R v Henderson HC Auckland CRI 2009-004-7670

[2010] NZHC 987

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-004-007670

THE QUEEN

v

STEFAN DOUGLAS HENDERSON

Hearing:         25 June 2010

Appearances: P M P van Tiel for Crown

A G Speed for Prisoner

Sentence:       25 June 2010

SENTENCE OF KEANE J

Solicitors:

Crown Solicitor, Auckland

R V HENDERSON HC AK CRI 2009-004-007670  25 June 2010

[1]      Stefan Henderson you appear for sentence, having pleaded on arraignment, for twice manufacturing the class A drug controlled drug methamphetamine, for supply and an offer to supply and for possession of precursor substances and also materials for manufacture. The Crown offers no evidence on three other counts on which you are to be discharged.

[2]      The two manufacturing offences, for which you are for sentence, occurred in close  succession  in  December  2008.  The  evidence  as  to  both,  and  indeed  the evidence  as  to  all  your  offending,  comes  only  from  text  messages  exchanged between you and Pauline Bishop, for whom you were manufacturing; as you say by assisting somebody else and as an intermediary.

[3]      The first manufacture between 9 - 11 December 2008 was accomplished by the latter date as you confirmed in a text to Ms Bishop. Earlier you had asked her to assist with the process of manufacture and she had done so, but there is nothing in the text traffic to say what the quantity was. The Crown's case is that it must have been commercial in scale. At that time Ms Bishop is alleged to have supplied to others 250 grams of methamphetamine. Some at least, the Crown says, must have come from you.

[4]      The second manufacture, on 19 - 22 December, rests on more explicit traffic. You agreed to supply to Ms Bishop one and a half ounces (42 grams) of methamphetamine. On the statement of facts for sentence, which you accept, you made that supply on 22 December, thus committing those two allied offences. On arraignment, I was told, you contested that order of manufacture and supply. You said that the manufacture yielded 36 grams and you supplied Ms Bishop 16 grams. You do not now pursue that to the point of a dispute of facts. That is because the Crown treats those two offences as related and indistinguishable.

[5]    On  23  December  2008  you  possessed  a  precursor  substance, pseudoephedrine, for the purpose of manufacture. That also emerged in an exchange of texts with Ms Bishop. You asked her to supply you with a 'set' of Contact NT and, according to the facts for sentence, she did so. A 'set', the facts say, equates to 223 grams of pseudoephedrine, and the usual price is $11,000.

[6]      On 1 January 2009 you made an offer to supply methamphetamine. You received a text from an unknown person, who asked you if you could supply an ounce, 28 grams, of methamphetamine. You said that you could at a cost of $14,000. There is no evidence as to whether any such supply then took place.

[7]      Finally,  on  1  April  2009,  when  the  police  concluded  their  inquiry  and executed a search warrant at your home and at the homes of others, you were found in possession of a chemical for manufacture, hypophosphorous acid.

Pre-sentence report

[8]      You are, your pre-sentence report says, aged 35. You have a partner. The report says you have two young children. In fact you have three. Your children are aged three years, two years and seven months. At the time of your offending you were, your report says, on the face of it self employed, buying computer parts on Trade Me and repairing computers and selling them.

[9]      At the date of your arrest, 1 April 2009, however, you were addicted to methamphetamine and you were offending; and all your offences for sentence, you explained to your assessor, were attributable to your addiction. You were not in it for the money. Any profit, you said, went to your co-offender, Ms Bishop, whom you had to pay back for contacts she had given you.

[10]     In the 14 months since your arrest, during which you were on bail until I revoked it on 17 March 2010, you have not, your report says, consumed methamphetamine. Nor do you have any harmful pattern of alcohol use or problem gambling. (Though in this your assessor relies on what you yourself have said, as I have confirmed with your counsel this morning.)

[11]     You have, your report says, expressed remorse. With time, you told your assessor, you had come to realise the effect of your offending not merely on you but on your family and the community. On release from prison, and you do not seek a sentence within the community, you hope to gain employment and to remain drug

free. You are assessed as at low to medium risk of re-offending. However, that risk is likely to increase unless you face up to any lingering addiction you have.

[12]     Pertinent to whether that risk continues, I think is this. You have, as your report says, a lengthy list of previous convictions and these include twice possessing methamphetamine in 2005 and in early 2006, and breaches of Court orders and sentences. All your most recent convictions, between 2007 - 2009, are in that latter category. You have breached community work and supervision.

[13]     Your rehabilitative needs, as is evident from the recommendation with which your report concludes, will have to be met within a sentence of imprisonment. Such a sentence, as your report says, is inevitable for offending of this order of seriousness.

Two letters

[14]     I have two letters, the first from you, that I have received this morning. In your letter you express remorse. You explain that you have been an addict for the past five years. You accept responsibility for your offending. You acknowledge that until recently you had not understood quite how serious your offending was in its impact on your family and on the community.

[15]     You  say that  your  life  took  an  unfortunate  course  relatively early.  Your friends were not helpful to you and you began to offend and then, eventually, you became a user of methamphetamine and an addict. That effectively has governed your life, you say, in the last five years.

[16]     You say that you have begun to address your problems and you will continue to do so, accepting any course of treatment or counselling that is proposed for you, whether within your sentence or within the community.

[17]     I have also a letter, dated 16 March 2010, the day before you were arraigned, in which you are described by Waitemata Health as having attended one module of a Getting Started group at CADs Central. That indicates that you were then at least

willing to make a start. But, as you will understand, a great deal more will be required if you are to remain drug and offence free.

Purposes and principles

[18]     In sentencing you for these offences I must hold you accountable for the harm you have done, promote in you a sense of responsibility, denounce your conduct, deter you and others from acting in this way, protect the community and provide for the interests of any conceivable victim. This was far from victimless offending. I must also, so far as it is compatible, assist you in your rehabilitation and reintegration.

[19]     I must have regard to the following sentencing principles: the gravity of your offending, the need to be consistent in sentence with other cases, the need to impose a sentence near to the maximum, should that be warranted. Equally, I must take into account the contrasting principles: the need to adopt the least restrictive outcome appropriate, the need to take account of anything that would make any otherwise proper sentence disproportionately severe, and the need to recognise  you in the context of your family.

[20]     Where  drug offending  is  as  serious  as  yours  is,  I have to  say,  personal circumstances and the more positive purposes and principles of sentencing normally have little part to play.  Denunciation and deterrence are what is principally called for. That said, the fact of your addiction is material and I will not ignore it in the sentence I impose.

Submissions

[21]     The Crown invites me to take as your lead offence the second manufacturing offence between 19 - 22 December 2008, associated with the 22 December supply offence, on the basis that the scale is quantifiable. You manufactured one and a half ounces (42 grams) of methamphetamine. An offence of that order, the Crown says,

attracts a starting point within band two R v Fatu,[1] which sets for manufacturing up to 250 grams a range of four - 11 years imprisonment. Your counsel does not dissent.

[1] R v Fatu [2006] 2 NZLR 72.

[22]     The Crown seeks an uplift from that starting point to take account of the totality of your offending, the earlier count of manufacture in an unknown quantity, the contemporary supply with this manufacture, the offer to supply a further ounce of methamphetamine and the two possession offences. That uplift, the Crown says, should take the starting point to seven and a half - eight years imprisonment.

[23]     The  Crown  seeks  also  a  distinct  uplift,  perhaps  to  consolidate  an  upper starting point of eight years, of three - six months to take account of your previous convictions since 1982, which include breaches of community based sentences, possession of methamphetamine twice in 2005 - 2006, and unlawful possession of a firearm in 2005.

[24]     The uplifts proposed by the Crown, your counsel submits, effectively double the starting point for your lead offence, and there are a number of factors why that would be wrong.

[25]     First, he submits, your lead offence was an expression, as is all your other offending, of a deep seated addiction, to which you were subject at the time you offended. Related to that, he submits, is the fact that you took no gain from this offending. You offended because you were captured by and responding to your addiction.

[26]     Secondly, he submits, although you are culpable as a manufacturer, you were not in fact the cook. You were somebody who assisted the cook and you were an intermediary. To that extent you are not perhaps as culpable as you might be for those offences.

[27]     Thirdly, he submits, you were to some extent acting under duress. Ms Bishop still stands charged with threatening to cause you grievous bodily harm. Ms Bishop, who is for sentence next week, does not admit that offence and the Crown will not

press it. But the reality that she sent the threatening text to you is still, your counsel submits, indicative of reality.

[28]     Finally, your counsel points to the fact that, though the quantity manufactured in the second manufacturing offence, which is your lead offence, may be accepted as definite, the scale of your other offences cannot be established with such certainty. To ascribe to them the significance the Crown calls for would be disproportionate. At most, he submits, the starting point might lie in the range five - six years.

[29]     The Crown accepts that you are entitled to a discount for your plea on 30

March 2010 on the fourth call in this Court. You intimated through your counsel a willingness to plead when the case was first called on 28 October 2009. That, however, the Crown says, is not a plea at the earliest opportunity and, by contrast to the discount given to  your co-offender Mr Hammerton, which was 25 per cent, contends for a 20 per cent reduction.

[30]     You did not, your counsel accepts, enter your plea at the earliest opportunity. But, as the Crown accepts, he says, you did intimate at the first call-over in this Court what your plea was to be and that call-over followed very shortly after depositions, as the Crown accepts. A 25 per cent reduction, he submits, would not be unreasonable.

[31]     Your addiction may be presently in abeyance, your counsel submits, but your need for rehabilitation ought to be recognised in the sentence imposed. I do not see amongst the programs outlined in your pre-sentence report, however, any administered within the prison. All  I can do is identify your obvious  need and recommend that it be catered for.

Conclusions

[32]     Your lead offence for sentence is, I accept, the second manufacture and, I agree, it lies within band two R v Fatu and warrants a starting point for sentence for that offence taken alone of five years.

[33]     To take account of the totality of your offending, which I consider has been fairly characterised by your counsel as expressions of your addiction within a relatively confined period of time, I intend, although I well understand why the Crown has proposed a greater uplift, to take an uplift of one year. That increases the starting point to six years. I do not intend to increase it for your previous convictions. I do not regard them as sufficiently aggravating.

[34]     As to your plea, you intimated what that was to be at the first call-over soon after depositions. You are, I consider, entitled, therefore, or rather I am prepared to grant you, a 25 per cent discount for that reason. That is a discount of 18 months.

[35]     You will be sentenced to four and a half years imprisonment for the first manufacture and concurrently to the same sentence for the contemporary supply. You will be sentenced concurrently to imprisonment for four years for the earlier manufacture, to two years for the offer to supply and to 18 months for each of the two possession offences.

[36]     Your effective sentence remains four and a half years imprisonment and you are discharged on count one, the representative supply count, and on counts 19 and

27, and the two further conspiracies alleged in December 2008.

[37]     In sentencing you as I have, Mr Henderson, I want to emphasise to you that the Crown's submission was proper and the sentence I have imposed on you is relatively lenient. My intent is to assist you. To encourage you to consolidate the advance you have made since arrest in coming to grips with your addiction and thus with your potential for re-offending. In this I have been very conscious of the young age of your children.

[38]     Everything is up to you now and, if you take this opportunity, well and good. If you do not, you cannot expect in the future a sentence of this order.

P.J. Keane J