R v Henderson
[2021] NZHC 1624
•2 July 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-3685
[2021] NZHC 1624
THE QUEEN v
PETER REX HENDERSON
Hearing: 2 July 2021 Appearances:
K Whyte for Crown
T Sutcliffe for Defendant
Judgment:
2 July 2021
SENTENCING REMARKS OF LANG J
Solicitors:
Hamilton Legal, Hamilton
R v HENDERSON [2021] NZHC 1624 [2 July 2021]
[1] Mr Henderson, you have pleaded guilty to five representative charges of manufacturing methamphetamine, three charges of being in possession of equipment for use in the manufacture of methamphetamine, three charges of being in possession of material for use in the manufacture of methamphetamine, two charges of being in possession of precursor substances used in the manufacture of methamphetamine, one charge of offering methamphetamine for supply and one charge of being in unlawful possession of a firearm.
[2] The charges relating to the manufacture of, and offering to supply, methamphetamine carry maximum sentences of life imprisonment. The other drug- related charges carry maximum sentences of five years imprisonment. The charge of being in unlawful possession of a firearm carries a maximum sentence of four years imprisonment.
[3] The Crown offers no evidence on the remaining charges that you face, and I now discharge you on those under s 147 of the Criminal Procedure Act 2011.1
Factual background
[4] You are to be sentenced in accordance with an agreed summary of facts. This records that the charges against you were laid following the termination of a police investigation known as Operation Kingsville. This targeted the suspected manufacture and distribution of methamphetamine in the Waikato region between 2017 and 2020.
[5] The investigation revealed that you were responsible for carrying out the manufacture of methamphetamine at no fewer than four separate locations during the period covered by the police investigation. You were not, however, the ringleader or mastermind behind the network that the police uncovered. Several persons were above you in the hierarchy of that network.
[6] You were paid for the first two occasions on which you manufactured methamphetamine for the group. Thereafter you operated in accordance with instructions given by Mr Ray Tyler-Waugh. It seems that you continued to
1 Charges 30, 31, 32, 33, 34 and 46.
manufacture methamphetamine in response to either threats or offers of protection by the network. Mr Tyler-Waugh required you to manage the manufacturing process, thereby enabling him to limit the risk of being apprehended himself. I accept that you felt under considerable pressure from him and the summary records that you were effectively treated as one of the organisation’s tradable assets.
Offending at 54 Roberts Road
[7] Between 1 January and 30 April 2020 you were living at 54 Roberts Road in Tuakau. The police searched the address on 30 April 2020 whilst they were investigating an unrelated incident. During this search the police located a clandestine methamphetamine laboratory. Numerous items of equipment associated with the manufacture of methamphetamine were found at the address, along with 5.6 grams of iodine and approximately 750 grams of sodium hydroxide. The police also found approximately 24 litres of liquid containing methamphetamine, ephedrine and pseudoephedrine.
[8] Telecommunications data subsequently revealed that Mr Tyler-Waugh had organised the repeated manufacture of methamphetamine at this property and that you had acted as what is known as the “cook”.
[9] The quantity of methamphetamine manufactured at the property cannot be determined, although the sum of $15,160 in cash was located during the search. The charge of being in unlawful possession of a firearm was laid after the police located a Winchester .22 rifle belonging to you when they searched the address.
139A Arrowville Road
[10] During April 2020 you were also involved in the manufacture of methamphetamine on at least two occasions at an address situated at 139A Arrowville Road. This was occupied by the parents of Mr Tyler-Waugh’s partner, Ms Gabrielle Liefting-Bull. Ms Liefting-Bull was residing in a caravan at the address at this time. She and Mr Tyler-Waugh were both involved with you in the manufacture of methamphetamine that occurred at this address.
[11] You were also responsible for purchasing new glassware, plastic funnels and 20 kilograms of caustic soda to facilitate the manufacture of methamphetamine at the address. Once again, however, the exact quantity of methamphetamine manufactured at the address cannot be determined.
62 Pokeno Road
[12] After the police searched the Roberts Road address on 30 April 2020 you moved to an address at 62 Pokeno Road. You were present when methamphetamine was manufactured at that address on several occasions. On these occasions, however, you were not directly involved in the manufacturing process. Rather, you assisted by obtaining materials such as ice and caustic acid for those who were responsible for that process.
[13] When the police searched the address on 22 May 2020, they found five litres of hydrochloric acid, 28 kilograms of iodine and numerous items of equipment consistent with having been used in the manufacture of methamphetamine. The summary records that repeated manufactures of methamphetamine took place at this address between 23 April 2019 and 22 May 2020. Again, the quantity of methamphetamine manufactured at the address cannot be determined.
77 Pukemoremore Road
[14] Mr Tyler-Waugh and Ms Liefting-Bull moved to a rural address at 77 Pukemoremore Road near Cambridge in early May 2020. You visited this property frequently and undertook the manufacture of methamphetamine in a garage at the address with the assistance of another member of the group. You again purchased further glassware for use at the address, together with a large stainless steel boiler and
20 kilograms of caustic soda. Once again, the quantity of methamphetamine manufactured at the property cannot be determined.
[15] The charge of offering to supply methamphetamine was laid after intercepted communications revealed that on 23 May 2020 you offered to supply an unspecified quantity of methamphetamine to Ms Liefting-Bull.
62 Pokeno Road (7 July 2020)
[16] After the police searched the Pokeno Road address on 22 May 2020 you obeyed instructions given by Mr Tyler-Waugh that you were to hand yourself in to the police so as to deflect attention from others in the group. You did this on 25 May 2020. After being charged you were granted bail and directed to observe a nightly curfew at the Pokeno Road address.
[17] Two days later you purchased 20 kilograms of caustic soda from a store in Cambridge for the purpose of facilitating further manufactures of methamphetamine. The police conducted a bail check at the Pokeno Road address on 7 July 2020. There they discovered yet another clandestine methamphetamine laboratory you had set up. Numerous precursor substances and materials were found, together with equipment containing liquids associated with the manufacture of methamphetamine.
Starting point
[18] The first stage in the sentencing process is to select a starting point that reflects the overall culpability of your offending. This is not an easy task given the nature and breadth of your offending and the fact that it has not been possible to quantify the amount of methamphetamine that you manufactured.
[19] The principles to be applied in this context were recently the subject of consideration by the Court of Appeal in Zhang v R.2 In that case the Court of Appeal identified bands of offending and recommended starting points for each. Band 4 identified in Zhang applies to the manufacture or supply of between 500 grams and two kilograms of methamphetamine and calls for a starting point of between eight and 16 years imprisonment. Band 5 relates to the manufacture or supply of more than two kilograms of methamphetamine and calls for a starting point of between 10 years and life imprisonment. The Crown submits your offending falls towards the middle of Band 4 or the bottom of Band 5. Your counsel seeks a starting point in Band 4 but at the very bottom of that band.
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[20] The Court of Appeal confirmed in Zhang that the precise role played by an offender is important.3 You were obviously an important part of this particular organisation because you had the skills, experience and knowledge to manufacture methamphetamine on a significant basis. On the other hand, it appears you derived little by way of financial gain from the offending, certainly for later manufactures, and were clearly subject to pressure from Mr Tyler-Waugh.
[21] I consider the greatest assistance in the present case is to be gained from the starting point selected by the Judge who sentenced Mr Tyler-Waugh. Mr Tyler-Waugh was considerably higher up in the network than you, but you were responsible for manufacturing methamphetamine on one more occasion than him. By the time the police searched the Pokeno property on 7 July 2020, Mr Tyler-Waugh was in custody. The Judge who sentenced Mr Tyler-Waugh selected a starting point of 13 years imprisonment on the lead charges of manufacturing, supplying and offering to supply methamphetamine. He then applied an uplift of two years to reflect the remaining charges that Mr Tyler-Waugh faced.4
[22] Ms Liefting-Bull has entered guilty pleas but is yet to be sentenced. The Crown will seek a starting point of around 10 years imprisonment in her case.
[23] The Crown puts your offending at the same level of seriousness as that of Ms Liefting-Bull. It submits that a starting point of 10 years imprisonment appropriately reflects your role on the charges of manufacturing methamphetamine. Your counsel contends a starting point of eight years imprisonment is sufficient to reflect your overall culpability on the manufacturing charges with an uplift of no more than six months on the remaining charges.
[24] If your offending is regarded in the abstract, I accept the Crown’s submission that a starting point of ten years imprisonment would be appropriate to reflect your overall culpability on the charges of manufacturing methamphetamine. You willingly became involved with this network for financial gain and thereby made yourself vulnerable to pressure from those in the upper echelons. Furthermore, you participated
3 At [115].
4 R v Tyler-Waugh [2021] NZHC 868 at [34]-[35].
in several manufactures at different addresses and created significant quantities of methamphetamine for the group.
[25] However, I accept your counsel’s submission that you became involved in this offending at a point where you were vulnerable because you had lost your job and were suffering from depression. You were introduced to the group by Ms Liefting- Bull and you observed the manufacture of methamphetamine on several occasions. The pre-sentence report records that you have an engineering background and offered to machine or engineer any parts the group might want for use in the manufacture of methamphetamine. You also realised you might have an aptitude for manufacturing methamphetamine yourself. For the first two manufactures you were paid the sum of
$2,000. Thereafter, however, Mr Tyler-Waugh placed pressure on you and began threatening you with various consequences if you did not continue to manufacture methamphetamine on behalf of the group. This led to your continued offending under the pressure of threats from him.
[26] I accept that the pressure to which you were subjected, and the fact that you received little by way of financial gain, distinguishes your culpability to some extent from that of Ms Liefting-Bull. She was a willing participant throughout. I therefore consider a starting point of eight years nine months imprisonment is appropriate.
[27] I do not accept your counsel’s submission that no uplift is required to reflect the remaining charges. Your culpability for being in possession of materials, equipment and precursor substances is not fully reflected in the starting point adopted for the manufacturing charges. In part the former charges reflect the fact that you had the items available to enable you and others to manufacture methamphetamine in the future.
[28] The charge of being in possession of a firearm would also ordinarily attract a starting point of 12 to 18 months imprisonment in its own right. However, I do not consider any uplift should be applied to reflect the charge of offering to supply Ms Liefting-Bull with an unspecified quantity of methamphetamine on a single occasion. That charge seems inconsequential in the context of your offending as a whole.
[29]I therefore apply an uplift of 12 months to reflect the remaining charges.
Aggravating factors
[30] One of the most significant features of your offending is the fact that you continued to be involved in the manufacture of methamphetamine immediately after you were arrested and bailed on 25 May 2020 for the offending at Pokeno Road. Just two days later you bought caustic soda and set up another clandestine methamphetamine laboratory at the same address. Offending of this nature whilst on bail is a serious aggravating feature. It would easily justify an uplift of six to 12 months. Rather than take this approach, however, I propose to adopt the Crown’s suggestion that this aggravating factor cancels out any credit you might otherwise have received for relative youth and previous good character.
Mitigating factors
[31] This means that the only mitigating factor for which I am prepared to give you credit is the entry of your guilty pleas. The Crown accepts that, in common with other offenders who entered pleas at a comparable time, you should have the benefit of a reduction in the order of 20 per cent. This reduces your sentence by two years.
Sentence
[32] On the charges of manufacturing methamphetamine you are sentenced to seven years nine months imprisonment. On the charges of being in possession of equipment, material and precursor substances you are sentenced to two years six months imprisonment. On the charge of offering to supply methamphetamine you are convicted and discharged. On the charge of being in possession of a firearm you are sentenced to 10 months imprisonment. All sentences are to be served concurrently. This means you will serve an effective sentence of seven years nine months imprisonment.
[33] I make an order for the destruction of the firearm located at the address of 54 Roberts Road, and an order for the forfeiture of the cash found at that address.
[34]Stand down.
Lang J