R v Henry - [2012] NZHC 3264

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-043-1905 [2012] NZHC 3264

THE QUEEN

v

IZAAC HEMI PITIROI HENRY

Charges: Offering to supply cannabis; Possession of cannabis for supply; Contravening protection order (x9)

Plea: Guilty

Counsel: NL Elliott for Crown
SW Hughes QC for Prisoner

Sentenced: 4 December 2012
Cannabis charges – 16 months’ imprisonment on each (concurrent) Protection order – 8 months’ imprisonment on each (concurrent) (16 months and 8 months cumulative – total sentence 24 months)
SENTENCING NOTES OF BREWER J

SOLICITORS/COUNSEL
C&M Legal (New Plymouth) for Crown
Susan Hughes QC (New Plymouth) for Prisoner

R V HENRY HC NWP CRI-2012-043-1905 [4 December 2012]

Introduction

[1] Mr Henry, you appear for sentence today having pleaded guilty to one charge of offering to supply cannabis and one charge of possession of cannabis for the purposes of supply. Those are offences under the Misuse of Drugs Act 1975 and each carries a maximum penalty of eight years’ imprisonment. You have also pleaded guilty to nine charges of breaching a protection order under the Domestic Violence Act 1995. Each of those offences is punishable by up to two years’ imprisonment.

[2] I shall summarise the factual background briefly.

Facts

Drug offending

[3] In March 2012, the Police started to make enquiries relating to possible drug related activities involving you. They obtained text message data from your cellphone over the following months. That data indicated that you were involved in the dealing of cannabis.

[4] Between 13 March 2012 and 20 March 2012, you were responsible for sourcing, possessing, offering and supplying cannabis in a number of drug dealing transactions. The Police have provided a schedule of text data which details the transactions you were involved in during that period.

[5] Each of the drugs charges has been laid as being representative of your offending over that period.

Protection order offending

[6] On 13 May 2011, the New Plymouth Family Court issued a protection order for the victim (who is named in the order). She is your ex-partner. The charges you are being sentenced for relate to that protection order.

[7] The charges can be broken into three groups. The first group[1] relates to a series of text messages sent to the victim which were of a threatening tone and have been said to amount to psychological abuse. The victim’s response to these texts was to the effect that the relationship you had with her was over.

[1] CRN 1841, 1842 and 1843.

[8] The second group consists of two charges[2] involving telephone calls to the victim. On 5 May 2012, you called the victim and she told you the relationship was over. You then became threatening and intimidating. On 9 May 2012, you again called her and she told you to leave her alone. In response, you said you were going to “end it”, which frightened the victim and she subsequently contacted the Police.

[2] CRN 1697 and 1698.

[9] When located by Police on 24 May 2012…

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 R v Henry

Details

AGLC: R v Henry [2012] NZHC 3264
Case: [2012] NZHC 3264
Decision Date: 4 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Izaac Hemi Pitiroi Henry was convicted on multiple charges of drug offences and breaching a protection order. The drug charges involved offering to supply and possessing cannabis with intent to supply, while the protection order charges were for multiple instances of communication with an ex-partner in violation of a court-issued protection order. The court accepted Mr Henry's guilty pleas on all charges. The legal issues before the court were to determine the appropriate starting points and adjustments for each set of charges, applying the purposes and principles of sentencing as mandated by the Sentencing Act 2002, and to ensure the final sentence was proportionate to the totality of the offending.

The court assessed the drug offences as falling into category 2 of the Court of Appeal's guidelines, indicating a small-scale commercial operation. The starting point was set at two years and three months' imprisonment, with adjustments for personal circumstances and a discount for the guilty plea. For the protection order breaches, the court considered the persistence and emotional distress caused by Mr Henry's actions, setting a starting point of 10 months' imprisonment, which was then uplifted due to previous convictions. A discount for the guilty plea was applied to both sets of charges. After evaluating the totality of the offending and the submissions from both defence and prosecution, the court determined that a cumulative sentence of 24 months' imprisonment was appropriate.

The final orders of the court were for Mr Henry to serve 16 months' imprisonment for each of the drug charges, to be served concurrently, and eight months' imprisonment for each of the protection order charges, also to be served concurrently, resulting in an effective total sentence of 24 months' imprisonment.

Orders