related to a weight of methamphetamine of six grams whereas that was now reduced to four grams. The Judge considered that the two and a half year starting point indicated by Judge Edwards seemed appropriate in light of the weight of the drugs involved and the culpability of the offending. In reaching that view, he noted that the quantity of the drugs was towards the upper end of the band 1 range in Zhang.3 He considered that the culpability of the offending was low. He regarded Mr Henderson as running a “very basic … one man band” operation in which somebody sold larger units to Mr Henderson, who in turn supplied smaller amounts to others.4

[13]   Judge Northwood agreed with Judge Edwards’ indication of a 12 month uplift for the firearm and ammunition offending. Judge Northwood referred to the Court of Appeal’s decision in Joyce v R in which a range of 12-18 months uplift in this kind of case was said to be typical.5 Although there was no evidence that the ammunition was suitable and for use in the pistol, the Judge considered the only conclusion was that the ammunition was for the same reason as the firearm. As to that, Mr Henderson had acknowledged it was to defend himself from “taxing” by criminal gangs.

[14]   The starting point for the methamphetamine, firearm and ammunition offending was therefore set at three and a half years’ imprisonment. The Judge uplifted that starting point by a further two months’ imprisonment for the dangerous driving, describing it as “a bad case of its kind”.6

3      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 348 at [125].

4      At [23]-[24].

5      Joyce v R [2020] NZCA 124 at [24].

6      Police v Henderson, above n 2, at [29].

[15]   As to personal factors, the Judge considered that no increase from that starting point was necessary because of Mr Henderson’s criminal history. He allowed a 20 per cent discount (nine months) for the appellant’s guilty plea and a further 11 per cent discount (five months) for the appellant’s positive engagement towards his rehabilitation.

Appeal

Starting point

[16]   The first issue is whether, as Mr Henderson submits, the sentencing Judge erred by failing to give proper recognition to the fact that the offending now fell within band 1 of Zhang.7 I consider he did not.

[17]   The Judge expressly noted that the weight of four grams sat “towards the top of band 1”.8 He correctly noted that this overlapped with the lower end of band 2. He went on to say that a “weight based approach” would set the starting point at three and half to four years’ imprisonment.9 That too was a correct statement given that the top of band 1, which applies for quantities of up to five grams, is four years’ imprisonment. The Judge correctly went on to consider Mr Henderson’s role. It was his assessment of that role, combined with the quantity of drugs involved, that led him to conclude that the starting point of two years and six months’ imprisonment which had been earlier indicated remained appropriate. The Judge’s methodology was therefore correct.

[18]   The next issue is whether the Judge’s starting point was nevertheless manifestly excessive for the quantity of drugs involved and Mr Henderson’s role. Relevant to this is the indicia set out in Zhang.10 The Judge referred to the indicia but did not say whether he viewed Mr Henderson as in the “lesser” or “significant” category or somewhere in between. He commented that they were difficult to apply to Mr Henderson’s “one man band” operation.11

7      Zhang, above n 3, at [125].

8      Police v Henderson, above n 2, at [22].

9 At [22].

10     Zhang, above n 3, at [126].

11 At [23].

[19]   Counsel for Mr Henderson submits that his offending better fitted the indicia in the “lesser” category. He submits:

(a)Mr Henderson was at least partly motivated by his own addiction (as indicated by the presence of pipes in the vehicle and the pre-sentence report);

(b)he received little or no actual or expected financial gain (as indicated by the relatively small amount of cash found in the vehicle, the small quantity of drugs found, his comments in the pre-sentence report about this and the absence of any contrary evidence);

(c)he had no influence on those above him in the chain (as indicated by the Judge’s acceptance that this was a one man band operation in which Mr Henderson supplied smaller amounts from someone who sold him larger amounts, the absence of any contrary evidence, and the small size of the operation as indicated by the small quantity of drugs and cash found on him); and

(d)his operation was at least partly for his and his partner’s own drug use on a non-commercial basis.

[20]   I agree with this assessment. It was suggested by both counsel that possibly one of the indicia under “significant” applied, namely that he had some awareness of the scale of the operation. But that was only because he was a street-level dealer running his own operation. There was no suggestion he was involved in a wider operation and had knowledge of its scale. I consider that Mr Henderson’s role best fits into the “lesser” description. This indicates a starting point materially below the top of band 1. In my view something in the region of two years’ imprisonment would appropriately reflect Mr Henderson’s culpability given the quantity of drugs and his role.

[21]That starting point is confirmed by the cases counsel have referred to me:

(a)Tuuta v R:12 this case also involved charges arising from a search of Mr Tuuta’s vehicle in which 16.3 g of methamphetamine, $4,230 cash, a sawn-off shotgun and 11 rounds of ammunition were found. It was accepted that his role was in the lesser category, as a low or street-level dealer.13 The Judge considered that a starting point of two to two and  a half years’ imprisonment on the methamphetamine offending would have been within range. Mr Henderson had a much smaller quantity of drugs and had less cash. This supports a starting point of two years’ imprisonment.

(b)Pona v R:14 this  case  involved  charges  arising  from  a  search of Mr Pona’s home, where the police found a firearm, ammunition and evidence of methamphetamine dealing. A two year starting point was adopted for charges of supplying and offering to supply a total of 22 g of methamphetamine.

(c)Giles v R:15 this case involved 15 charges of offering to supply methamphetamine over a four month period involving a total quantity of four grams. The High Court upheld a starting point of two years and nine months because Mr Giles was not selling the drugs to fund his own use but was doing so to fund his lifestyle.

[22]   The much smaller quantity of drugs and the lesser cash than in Tuuta, and the evidence of higher quantity in Pona, confirm that a starting point of no more than two years’ imprisonment was appropriate for Mr Henderson on the methamphetamine charge. Although the quantity in Giles was similar, the motivation for the dealing distinguishes it.

12     Tuuta v R [2019] NZHC 2788.

13 At [28].

14     Pona v R [2020] NZHC 3503.

15     Giles v R [2020] NZHC 2372.

Totality

[23]   The next issue is whether the Judge erred by failing to make an adjustment for totality. It is true that the Judge made no explicit reference to totality. The question for this Court on appeal is whether a totality adjustment should have been made to reflect the gravity of the offending as a whole.16

[24]   On the firearms and ammunition charges, Mr Henderson refers to the nine months uplift that was adopted in Tuuta and Pona. He acknowledges, however, that the 12 months’ uplift cannot be said to be out of range given the Court of Appeal’s recent decision in Joyce.17 There the Court upheld an uplift of 18 months’ imprisonment saying that it has “consistently upheld uplifts of between 12 and 18 months’ imprisonment when those involved in drug dealing are found with firearms in their possession”.18

[25]   I agree that the 12 months’ uplift was not out of range. There were three firearms in Joyce, one of which was loaded, so that was a more serious case than here. Tuuta pre-dated Joyce. Although Pona post-dated Joyce, the focus on appeal was the starting point for the quantity of drugs as determined on the appeal. The Judge rejected an argument that the lenient uplift for the firearms offending in the District Court saved the end sentence from being manifestly excessive, implicitly acknowledging the uplift was lenient.

[26]   I consider also that it is not particularly material that it was not proven whether the ammunition fitted the firearm found in the vehicle. I agree with the respondent that the only available inference was that the ammunition was intended to be used for the same purpose as the firearm, that is, in association with Mr Henderson’s drugs operation (as admitted by Mr Henderson in the pre-sentence report) with all the risk that this entails.

16     Sentencing Act 2002, s 85. Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA85.01].

17     Joyce v R, above n 5.

18 At [24].

[27]   I agree with the Judge that the dangerous driving charge was a bad case of its kind. It warranted an uplift on the starting point for the other charges and the two months’ uplift the Judge applied was appropriate.

[28]   With a starting point of two years’ imprisonment on the methamphetamine charge, an uplift of one year for the firearms and ammunition charge, and two months for the driving charge, that gives an adjusted starting point of three years and two months’ imprisonment. Standing back to consider whether that is wholly out of proportion to the gravity of the offending as a whole, I am not persuaded that it is. I therefore consider a totality adjustment was not required.

Manifestly excessive end sentence

[29]   The last question is whether the end sentence was manifestly excessive because the starting point of two and a half years’ imprisonment for the methamphetamine offending was too high.19

[30]   There was no suggestion that the Judge should have uplifted the total starting point for Mr Henderson’s limited conviction history, nor that the Judge’s discounts for personal mitigating factors were out of range. Applying those discounts to the adjusted starting point of three years and two months’ imprisonment gives an end sentence of two years and two months’ imprisonment. That compares with the end sentence of two years and six months’ imprisonment imposed in the District Court. A four month difference is significant relative to a sentence of this length. Contrary to the respondent’s submission, it goes beyond “tinkering”.

Result

[31]   The appeal is allowed. The sentence of two years and six months’ imprisonment for the charge of possession of methamphetamine for supply is quashed. A sentence of two years and two months’ imprisonment is substituted. The sentences on the other charges remain.

Mallon J

19     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [32]-[35].