R v Henderson

[2013] NZHC 3093

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-068-000050 [2013] NZHC 3093

THE QUEEN

v

RAYMOND JOHNATHAN HENDERSON

Date:  21 November 2013

Counsel:                  JN Foster for Crown

KL Tustin for Prisoner

Sentence:                 21 November 2013

NOTES ON SENTENCING OF RODNEY HANSEN J

Solicitors:           Almao Douch, Hamilton

R v HENDERSON [2013] NZHC 3093 [21 November 2013]

Introduction

[1]      Mr Henderson, you appear for sentence on multiple charges which are set out in the schedule to the record of my sentencing remarks.  You pleaded guilty to all charges following a sentencing indication I gave on 19 September 2013.   At the conclusion of my decision, I expressed the view that you should receive a sentence of ten years imprisonment with a minimum period of imprisonment of five years.

[2]      That sentencing indication has been accepted in its entirety.  There have been no developments since the sentencing indication was given, that call for any review of the approach I took.   A pre-sentence report has been prepared and I have had supplementary submissions  from  Ms Tustin.    It  is  not  suggested,  however,  that anything has emerged to affect the way in which sentence should be approached.

The offending

[3]      The offending took place on three separate occasions - 30 November 2012,

17 December 2012 and 10 February 2013.  I will set out as concisely as I can what happened on each of those three days.

30 November 2012

[4]      You had been disqualified from driving on 13 June 2012.  On 30 November you consumed alcohol at your home.  Your mother attempted to prevent you from leaving the property in her vehicle because you were disqualified from driving and because of your intoxicated state.  You pushed her away, threw her against a fence and punched her in the head.  In the course of the altercation you also broke three windows in the house, damaged a door and cut up a family tent.

19 December 2012

[5]      While on bail for the earlier offending, on 17 December 2012, you were drinking alcohol with associates in Raurimu.  You went to the premises of a local business and took a truck for the purpose of driving to Taumarunui.  You lost control and crashed the vehicle. A blood test showed that you had 136 milligrams of alcohol per 100 millilitres of blood.

10 February 2013

[6]      Following the December offending, you were again admitted to bail.   The conditions included that you not have contact with your mother and that you reside with your grandparents and observe a curfew between the hours of 9.00 p.m. and

6.00 a.m.

[7]      In the early hours of 10 February 2013, you left the house using a ladder you had left outside your bedroom and after turning off all the cellphones in the house and unplugging the telephone landline.  You took clothing and a replica AK47 gun. You walked to a nearby address at Raurimu and took a Yamaha quad motorcycle parked there.

[8]      A short time later you abandoned the vehicle by the roadside and entered another property in Raurimu from which you took a Toyota van.  You drove it to the house occupied by your mother and stepfather.  You entered by smashing a window. You left taking four rifles, a shotgun, a quantity of ammunition and bolt cutters. While at the property you made Molotov cocktails which you also took with you when you left. You killed three sheep in a paddock near the house and, while driving towards Taumarunui, you stopped by the side of the road and shot a calf.

[9]      You then went to an unoccupied holiday home.  You entered by smashing a pane of glass, inflicted further damage inside the house and left taking a television set, a DVD player and a Sky television unit.

[10]     After leaving the property, you came upon a Toyota Prado motor vehicle. You approached the owner carrying a rifle and a knife.  You pointed the rifle directly at the owner and demanded the keys.  After transferring the stolen property into the vehicle, you drove away in the direction of Taumarunui.

[11]     At Manunui, you crashed the vehicle.  You went to a nearby house and asked the occupant, 69-year-old Colin Te Wano, if he knew the whereabouts of a car wrecker.  Mr Te Wano offered to take you in his own vehicle.  On the way, you asked him to stop, held a knife to his throat and told him you would take his vehicle. Mr Te Wano was able to drive away after tricking you into getting out of the vehicle.

[12]     You then walked to another nearby address where you asked 70-year-old Roderick Dickinson for assistance to find a wrecker.  Mr Dickinson received a phone call to warn him of your likely approach.  You overheard that.  You held a knife to his neck, threatened to slit his throat and told him to hang up the phone.  You then left the property driving Mr Dickinson’s Honda Accord.

[13]     In the neighbourhood you stopped beside another vehicle and pointed a rifle at its occupants.  Driving past Mr Dickinson’s address, you saw a group of residents which included Mr Dickinson and Mr Te Wano, one of whom threw a rock at the stolen Honda you were driving. You confronted the group with a rifle, threatening to “blow their heads off”.  When members of the group took shelter, you discharged the firearm in their general direction before discharging the rifle for a second time in the direction of another neighbour.

[14]     You then drove to another address in Manunui and pounded on the front door with the butt of your rifle.   As one of the occupants approached the door, you discharged the rifle in his direction.  The round smashed through the glass pane and just missed the occupant who felt it “whizz” past his face.

[15]     The final major incident occurred at a service station in Taumarunui where you refused to pay for cigarettes.  When pursued by the petrol station attendant, you picked up and pointed a .22 rifle at him.  The attendant was able to take the firearm off you.   You then produced a knife and lashed out.   Your intended victim only narrowly escaped being stabbed. You then walked off.

[16]     After  an Armed  Offenders  callout  which  effectively involved  the  central business district of Taumarunui being placed in lockdown, and further attempts you made to interfere with vehicles and steal wallets and money, you were apprehended. You failed an evidential breath test.

Victims

[17]     I have read a number of victim impact reports that show that some of the victims, particularly those who were threatened with serious life-threatening injuries, were profoundly traumatised by what happened.  Your immediate family are among

those who continue to suffer emotionally.  They have said that they feel unable to offer their support to you, although I record and acknowledge that your grandmother is present in Court to support you today.  Some of the victims have chosen not to make statements, preferring to put the experience behind them.

Personal background

[18]     You were aged 18 years at the time of the first two incidents.  You had turned

19 by the time the more serious offending took place in February. You have previous convictions for driving a motor vehicle at a dangerous speed, failing to stop, driving while your licence was suspended or revoked, but there was nothing in your previous record to indicate a propensity for violent offending.

[19]     You  have,  however,  a  history  of  mental  illness.    You  first  underwent psychiatric evaluation in 2005.   Since December 2012, you have undergone assessment and treatment which are detailed in the reports prepared by Dr Majeed, a consultant forensic psychiatrist, for the purpose of determining whether you had a mental disorder and were fit to plead.  Dr Majeed concluded that you were suffering from moderate to severe depression at the time of your offending, complicated by a significant degree of grief reaction to the death of your four-month-old son in a car accident in October 2012.   You are said now to suffer from depression occurring against a significant background of an abnormal personality development.  You are assessed  as  suffering  from  borderline  and  antisocial  personality  traits  with  a tendency to display labile emotions and to act in an impulsive manner.

[20]     Family members have questioned whether you in fact had a relationship with a woman and fathered a child.  The Crown has been unable to obtain confirmation of the birth of the child or of an accident leading to the death of a baby at the relevant time.    For  the  purpose  of  the  sentencing  indication  hearing,  Ms  Tustin  made enquiries.  She informed me that ultimately she was reliant on your advice which is to the effect that the death indeed occurred.  She pointed out that you mentioned the death in December 2012 when you first presented for assessment, suggesting that it has not been raised as an attempt to gain extra credit for sentencing purposes.

[21]     Whatever the facts may be, it is clear, and I accept, that you genuinely believe the tragedy occurred.   Whether or not the depressive episode that appears to have begun at the end of 2012 was triggered by the death of your child, in the end, is of little consequence for sentencing purposes.

[22]     Your immediate family has a history of mental illness.  Your father suffered from bipolar affective disorder and was receiving anti-psychotic medication when he died prematurely.  Your paternal grandmother similarly suffers from bipolar affective disorder and is currently receiving anti-manic treatment.  Your mental health issues appear to be inherited and not the result of drug abuse or otherwise arising from your own actions.  That said, you have acknowledged abuse of alcohol since you were aged ten and other drugs since the age of 14.  You accept that you are an alcoholic. Your use of alcohol and drugs escalated in late 2012 and undoubtedly contributed to the offending.

[23]     The probation officer who provided the pre-sentence report was concerned by your tendency to blame your actions on substance abuse and your disordered emotional state.  However, as Ms Tustin has said in her supplementary submissions, the probation officer appears not to have had access to the psychiatric reports which show that you were significantly impaired by mental illness at the time of your offending and that is the basis on which I gave the sentencing indication and will be sentencing you today.

[24]     As a result of continuing treatment since you first presented for assessment and during your time in custody, Dr Majeed reports that you have significantly recovered from the depressive episode that you suffered towards the end of last year and the beginning of this year.  You no longer have a mental disorder or suffer from mental impairment.  You are responding satisfactorily to anti-depressant medication and you do not need psychiatric treatment in hospital.

Starting point

[25]     In submissions made at the time I gave the sentencing indication, there was a broad consensus between counsel as to the appropriate starting point for sentencing purposes.  Ms Foster, for the Crown, submitted that having regard to the totality of

the  offending,  a  starting  point  of  17  –  18  years  imprisonment  was  warranted. Ms Tustin argued for a starting point in the range of 15 – 18 years.  Her position was that, after giving appropriate credit for your youth, your mental health issues and your guilty pleas, a final sentence of between 10 and 12 years would be appropriate.

[26]     As both counsel agreed, this is a case where cumulative sentences may be required but which ultimately requires an assessment of a starting point which meets the totality of the offending.  The starting points appropriate for individual offences provide stepping stones but they do not lead directly to the destination.

[27]     Ms Foster suggested that the lead offence should be that of attempted murder and, given that only by evasive action did the intended victim avoid serious injury or even  death,  she  may  well  be  right.    It  is  arguable  though  that  the  charge  of aggravated robbery attracts a higher starting point.  In terms of R v Mako1 a starting point of eight years would be warranted for the robbery at the service station alone. Two weapons were involved.  The firearm was loaded and you attempted to inflict

actual violence with the knife.   The service station attendant was fortunate not to receive serious wounds.

[28]     The selection of the lead offence, however, in the end is somewhat academic. The key issue, as I have said, is the sentence appropriate to the totality of the offending.   For this purpose I have relied on sentencing decisions involving comparable sprees of criminal offending.  One such case is R v McDonald2 referred to me by the Crown in which a starting point of 18 years before personal aggravating factors, was adopted.  Another, also a sentence of Harrison J, is R v Shedden3 where the offender committed a series of aggravated burglaries, initially using a fake gun but, on the last occasion, using a loaded gun and screwdriver.  In that case a starting point of 16 years, based on Court of Appeal authority, was said to require an uplift of four to six years to take account of the actual use of the weapons, serious injuries

inflicted on one of the victims and serious previous offending.

1      R v Mako [2000] 2 NZLR 170 (CA).

2      R v McDonald HC Auckland CRI-2009-004-16897, 22 September 2009.

3      R v Shedden HC Auckland T024003, 12 December 2003.

[29]     Both  cases  involved  aggravating  factors  not  present  in  your  case.    In McDonald4  there was armed entry into a series of properties culminating in the discharge of a firearm at enforcement officers on six separate occasions - a serious aggravating factor.   The offending in Shedden5  led to serious injury to one of the victims.  Mercifully, your offending did not lead to any significant physical injury.

[30]     Having regard to these cases, to the sentencing decisions referred to in those cases and my own assessment of the offending, I came to the view expressed in my sentencing indication that a starting point in your case of 17 years imprisonment is appropriate.

Mitigating factors

[31]     There are no aggravating factors of a personal nature.  I disregard the fact that the later offending took place while you were on bail.   The escalating pattern of offending  was  clearly  attributable  to  your  worsening  mental  illness  and  your attempts to self-medicate, rather than to a deliberate flouting of bail conditions.

[32]     I must then consider the allowance that should be made for your relative youth at the time of the offending and your mental illness.

[33]     The Crown accepts that an allowance should be made for mental illness.  It is recognised as relevant to sentencing for the reasons conveniently summarised in E(CA689/2010) v R.6    Discounts of between 12 and 30 per cent have been seen as appropriate by the Court of Appeal.   Having regard to the cases reviewed in E, I consider a discount of 20 per cent appropriately reflects your impaired mental functioning at the time of the offending.

[34]     I consider that some modest additional allowance should also be made for your youth on the basis set out in Churchward v R.7   It has been said that the scope for making an  allowance for  youth is  greatly circumscribed in cases of serious

offending but it is not to be excluded altogether on that account.  The combination of

4      R v McDonald, above n 2.

5      R v Shedden, above n 3.

6      E(CA689/2010) v R (2011) 25 CRNZ 411 (CA) at [70].

7      Churchward v R [2011] NZCA 531, (2011) 24 CRNZ 446.

your youth, your fragile mental state and your grief reaction to the death (or the believed death) of your infant child, in my view, warrants an aggregate discount of

25 per cent.   That would reduce the sentence from 17 years to 12 years and 9 months.

[35]     You are entitled to a discount for your guilty pleas.  There are good reasons for the delay in entering those pleas.  The reality is that a plea could not have been entered until questions about your mental state had been resolved. The Crown would have been content for a discount at the maximum of 25 per cent to be allowed.  I have taken the view that would be too generous.  The prosecution case against you is

overwhelming.  The Supreme Court in R v Hessell8 made it clear that the strength of

the case is a factor which would normally militate against allowing the maximum discount.  I propose allowing a discount of 20 per cent.  That will produce a sentence of a little over 10 years which I would round down to 10 years.   That may be regarded as following from a slightly more generous discount of 20 per cent for the guilty plea.

Minimum period of imprisonment

[36]     Ms Foster argued that there should be a minimum period of imprisonment and that submission was not resisted by Ms Tustin.  Having regard to the prolonged and serious nature of the offending, the use of firearms, the extent of the suffering inflicted on the victims – most of them strangers to you – and, importantly, to recognise  the  importance  of  the  protection  of  the  community,  I  accept  that  a minimum period of imprisonment is warranted.  I consider that a minimum period of

50 per cent or five years is appropriate.

Disqualification

[37]     There is agreement that I must sentence you to a period of disqualification in relation to the driving offences.  I propose to do so on the basis that the period of disqualification take effect on your release from prison.  On that basis, the period of

disqualification I regard as appropriate to the offending is 18 months.

8      R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.

Sentence

[38]     For the reasons that I have set out, Mr Henderson, the sentences which I

impose are as follows:

[39]     On each of the charges of aggravated robbery, assault with intent to rob, aggravated burglary and attempted murder, you are sentenced to 10 years imprisonment.

[40]     On the charges of burglary and commission of a crime with a firearm, you are sentenced to six years imprisonment.

[41]     On each of the charges of unlawfully taking a motor vehicle, intentional damage and threatening to do grievous bodily harm, you are sentenced to three years imprisonment.

[42]     On the two counts of assault with a weapon and the charges of unlawful possession of a firearm and of explosives, you are sentenced to two years imprisonment.

[43]   On the charge of common assault, you are sentenced to three months imprisonment.

[44]     On each of the charges of wilful damage, driving while disqualified and driving with excess breath alcohol, you are sentenced to one month’s imprisonment and on the charges of driving with excess blood alcohol and driving while disqualified, you are disqualified from holding or obtaining a driver’s licence for a period of 18 months, the period of disqualification to take effect on your release from prison.

[45]     All sentences of imprisonment are to be served concurrently which means that you would serve a sentence of ten years.  You must serve a minimum period of imprisonment of five years.

[46]     Mr Henderson, it is obviously essential that your mental health is subject to ongoing monitoring by the correctional authorities and that you continue to receive any required psychiatric and psychological treatment.   I strongly recommend also that during your time in custody, you undertake such treatment and counselling as is made available to you for alcohol and drug dependency.   That completes my sentencing remarks, Mr Henderson. You may stand down.