The Queen v Henwood - [2008] NZCA 248

IN THE COURT OF APPEAL OF NEW ZEALAND
CA12/2008
[2008] NZCA 248
THE QUEEN
v
LYALL CHARLES HENWOOD
Hearing:25 June 2008

Court:Baragwanath, Rodney Hansen and Harrison JJ
Counsel:M D Downs for Crown

P J Kaye for Respondent

Judgment:18 July 2008 at 10 am

JUDGMENT OF THE COURT

A LEAVE TO APPEAL IS GRANTED.
B The appeal is allowed.
CTHE SENTENCE OF TEN YEARS’ IMPRISONMENT IS QUASHED. A SENTENCE OF TWELVE YEARS’ IMPRISONMENT IS SUBSTITUTED.

D        A MINIMUM PERIOD OF IMPRISONMENT OF SIX YEARS IS IMPOSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
Introduction
[1]       The Solicitor-General applies for leave to appeal against a sentence of ten years’ imprisonment imposed by Wild J on convictions at trial for possession of methamphetamine for the purpose of supply, possession of cannabis for the purpose of sale, unlawful possession of firearms, receiving stolen property and related offences. The Crown contends that the sentence should have been of no less than 12 years’ imprisonment and a minimum term of imprisonment should have been imposed.
[2]       The respondent was convicted on 21 charges following trials before Chisholm J in March 2007 and Wild J in November 2007. The two juries found him guilty:
(a)at the March trial of unlawful possession of a pistol, unlawful possession of a restricted weapon and unlawful possession of a military style semi-automatic firearm; and
(b)at the November trial of two counts of possession of methamphetamine for supply, two of possession of precursor substances, four of possession of equipment and materials, two of possession of cannabis for sale and eight of receiving.

Facts
[3] On 20 September 2005, police executed a search warrant (directed at stolen furniture) at a shed leased by the respondent at Irongate Road, Hastings. In addition to finding a significant quantity of stolen property, police found a disassembled methamphetamine laboratory, precursor substances and equipment for the manufacture of methamphetamine, 11 pounds of cannabis worth $40,000 - $70,000 and equipment for the hydroponic cultivation of that drug.
[4] Police also found 14 firearms (of which 12 had been stolen), comprising:
(a)Eight pistols (three of which were operable and one of which was loaded);
(b)Three restricted weapons (deactivated sub-machine guns); and
(c)Three military-style firearms (all operable).

[5]       The police also found a large amount of ammunition.
[6]       The police also executed a second search warrant in respect of two lockup units rented by the respondent at Orchard Road, Hastings. They found the equivalent of 62 grams of pure methamphetamine (valued at $62,000) inside a dealer’s kit, which was stored in a bag belonging to the respondent, sufficient precursors to manufacture $22,000 of methamphetamine, the equipment and chemicals required to extract methamphetamine from pseudoephedrine, stolen goods, a small quantity of cannabis oil and $6,000 in cash.
[7]       The stolen property in the respondent’s possession was worth approximately $52,000.
[8]       The respondent was acquitted on a count of manufacturing methamphetamine but Mr Kaye accepted that he had moved into the Irongate Road shed for the purposes of setting up a…

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 The Queen v Henwood

Details

AGLC: The Queen v Henwood [2008] NZCA 248
Case: [2008] NZCA 248
Decision Date: 18 July 2008

CaseChat Overview and Summary

In the case of The Queen v Henwood, the respondent, Lyall Charles Henwood, was convicted on 21 charges including possession of methamphetamine for the purpose of supply, possession of cannabis for the purpose of sale, unlawful possession of firearms, and receiving stolen property. The Crown appealed against the sentence of ten years’ imprisonment imposed by Wild J, arguing that it should have been no less than 12 years and that a minimum term of imprisonment should have been imposed. The Court of Appeal agreed with the Crown, finding that the sentence was manifestly inadequate.

The court considered the seriousness of the respondent's offending, including the possession of 14 firearms, some of which were stolen, and the possession of commercial quantities of drugs of more than one class. The court found that the starting point of eight years for the 2005 offending was too low and should have been at least ten years. The court also found that the sentence should have included a minimum term of imprisonment, as the offending was serious and multifaceted, and some of it was committed on bail. The court imposed a minimum period of imprisonment of six years.

The court quashed the sentence of ten years’ imprisonment and substituted a sentence of twelve years’ imprisonment with a minimum period of imprisonment of six years. This was achieved by substituting a term of nine years for the seven-year term imposed on the 2005 charge of possession for supply. The court's decision highlights the importance of adequately reflecting the seriousness of drug and firearms offending in sentencing, and the need for a minimum term of imprisonment in cases of recidivism and serious offending.

Orders