Henderson v The Queen - [2021] NZHC 2259

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-156

[2021] NZHC 2259

BETWEEN
COLIN CLARK HENDERSON

Appellant

AND

THE QUEEN

Respondent

Hearing: 30 August 2021

Counsel:

L Ameye for Appellant

J Mara and E Hoskin for Respondent

Judgment:

31 August 2021

JUDGMENT OF WHATA J

This judgment was delivered by me on 31 August 2021 at 3.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Crown Law, Wellington

HENDERSON v R [2021] NZHC 2259 [31 August 2021]

[1] Colin Henderson appeals against a sentence of eight months’ home detention imposed by Judge Collins in the Auckland District Court1 for three offences, to which Mr Henderson pleaded guilty: managing a company while bankrupt (representative),2 concealing property3 and misleading the Official Assignee (representative).4 Mr Henderson appeals on the bases the starting point was inappropriate and that a larger discount for guilty pleas should have been afforded to him. He seeks a substituted sentence of 5 months’ home detention. Mr Henderson also applies to adduce evidence on appeal.5

Background

[2]On 3 February 2011, Mr Henderson was adjudicated bankrupt owing creditors

$85,210.63. On 4 February 2011, by way of letter, he was told that had to advise the Official Assignee of any changes in income and employment and that he was subject to restrictions on managing a business or being a company director. In breach of these requirements, Mr Henderson operated a produce brokering business for several years without notifying the Official Assignee. In the period 15 February 2011 to 25 May 2017, $208,272.71 of funds were transacted through Mr Henderson’s bank account in respect of his brokering business. He received a further $37,334.68 between July 2017 and March 2018. He also misled the Official Assignee about his income. The offending involved transacting under various trading names.

[3] Mr Henderson was charged on 22 September 2017 but did not plead guilty until the morning of the trial on 18 June 2018. The next day he filed a memorandum indicating that he wanted to contest the summary of facts or withdraw his plea. His application to withdraw his plea was dismissed on 4 February 2019 and a disputed facts hearing was set down for 23 September 2020. However, shortly before the hearing, a summary of facts was agreed,6 including a statement that the business

1      R v Colin Clark Henderson [2021] NZDC 6870 [District Court decision].
2      Insolvency Act 2006, ss 436(1)(b) and 149(1)(a). Maximum penalty two years’ imprisonment.
3      Insolvency Act, s 420(2)(a). Maximum penalty three years’ imprisonment, a fine of $10,000, or both.
4      Insolvency Act 2006, s 440(1)(b). Maximum penalty 12 months’ imprisonment, a fine of $5,000, or both.
5      Under s 334 of the Criminal Procedure Act 2011.
6      Under s 9 of the Evidence Act 2006.

income does not take into account any outgoings and therefore the actual profit Mr Henderson derived is unknown.

[4] Mr Henderson is 71 years old. He contracted a serious blood infection in April 2019, symptoms of…

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 The Queen

Details

AGLC: Henderson v The Queen [2021] NZHC 2259
Case: [2021] NZHC 2259
Decision Date: 31 August 2021

CaseChat Overview and Summary

The appellant, Colin Henderson, appealed a sentence of eight months’ home detention imposed on him by Judge Collins in the Auckland District Court for three offences to which he pleaded guilty. The offences were managing a company while bankrupt, concealing property, and misleading the Official Assignee. Henderson argued that the starting point was inappropriate and that a larger discount for guilty pleas should have been afforded to him. He sought a substituted sentence of five months’ home detention. Henderson also applied to adduce evidence on appeal. The Court had to decide whether the starting point for sentencing was appropriate, whether the discount for personal factors was appropriate, and whether the evidence adduced on appeal was fresh, credible, and cogent.

The Court found that the starting point imposed in the District Court was too high. While the period of offending, six years, revealed an arrogant disregard by Henderson for his obligations while insolvent, a starting point of 28 months’ imprisonment was disproportionate to the offending. A starting point in the order of 22-24 months’ imprisonment for the totality of the offending better reflected Henderson’s culpability. The Court also found that the discount for personal factors was appropriate. An eight-month sentence of home detention broadly corresponded to a 16-month term of imprisonment. Henderson therefore received cumulative discounts of about 12 months from the starting point, or 42 per cent. That is a very generous discount given that a five to 10 per cent discount for his guilty pleas was within range. The effect of this is that Henderson received a 32-37 per cent discount for his personal circumstances. From a starting point of 22 months, that is still an effective cumulative discount of 27 per cent. The commuting of sentence to home detention also reflects a strongly rehabilitative approach. While understandable given Henderson’s poor health, it was nevertheless generous when compared to the outcomes, imprisonment, in the cases cited to the Court.

The appeal was dismissed. The Court found that the starting point imposed in the District Court was too high, but that the discount for personal factors was appropriate. The Court also found that the evidence adduced on appeal was fresh, credible, and cogent, but did not make a material difference to the outcome in this case.

Orders