Henwood v R
[2013] NZCA 528
•31 October 2013 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA137/2013 [2013] NZCA 528 |
| BETWEEN | MARK DESMOND HENWOOD |
| AND | THE QUEEN |
| Hearing: | 22 October 2013 |
Court: | Miller, Venning and Andrews JJ |
Counsel: | M Pecotic and G Ghahraman for Appellant |
Judgment: | 31 October 2013 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
Mark Henwood pleaded guilty to one count of conspiracy to manufacture methamphetamine, two counts of supplying GBL, two counts of conspiracy to supply GBL, five counts of possessing pre-cursors, material or equipment for the manufacture of methamphetamine, one count of conspiracy to supply a pre-cursor, and one count of attempting to pervert the course of justice.
On 8 February 2013 Mr Henwood was sentenced by Woodhouse J, together with a number of his co-offenders.[1] Mr Henwood was sentenced to six years, four months imprisonment. He appeals against his sentence on the ground that it was manifestly excessive.
The High Court sentence
[1]R v Duncan & Ors [2013] NZHC 193.
Woodhouse J took the charge of conspiracy to manufacture methamphetamine as the lead offence. This was a conspiracy involving Mr Henwood, and three of his co-offenders, Mr Bramley, Mr Corlett and Ms Hastie. The conspiracy had reached the point where manufacturing on a large scale could have started. When the operation was terminated by the arrest of Mr Bramley over six kilograms of washed ContacNT was found in Mr Bramley’s car. This could have produced between 1.4 and 2.2 kilograms of methamphetamine.
The Judge was satisfied that Mr Henwood’s role, although below that of the driving forces behind the operation, Mr Duncan and Mr Bramley, was significantly more central than that of Mr Corlett.[2] The Judge sentenced Mr Henwood on the basis he had supplied the six kilograms of ContacNT to Mr Bramley. Mr Henwood had also moved other chemicals and equipment to the site of the planned manufacture at McKenzie Road, Mangatawhiri. Woodhouse J took a starting point of six years imprisonment. The Judge then uplifted that by two years to reflect the other offending, noting that Mr Henwood was a key player in the attempt to pervert the course of justice.
[2]At [51].
From the adjusted starting point of eight years Woodhouse J allowed a credit of 20 months to reflect remorse, other personal factors and the guilty plea leading to the end sentence of six years, four months imprisonment.
Appeal points
In support of the appeal Ms Pecotic submitted that:
(a)Mr Henwood’s role in the conspiracy did not justify the starting point of six years imprisonment,
(b)the starting point lacked parity with the starting point adopted in relation to Mr Henwood’s co-offenders, Mr Corlett and Ms Hastie;[3] and
(c)the uplift of two years to reflect the totality was manifestly excessive and also lacked parity with the uplift in the sentences imposed on Mr Henwood’s co-offenders.[4]
Discussion
Mr Henwood’s role
[3]The starting point adopted for Mr Corlett was six and a half years, for each of two conspiracies to manufacture and for Ms Hastie, three years.
[4]The Judge imposed an uplift of one year in the case of both Mr Corlett and Ms Hastie.
Ms Pecotic submitted Woodhouse J was wrong to find that Mr Henwood was principally responsible for supplying the entire six kilograms of ContacNT to Mr Bramley, and consequently attributed a far higher level of culpability to Mr Henwood than was warranted. We disagree. We consider it was open to the Judge to draw that inference from the summary of facts.
In its general background, the summary of facts states:
HENWOOD arranged the precursor materials that were later found in BRAMLEY’S possession.
Ms Pecotic suggested this was a reference to the items found on a trailer at the McKenzie Road, Mangatawhiri address on 21 August 2010. However, the items on the trailer were items of material and equipment required for the manufacture of methamphetamine, but did not include the pre-cursor, ContacNT. The general reference to the pre-cursor materials found in Mr Bramley’s possession was a reference to the ContacNT found with him when he was arrested on 29 August 2010. This becomes apparent when the later, more detailed provisions of the summary of facts are considered:
Between the 21st and 24th August 2010 BRAMLEY, HENWOOD and CORLETT made a concerted effort to locate suitable quantities of ContacNT. DUNCAN was kept appraised of how the search was proceeding.
On the 22nd of August 2010 BRAMLEY and HASTIE met the accused HENWOOD at a Coromandel address in an effort to progress the next manufacture.
That same day Corlett advised Bramley that [he] was going to try and complete a further extraction of pseudoephedrine from the mixture left over from a previous extraction. Bramley was thinking about doing that exact same thing and the pair agreed to do the extraction together on Bramley’s return from [the] Coromandel.
...
On his arrival back in Tauranga Bramley advised Duncan that a purchase of ContacNT had been arranged and the pair agreed to meet later on that night.
On the 24th of August 2010 Bramley and Henwood once again met up at McKenzie Road in Mangatawhiri.
Whilst driving back from Mangatawhiri Bramley advised Corlett that he now had “fucken heaps” and that Corlett should be prepared to commence a pseudoephedrine extraction as soon as Bramley returned.
Those facts and the sequence of events support the conclusion that on 21 August the conspirators had the equipment and were ready to and intended to manufacture further methamphetamine but were hampered in doing so by their lack of ContacNT as a source of pseudoephedrine, so much so that they were going to try and extract pseudoephedrine from mixtures left over from previous extractions.
However, that changed following the meeting between Mr Bramley and Mr Henwood on 24 August. Prior to that meeting Mr Bramley had told Mr Duncan that a purchase of ContacNT had been arranged. Immediately following that meeting Mr Bramley told Mr Corlett that he now had “heaps” and that Mr Corlett should get ready to commence the pseudoephedrine extraction.
The clear inference is that Mr Henwood supplied Mr Bramley with “heaps” of ContacNT on 24 August, and that was the pre-cursor that Mr Bramley was found in possession of when arrested on 29 August.
Ms Pecotic suggested Mr Corlett may have supplied some of the ContacNT, instead of Mr Henwood.
However the summary records that Mr Corlett received the ContacNT from Mr Bramley and over the next few days completed the first stage of pseudoephedrine extraction and washed it. Mr Corlett then delivered the washed ContacNT back to Mr Bramley. There is no suggestion Mr Corlett supplied further ContacNT to Mr Bramley.
Ms Pecotic sought to suggest that because one of the buckets containing the washed ContacNT was found to be 40 per cent pure pseudoephedrine and the other was found to be 39 per cent pure pseudoephedrine they may have come from different sources. We consider the difference between 39 and 40 per cent to be insignificant, particularly as the process involved “washing” the ContacNT to extract the pseudoephedrine.
For those reasons we are satisfied that it was open to the Judge to conclude that Mr Henwood supplied the ContacNT which was found in Mr Bramley’s possession on 29 August. Ms Pecotic conceded that if the Court came to that conclusion it was difficult to submit the starting point of six years was not available for the offending.
Was there a disparity?
Ms Pecotic however persisted with her submission that there was a disparity between that starting point and the starting point of six and a half years for the two conspiracies alleged against Mr Corlett.
Again, however, we consider it was open to the Judge to conclude that Mr Corlett played a lesser role in the conspiracy than Mr Henwood had, and that Mr Corlett’s role in the second conspiracy was also limited, so that, having regard to totality, the starting point by the Judge of six and a half years for both conspiracies for Mr Corlett, was not out of range. It was open for the Judge to categorise Mr Henwood’s involvement in the conspiracy, while below that of Mr Bramley, as significantly more central than that of Mr Corlett.
Next, while it may be said the starting point adopted for Ms Hastie of three years reflected a merciful approach by Woodhouse J, the Judge correctly noted that in fixing a starting point he had to assess her culpability. It was open to him to find that her culpability was less because her involvement was as a direct result of her personal relationship with Mr Bramley and that she was acting at his direction. The Judge accepted Mr Bramley had a dominating personality, and that Ms Hastie was further influenced in her actions by her drug addiction.[5]
[5]R v Hastie [2013] NZHC 1564 at [12].
Not every difference in sentence or starting point for co-offenders will support an appeal on the ground of disparity. The issue is whether a reasonably minded independent observer, aware of all the circumstances of the offence and of the offender, would think that something had gone wrong with the administration of justice.[6] The difference must be unjustifiable or gross.[7] Importantly, as this Court observed in MacFarlane v R:[8]
A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence.
The uplift
[6]R v Lawson [1982] NZLR 219 (CA) at 223.
[7]R v Rameka [1973] 2 NZLR 592 (CA) at 594.
[8]Macfarlane v R [2012] NZCA 317 at [24].
Finally, Ms Pecotic challenged the uplift of two years for the related offending. Woodhouse J had recorded that Ms Pecotic accepted the two year uplift. We accept her explanation that was premised on the basis the Court accepted her starting point for the lead offending of four and a half to five years.
However, while the uplift for Mr Henwood of two years was more than the one year for Mr Corlett and Ms Hastie, a review of the summary of facts again discloses that the appellant was more actively involved in the attempting to pervert the course of justice charge, in particular, than the others. Mr Henwood effected the attempt to pervert by giving an associate the money and a car in exchange for that associate taking responsibility for the offending. As the Judge noted, Mr Henwood was a key player in the offending. Mr Corlett’s role was limited to that of an intermediary. He attempted to persuade the associate to admit to the possession of the illicit items. Ms Hastie’s role was described as acting as a conduit and applying pressure, but there were no details provided of her actions.
Given the uplift also related to two counts of supplying GBL, two counts of conspiracy to supply GBL, five counts of possessing pre-cursor material or equipment, and one count of conspiracy to supply a pre-cursor, the uplift of two years was unexceptional.
The end sentence of six years four months is also supported by an overall review of the sentence. As noted, from the starting point of eight years the Judge deducted 20 months, which is fractionally above 20 per cent for remorse, personal factors and the guilty plea.
We agree with the Crown assessment that, given the pleas were entered very late in the piece, and considering the strength of the Crown case, a reduction of 10 per cent for the guilty pleas was as high as could have been supported by application of the Hessell principles.[9] The Judge effectively allowed over 11 months reduction for remorse and personal factors, which in the circumstances could be regarded as generous given the nature of the offending as drug offending.
Result
[9]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
For those reasons the appeal against sentence is dismissed.
Solicitors:
Crown Solicitor’s Office, Auckland for Respondent
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