Henderson v R
[2017] NZCA 605
•19 December 2017
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA549/2016 [2017] NZCA 605 |
| BETWEEN | WIREMU HENDERSON |
| AND | THE QUEEN |
| CA12/2017 | |
| BETWEEN | JOHN PERRY MORGAN HENDERSON |
| AND | THE QUEEN |
| Hearing: | 4 September 2017 (further submissions received 12 September 2017) |
Court: | French, Williams and Woolford JJ |
Counsel: | J K W Blathwayt for Appellant in CA549/2016 |
Judgment: | 19 December 2017 at 10.30 am |
JUDGMENT OF THE COURT
AWiremu Henderson’s appeal against conviction is dismissed.
BJohn Henderson’s appeal against sentence is dismissed
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
John Henderson is the father of Wiremu Henderson and Perry Henderson. John and Wiremu were convicted of drug related offending following a joint jury trial in the District Court presided over by Judge Tuohy.[1]
[1]Perry Henderson was also a defendant at the trial, though was not convicted. He was found not guilty on one charge of being an accessory after the fact to John Henderson’s possession of methamphetamine for supply, and received a discharge without conviction for a one charge of failing to stop.
Wiremu now appeals his two convictions, one for possession of methamphetamine for supply and the other for possession of a psychoactive substance known as N-BOMe for supply.[2] John appeals his sentence.
Background
[2]The jury acquitted Wiremu Henderson of a third charge of possession of cannabis for supply.
The charges against the Hendersons arose primarily as the result of a police search in May 2015 of a residential property at Astrolabe Street in Cannons Creek. John Henderson had a beneficial interest in the property. It was occupied by him, his two sons and Wiremu Henderson’s girlfriend, Ms Grace Arnold.
The police arrived at the address at 6.00 am. They surrounded the property, some officers stationed at the front, others at the rear. After loudly announcing their presence, some officers observed a male person open a window and drop an item into a bush below. The item was later retrieved and found to be a plastic bag containing approximately 20 grams of methamphetamine. Inside the house, police found Wiremu and Grace in one bedroom (bedroom one) and Perry Henderson in a second bedroom. A fourth person was seen fleeing from the rear of the house, leaving behind a shoe, and a trail of cash and bagged methamphetamine. Inside the house, police discovered a significant quantity of drugs and other drug related material in bedroom one. Drugs were also found in the lounge which John had been using as sleeping quarters.
Wiremu, Grace and Perry were arrested on the day of the search. John, whom the Crown say was the man who ran away from the house, was not located for several months.
Wiremu Henderson’s appeal against conviction
Conviction for possession of methamphetamine for supply — identification evidence
Wiremu Henderson’s conviction for possession of methamphetamine for supply relates to the contents of the bag found in the bush.
During the course of the trial, Judge Tuohy ruled that evidence to be given by a Detective Stewart about the identity of the person who threw the bag from the window was admissible.[3] Detective Stewart was part of the search team. He had had previous dealings with Wiremu four years earlier, but did not immediately recognise the person he saw at the window although he was able to give a description of that person’s features — Māori, male, chubby face, aged between
16–20 years. It was only after the detective had entered the house and saw the three occupants that he identified Wiremu as the face at the window. He did so essentially by a process of elimination. As between the three persons found in the house (Wiremu, Grace and Perry) Wiremu was, he said, the one most consistent with the person he had seen at the window.[3]R v Henderson [2016] NZDC 15974.
On appeal, Wiremu’s counsel Mr Blathwayt contended the Judge was wrong to admit this evidence and further that the Judge’s directions to the jury about the evidence were inadequate. In Mr Blathwayt’s submission, the evidence was unsafe and a formal identification procedure should have been followed.
Mr Blathwayt pointed out that it was dark at the time of the search; Detective Stewart only caught a fleeting glance of the person at the window; although other officers saw a man at the window, Detective Stewart was the only one who identified the man as Wiremu; his identification was unduly influenced by his previous contact with Wiremu; and his deduction was based on a faulty assumption there were only three possibilities. Mr Blathwayt suggested the person who ran from the address could have been the one at the window and, because of evidence of someone having recently been cooking bacon, it was possible for there to have been a fifth person in the house.
We do not accept these submissions.
In our view, it is highly arguable the evidence of Detective Stewart is more properly classified as resemblance evidence — of the three occupants Wiremu most closely resembled the person at the window — rather than visual identification evidence triggering s 45 of the Evidence Act 2006.[4] In any event, even if we are wrong on that, we agree with the Judge that in the circumstances there was for the purposes of s 45(1) a good reason not to follow a formal identification procedure. Having regard to the basis of Detective Stewart’s “identification”, a formal procedure would have been an entirely artificial exercise and pointless.[5] Indeed, we consider that had a formal procedure been undertaken, it might have unfairly bolstered the Crown case. The limited basis on which the detective asserted it was Wiremu was clearly before the jury.
[4]See R v Turaki [2009] NZCA 310 at [57]–[58]; and Ahomiro v R [2016] NZCA 353 at [36].
[5]See Higgins v R [2017] NZCA 486 at [15]; and Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [17].
There was compelling supporting evidence from three other witnesses relating to the window. One officer near the window also saw it being opened. Two others near to Detective Stewart saw a male drop something out the window. One of those said it was a Māori or Pacific Islander male, aged late teens or early 20s.
Further, the window from which the bag was thrown was the window of Wiremu’s bedroom where he and Grace were found. The key issue was whether the jury could be sure there were no other male occupants in the house when the police arrived. That in turn depended on whether there was enough time after the police had announced their presence for someone else to enter bedroom one, discard the bag and flee from the house. The evidence suggested not. There was the further consideration that if the man fleeing the house was John — and the forensic evidence strongly suggested it was — he did not match the age of the man at the window.
In our view, in all those circumstances there was ample evidence on which the jury could be satisfied Wiremu was the man at the window.
As regards the adequacy of the Judge’s direction, the Judge gave the jury an identification warning; mentioning the need for special caution and explaining the reasons for that special caution. He also fairly summarised the defence challenges to the evidence, including the key contention that the jury could not discount the possibility of there being others in the house.
We are satisfied the evidence was properly before the jury and that criticisms of the Judge’s directions are not justified. We accordingly reject this ground of appeal.
Conviction for possession of N-BOMe for supply — text messages
During the course of the search, police found 73 tabs of N-BOMe in drawers located in bedroom one. Grace and Wiremu were charged with possession of these tabs for supply. Grace pleaded guilty before trial and was convicted and sentenced.
In support of its case against Wiremu, the Crown relied on the evidence of where the tabs were found as well as evidence of text messages. The text messages in question were incoming and outgoing texts on a phone found in bedroom one on the day of the search. Some of the text messages involve discussion of a sale of tabs to a third party (the incriminating texts). They include an incoming text asking if there are tabs at home because Teish wants some. This is confirmed and permission given to progress the sale. Price is also discussed.
The Crown summonsed Grace Arnold to give evidence, but she did not appear. At trial and before us, Mr Blathwayt argued there was no or insufficient evidence to attribute the authorship of the incriminating texts to Wiremu or Grace and that the texts were inadmissible hearsay.[6]
[6]See R v Henderson [2016] NZDC 22086.
We disagree. Although the police were not able to prove the phone belonged to Wiremu by reference to a service provider, there was compelling circumstantial evidence linking him to the phone. The phone was found in the couple’s bedroom as were the tabs. One of the texts, sent to another number, said “It’s willy”.[7] William is the English equivalent of Wiremu. The incriminating texts were to a person saved in the phone’s contact list as “Baby My”. Other texts not relating to drugs, but between the same phone numbers, strongly suggest the authors of the texts were in a romantic relationship. Grace was Wiremu’s girlfriend. There was also evidence of Grace’s conviction for supply in relation to the tabs.
[7]This text was sent the day before the incriminating texts.
As regards the hearsay argument, we consider that, correctly analysed, the text messages are not hearsay because they are not statements as defined by s 4 of the Evidence Act. Rather, they are implied or unintended assertions for the reasons explained by Simon France J in R v Holtham and this Court in McKenzie v R.[8] The probative value of the texts is not dependent on the truth of their contents. Their relevance derives entirely from inference. In any event, even if the texts were hearsay, they would in our assessment clearly satisfy the reliability test under s 18 and could not be considered unfairly prejudicial for the purpose of s 8.
[8]R v Holtham [2008] 2 NZLR 758 (HC) at [45]; and McKenzie v R [2013] NZCA 378. See also McKenzie v R [2013] NZSC 109 at [7].
In reaching this conclusion, we have not overlooked arguments over the admissibility of evidence that the phone number of “Baby My” was the same phone number recorded for Grace on Perry’s cellphone. Perry’s phone also contained a text message from the “Baby My” number saying “It’s grAce this is my number”. Perry did not give evidence. We acknowledge the evidence relating to Perry’s phone may well give rise to a hearsay problem. We consider it to be reliable but in any event are satisfied that even without it the jury was entitled to attribute the messaging to Grace and Wiremu and therefore to rely on the text messages as evidence tending to show Wiremu had possession and control of the tabs.
Another argument raised by Mr Blathwayt was that the Judge should have directed the jury it was required to be satisfied beyond reasonable doubt the text messages were a conversation between Wiremu and Grace, but failed to do so. However, as submitted by the Crown, it is only the elements of the offence that must be proved beyond reasonable doubt, not each individual item of circumstantial evidence.[9] The Judge’s directions including his question trail relating to onus of proof were correct and clear.
[9]Stratford v Ministry of Transport [1992] 1 NZLR 486 (HC) at 490; and Ngarino v R [2011] NZCA 236 at [26]–[27].
We conclude that Wiremu has not demonstrated any errors or risk of a miscarriage that would warrant appellate intervention. The appeal against conviction is accordingly dismissed.
John Henderson’s appeal against sentence — forfeiture
Sentencing in the District Court
John Henderson was convicted of seven offences arising from the May 2015 search as well as a search at the time of his arrest in October 2015 and a further search in March 2016. Those convictions were:
two convictions for possession of methamphetamine for supply;
two convictions for possessing cannabis resin for supply;
one conviction for possession of cannabis for supply;
one conviction for cultivating cannabis; and
one conviction for resisting arrest.
Judge Tuohy found on the basis of the amount of cash found in John’s possession (over $300,000) and the value of the methamphetamine ($100,000) that John was dealing on a very substantial scale and for profit. The Judge adopted a starting point of seven years’ imprisonment with an uplift of 18 months for the cannabis offending adjusted for totality.[10]
[10]R v Henderson [2016] NZDC 26055 at [3]–[4] and [12]–[15].
At the time of the sentencing in December 2016, there were civil proceedings in train under the Criminal Proceeds (Recovery) Act 2009 against John for assets forfeiture and profit forfeiture orders. These included an application for the forfeiture of his interest in the house at Cannons Creek. John’s counsel, Mr Miller, told Judge Tuohy the Crown was very confident the house would be forfeited and that this along with other personal mitigating factors warranted a discount of at least six months.
The Judge however declined to take either the possibility of forfeiture or other personal factors into account.[11] He also declined to increase the sentence on the grounds of John’s previous drug related offending which was extensive, but which mostly related to possession and cultivation of cannabis.[12] That meant the end sentence was eight and a half years’ imprisonment.
[11]At [22]–[24].
[12]At [16].
The proceedings under the Criminal Proceeds (Recovery) Act were resolved by consent order on 30 June 2017. For the purposes of the settlement, the value of John’s interest in the house was quantified as $45,000 although he claims to have lost much more. In his submissions, John explained the following. He and his wife once jointly owned the house and when they divorced, his sister obtained a bank loan so he could pay his wife out for her share. The sister then became a joint owner. She has been paying the mortgage. She has also paid the $45,000 settlement to protect her interest as well as meeting the cost of significant repairs and methamphetamine decontamination to render the house habitable, expending in total more than $130,000. In light of her contribution, John and his family have agreed he should no longer have any claim to the house which when renovated will have a value well over $250,000.
The sole issue on appeal is whether a discount should have been given for the forfeiture of John’s interest in what was once his family home.
Arguments on appeal
The main reason Judge Tuohy gave for not granting a discount was that he considered it would be premature to do so in light of the fact the forfeiture proceedings were still unresolved.[13]
[13]At [24].
There was however another impediment. Section 10B of the Sentencing Act 2002, which requires that in sentencing an offender the Court must take into account any forfeiture of property, is limited by its terms to forfeiture of property pursuant to an instrument forfeiture order. Forfeiture of property pursuant to asset forfeiture orders or profit forfeiture orders is not mentioned. Further, as explained below, it has been held that the nature of civil forfeiture orders is such they do not warrant discounts in sentencing.
Section 10B states:
10BCourt must take into account instrument forfeiture order or successful application for relief
(1)In sentencing or otherwise dealing with an offender convicted of a qualifying instrument forfeiture offence, the court must take into account—
(a)any instrument forfeiture order made, or to be made, in respect of property used to commit, or to facilitate the commission of, the qualifying instrument forfeiture offence:
(b)any forfeiture of that property by any other order or means arising from the offender’s conviction:
(c)any order for relief made under section 142L or 142M in favour of another person in respect of property used to commit, or to facilitate the commission of, the qualifying instrument forfeiture offence:
(d)the nature of the relationship between that person and the offender:
(e)the likely benefit to the offender of any order referred to in paragraph (c).
(2)In deciding the weight to be given to any matter referred to in subsection (1)(a), (b), or (d), the court must take into account—
(a)the value of the property that is the subject of the instrument forfeiture order or that is otherwise forfeited:
(b)the nature and extent of the offender’s interest in that property.
(3)Without limiting any other powers of a court to adjourn, in any case contemplated by this section a court may adjourn the proceedings until—
(a)any property that is the subject of a forfeiture order has been surrendered to the Official Assignee; or
(b)any appeal or application for relief in relation to an instrument forfeiture order or any other proceeding under the Criminal Proceeds (Recovery) Act 2009 has been determined.
On appeal, counsel for John, Mr Miller, argued:
(a)Judge Tuohy should have adjourned the sentencing to allow the Criminal Proceeds Recovery Act proceedings to be resolved.
(b)Section 10B applies to all types of forfeiture orders.
(c)Even if s 10B did not apply, Judge Tuohy should have given a discount having regard to the intention of the legislature when enacting the Criminal Proceeds Recovery Act as well as general principles of sentencing including those relating to offers to make amends. It was unjust that different sentences on conviction should depend on the “caprice of prosecutors” as to which forfeiture process to use to forfeit an offender’s legitimately held property.
(d)Another option was for the Judge to have adjourned the proceedings and compelled the Crown to file instrument forfeiture proceedings instead of asset and profit forfeiture proceedings and then applied s 10B.
In Mr Miller’s submission, given the extent of the loss suffered by John as outlined above at [29] of this judgment, a discount of at least two years was warranted.
Analysis
In our view, Mr Miller’s submissions take insufficient account of the important distinctions between the three types of forfeiture orders, the wording of the relevant statutory provisions, and the case law.
Applications for assets and profit forfeiture orders relate to the proceeds of crime and are civil proceedings regulated by the Criminal Proceeds (Recovery) Act. The making of assets and profit forfeiture orders is not dependent on a criminal conviction.[14] In contrast, instrument forfeiture orders, as the name suggests, concern property used to commit or to facilitate the commission of a qualifying offence.[15] They are part of criminal proceedings. Instrument forfeiture orders have their own separate regime under the Sentencing Act.[16]
[14]See Criminal Proceeds (Recovery) Act 2009, ss 4(1)(a), 50 and 55.
[15]Sentencing Act 2002, s 142N(1) and s 4(1), definition of “instrument of crime”.
[16]See ss 142A–142Q; and note Criminal Proceeds (Recovery) Act, ss 70–79.
The wording of s 10B of the Sentencing Act is clear and unambiguous. It does not permit of any interpretation other than that it is dealing only with instrument forfeiture orders. We agree with the Crown that had Parliament intended s 10B to extend to all types of forfeiture orders, it would have said so and not included the word “instrument” in either the titles of the section or the sections themselves.[17]
[17]See Sentencing Act, headings preceding ss 10B and 142A.
The fact that it was a deliberate choice is reinforced by reference to the legislative history including a Select Committee recommendation that the term “qualifying forfeiture offence” contained in the Bill’s original version of s 10B be amended to “qualifying instrument forfeiture offence” to make it clear what type of order the provision was addressing.[18] Mr Miller suggested that an explanatory note to the Criminal Proceeds (Recovery) Bill showed an intention to give the sort of discount he seeks.[19] However, in our view it is clear the passage on which he relies is dealing exclusively with instrument forfeiture orders.
[18]Criminal Proceeds (Recovery) Bill 2007 (81–1), cl 247; and Criminal Proceeds (Recovery) Bill 2007 (81–2) (select committee report) at 3. Note the enacted legislation amended the Sentencing Act.
[19]Criminal Proceeds (Recovery) Bill (81–1) (explanatory note) at 4.
Mr Miller’s argument regarding the general provisions and policies of the Sentencing Act also fails to take sufficient account of the conceptual differences between the types of orders. As noted in Commissioner of Police v Skinner, the confiscation of instruments of crime may be regarded as a penalty, but the confiscation of the proceeds of crime involves the confiscation of something the defendant should not have obtained in the first place.[20] The order forces the defendant to disgorge ill-gotten gains which logically renders it of little or no relevance to sentencing. It is not punitive and the giving of a discount would mean a windfall. Instrument forfeiture orders are, however, punitive because they relate to the forfeiture of legitimate assets that have been used for an illegitimate purpose.
[20]Commissioner of Police v Skinner [2013] NZHC 2956 at [37(e)]. Under the Proceeds of Crime Act 1991, see R v Brough [1995] 1 NZLR 419 (CA) at 424; and R v Andrian (1996) 13 CRNZ 449 (CA) at 453.
This conceptual difference is further reflected in the fact that when it comes to the civil forfeiture orders, the court has no residual discretion once the grounds for making an order are established, whereas it does under the Sentencing Act in relation to instrument forfeiture orders.[21]
[21]Criminal Proceeds (Recovery) Act, ss 50(1) and 55(1); compare Sentencing Act, s 142N.
Having regard to all those factors, we conclude that as a general rule civil forfeiture orders do not warrant a discount in sentencing. Significantly, the same approach was taken by this Court in R v Brough when considering the previous legislative scheme under the Proceeds of Crimes Act 1991.[22]
[22]R v Brough, above n 20.
We have used the phrase “as a general rule” advisedly. That is because in Brough, this Court acknowledged that credit might be given at sentencing on account of forfeiture in exceptional circumstances.[23] Arguably, that exception should no longer apply in the case of civil forfeiture orders because of subsequent legislative changes, in particular the enactment of s 10B and the change that a criminal conviction is no longer required before the proceeds of crime are liable to forfeiture.
[23]At 424.
However, it is not necessary for us to determine that issue because even if an “exceptional circumstances” exception still exists, the facts of this case are not exceptional. In particular, we are satisfied:
(a)There was nothing improper or capricious in the Crown proceeding under the civil forfeiture regime. The evidence did not establish dealing from the house.
(b)Having consented to the civil orders, it is not now open to John to attempt to recast the forfeiture as in substance a different type of forfeiture.
(c)In so far as John seeks to attribute the degradation of the property and resulting loss of equity to the proceedings under the Criminal Proceeds (Recovery) Act, we are not persuaded there is any causal nexus.
(d)The starting point adopted by the Judge could have been higher. The absence of a discount for the civil forfeiture order has not rendered the overall sentence manifestly excessive.
Outcome
Wiremu Henderson’s appeal against conviction is dismissed.
John Henderson’s appeal against sentence is dismissed
Solicitors:
WCM Legal, Carterton for Appellant in CA549/2016
John Miller Law, Wellington for Appellant in CA12/2017
Crown Solicitor, Wellington for Respondent
15
6
0