Henwood v R - [2013] NZCA 528

IN THE COURT OF APPEAL OF NEW ZEALAND

CA137/2013
[2013] NZCA 528

BETWEEN	MARK DESMOND HENWOOD Appellant
AND	THE QUEEN Respondent

Hearing:	22 October 2013
Court:	Miller, Venning and Andrews JJ
Counsel:	M Pecotic and G Ghahraman for Appellant N Walker for Respondent
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…

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 Henwood v R

Details

AGLC: Henwood v R [2013] NZCA 528
Case: [2013] NZCA 528
Decision Date: 31 October 2013 at 3.00 pm

CaseChat Overview and Summary

Mark Desmond Henwood was convicted of conspiracy to manufacture methamphetamine, various charges related to the supply of GBL, possession of precursor materials, and attempting to pervert the course of justice. He appealed against his sentence of six years and four months imprisonment, arguing it was manifestly excessive. The Court of Appeal heard the appeal and delivered its judgment on 31 October 2013.

The legal issues in the appeal were whether the starting point for sentencing was appropriate, whether there was a disparity in the starting points for co-offenders, and whether the uplift for related offending was excessive. The appellant argued that his role in the conspiracy did not warrant a starting point of six years, and that the uplift of two years for related offending was manifestly excessive. The Crown argued that the sentence was appropriate and reflected the seriousness of the offending.

The Court found that the starting point of six years was open to the Judge based on the facts of the case. The Court found that it was open to the Judge to conclude that the appellant supplied the precursor materials found in possession of his co-offender. The Court also found that there was no unjustifiable disparity in the starting points for co-offenders, as each offender's role in the conspiracy was different. Finally, the Court found that the uplift of two years for related offending was not excessive, as the appellant was more actively involved in the offending than his co-offenders.

The Court dismissed the appeal against sentence, finding that the sentence was appropriate and reflected the seriousness of the offending. The Court noted that the appellant's role in the conspiracy was significant, and that the sentence took into account his guilty plea, remorse, and personal factors. The Court also noted that the sentence was consistent with sentences imposed on co-offenders.

No further orders were made by the Court. The appellant's sentence of six years and four months imprisonment was upheld.

Orders