HENDERSON v POLICE [2021] NZHC 78

HENDERSON v POLICE [2021] NZHC 78 [3 February 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI 2020-454-24[2021] NZHC 78BETWEEN STEPHEN HENDERSONAppellantAND NEW ZEALAND POLICERespondentHearing: 2 February 2021 via AVLCounsel: O S Winter for AppellantJ J Harvey and T Bagnall for RespondentJudgment: 3 February 2021JUDGMENT OF MALLON JIntroduction[1] Mr Henderson pleaded guilty to charges of driving while suspended (x2),dangerous driving, unlawful possession of a pistol, unlawfully carrying ammunition,possession of methamphetamine for supply and possession of utensils.1 He wassentenced to three years and six months' imprisonment and disqualified from driving.2He appeals this sentence. He contends this sentence was manifestly excessive becausethe Judge adopted too high a starting point on the methamphetamine charge and failedto address totality.1 Land Transport Act 1998, ss 32(1)(c) and 35(1)(b) (maximum penalties three months'imprisonment or $4,500 fine); Arms Act 1983, ss 50(1)(a) and 51 (maximum penalties three years'imprisonment or $4,000 fine); and Misuse of Drugs Act 1975, ss 6(1)(f) and (2) (maximum penaltylife imprisonment) and 13(1)(a) and (3) (maximum penalty one year's imprisonment or $500 fine).2 Police v Henderson [2020] NZDC 26617.Background[2] The methamphetamine, firearm and ammunition charges arose whenMr Henderson was stopped at a routine traffic stop on 25 March 2020 during theCOVID-19 Level 4 lockdown. In his possession were a sawn-off .410 pistol, fourrounds of ammunition, four grams of methamphetamine, two glass pipes used forconsuming methamphetamine, a number of small snaplock bags, scales, a tick bookand two rolled-up banknotes. Mr Henderson also had $864 in cash in his wallet.[3] The dangerous driving charge arose from an incident on 23 January 2020.Mr Henderson drove on the wrong side of the road as he approached a tight right-handuphill bend that had a 25 km/h speed advisory. Once over the summit of the road,Mr Henderson entered an area of roadworks with a 30 km/h speed restriction. Heovertook another vehicle at an estimated speed of 70-80 km/h. After this, he crossedthe centre line on several occasions. This caused one vehicle, driving in the oppositedirection, to pull over to avoid a collision. It also caused a collision with anothervehicle heading in the opposite direction, which had three occupants. The driver ofthat other vehicle was injured with a bruised hip and back strain, and both vehicleswere extensively damaged.[4] The driving while suspended occurred on 17 October 2019 and 6 December2019.Personal circumstances[5] Mr Henderson is 39-years-old. He has 13 previous convictions for offendingat the lower end of seriousness. They include driving offences of which the mostrelevant are convictions for dangerous driving (in 2015 and 2001) and for carelessdriving (in 2003). He has no previous convictions for methamphetamine, firearms orammunition offending.[6] The pre-sentence report advised that Mr Henderson and his partner were bothusers of methamphetamine. Mr Henderson said he possessed firearms to keep himselfsafe because he had been subject to several home invasions from criminal gangsbecause of his drug dealing. He denied any financial gain from his dealing. He saidhe regretted getting involved with methamphetamine because he has seen the harmfuleffects of addiction on others. He would like to complete alcohol and drug counsellingwith his partner and hoped for a future with employment, family and a drug-free home.[7] Mr Henderson's counsel advised that Mr Henderson has engaged with hissupport officer in prison and, while it was fair to say that his motivation to address hissubstance abuse has ebbed and flowed, overall he was working towards that aim.Applications to Odyssey House or a local residential programme remain in progressand his instructions to counsel were that if a such programme is available to him hewill take it. His motivation is driven by his children who are reluctant to have contactuntil he sorts himself out.Sentence indication[8] Following completion of disclosure, Mr Henderson sought a sentenceindication on all the charges. A sentence indication was given by the District Court(Judge S B Edwards) on 27 August 2020.[9] The sentence indication was for an overall starting point of three years andthree months' imprisonment for the methamphetamine, firearm and ammunitionoffending.[10] The Judge further indicated that if these matters were dealt with together withthe driving offences "there may be an uplift of a month or two, no more, but that itmight be that it could be dealt with by way of a lengthy period of disqualification andan emotional harm reparation payment to the other driver".[11] Initially, Mr Henderson was to consider his position as a result of the sentenceindication by 3 September 2020. However, the sentence indication process wasadjourned twice while Mr Henderson pursued potential drug treatment options,including at Odyssey House in Auckland. Running alongside that was an issue aboutthe weight of the methamphetamine that Mr Henderson was alleged to have possessed.It transpired that the original allegation of six grams included the weight of the bag inwhich the methamphetamine was contained. Without that bag, the methamphetamineweighed four grams. Once that was resolved, Mr Henderson pleaded guilty to thecharges and was remanded for sentencing on 18 December 2020.District Court sentencing[12] The District Court Judge (Judge B Northwood) noted that the sentenceindication had lapsed but considered it was nevertheless helpful. The Judge noted thatthe sentence indication related to a weight of methamphetamine of six grams whereasthat was now reduced to four grams. The Judge considered that the two and a halfyear starting point indicated by Judge Edwards seemed appropriate in light of theweight of the drugs involved and the culpability of the offending. In reaching thatview, he noted that the quantity of the drugs was towards the upper end of the band 1range in Zhang.3 He considered that the culpability of the offending was low. Heregarded Mr Henderson as running a "very basic one man band" operation in whichsomebody sold larger units to Mr Henderson, who in turn supplied smaller amounts toothers.4[13] Judge Northwood agreed with Judge Edwards' indication of a 12 month upliftfor the firearm and ammunition offending. Judge Northwood referred to the Court ofAppeal's decision in Joyce v R in which a range of 12-18 months uplift in this kind ofcase was said to be typical.5 Although there was no evidence that the ammunition wassuitable and for use in the pistol, the Judge considered the only conclusion was thatthe ammunition was for the same reason as the firearm. As to that, Mr Henderson hadacknowledged it was to defend himself from "taxing" by criminal gangs.[14] The starting point for the methamphetamine, firearm and ammunitionoffending was therefore set at three and a half years' imprisonment. The Judge upliftedthat starting point by a further two months' imprisonment for the dangerous driving,describing it as "a bad case of its kind".63 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 348 at [125].4 At [23]-[24].5 Joyce v R [2020] NZCA 124 at [24].6 Police v Henderson, above n 2, at [29].[15] As to personal factors, the Judge considered that no increase from that startingpoint was necessary because of Mr Henderson's criminal history. He allowed a 20 percent discount (nine months) for the appellant's guilty plea and a further 11 per centdiscount (five months) for the appellant's positive engagement towards hisrehabilitation.AppealStarting point[16] The first issue is whether, as Mr Henderson submits, the sentencing Judge erredby failing to give proper recognition to the fact that the offending now fell within band1 of Zhang.7 I consider he did not.[17] The Judge expressly noted that the weight of four grams sat "towards the topof band 1".8 He correctly noted that this overlapped with the lower end of band 2. Hewent on to say that a "weight based approach" would set the starting point at three andhalf to four years' imprisonment.9 That too was a correct statement given that the topof band 1, which applies for quantities of up to five grams, is four years' imprisonment.The Judge correctly went on to consider Mr Henderson's role. It was his assessmentof that role, combined with the quantity of drugs involved, that led him to concludethat the starting point of two years and six months' imprisonment which had beenearlier indicated remained appropriate. The Judge's methodology was thereforecorrect.[18] The next issue is whether the Judge's starting point was neverthelessmanifestly excessive for the quantity of drugs involved and Mr Henderson's role.Relevant to this is the indicia set out in Zhang.10 The Judge referred to the indicia butdid not say whether he viewed Mr Henderson as in the "lesser" or "significant"category or somewhere in between. He commented that they were difficult to applyto Mr Henderson's "one man band" operation.117 Zhang, above n 3, at [125].8 Police v Henderson, above n 2, at [22].9 At [22].10 Zhang, above n 3, at [126].11 At [23].[19] Counsel for Mr Henderson submits that his offending better fitted the indiciain the "lesser" category. He submits:(a) Mr Henderson was at least partly motivated by his own addiction (asindicated by the presence of pipes in the vehicle and the pre-sentencereport);(b) he received little or no actual or expected financial gain (as indicatedby the relatively small amount of cash found in the vehicle, the smallquantity of drugs found, his comments in the pre-sentence report aboutthis and the absence of any contrary evidence);(c) he had no influence on those above him in the chain (as indicated bythe Judge's acceptance that this was a one man band operation in whichMr Henderson supplied smaller amounts from someone who sold himlarger amounts, the absence of any contrary evidence, and the small sizeof the operation as indicated by the small quantity of drugs and cashfound on him); and(d) his operation was at least partly for his and his partner's own drug useon a non-commercial basis.[20] I agree with this assessment. It was suggested by both counsel that possiblyone of the indicia under "significant" applied, namely that he had some awareness ofthe scale of the operation. But that was only because he was a street-level dealerrunning his own operation. There was no suggestion he was involved in a wideroperation and had knowledge of its scale. I consider that Mr Henderson's role bestfits into the "lesser" description. This indicates a starting point materially below thetop of band 1. In my view something in the region of two years' imprisonment wouldappropriately reflect Mr Henderson's culpability given the quantity of drugs and hisrole.[21] That starting point is confirmed by the cases counsel have referred to me:(a) Tuuta v R:12 this case also involved charges arising from a search ofMr Tuuta's vehicle in which 16.3 g of methamphetamine, $4,230 cash,a sawn-off shotgun and 11 rounds of ammunition were found. It wasaccepted that his role was in the lesser category, as a low or street-leveldealer.13 The Judge considered that a starting point of two to two anda half years' imprisonment on the methamphetamine offending wouldhave been within range. Mr Henderson had a much smaller quantity ofdrugs and had less cash. This supports a starting point of two years'imprisonment.(b) Pona v R:14 this case involved charges arising from a search ofMr Pona's home, where the police found a firearm, ammunition andevidence of methamphetamine dealing. A two year starting point wasadopted for charges of supplying and offering to supply a total of 22 gof methamphetamine.(c) Giles v R:15 this case involved 15 charges of offering to supplymethamphetamine over a four month period involving a total quantityof four grams. The High Court upheld a starting point of two years andnine months because Mr Giles was not selling the drugs to fund his ownuse but was doing so to fund his lifestyle.[22] The much smaller quantity of drugs and the lesser cash than in Tuuta, and theevidence of higher quantity in Pona, confirm that a starting point of no more than twoyears' imprisonment was appropriate for Mr Henderson on the methamphetaminecharge. Although the quantity in Giles was similar, the motivation for the dealingdistinguishes it.12 Tuuta v R [2019] NZHC 2788.13 At [28].14 Pona v R [2020] NZHC 3503.15 Giles v R [2020] NZHC 2372.Totality[23] The next issue is whether the Judge erred by failing to make an adjustment fortotality. It is true that the Judge made no explicit reference to totality. The questionfor this Court on appeal is whether a totality adjustment should have been made toreflect the gravity of the offending as a whole.16[24] On the firearms and ammunition charges, Mr Henderson refers to the ninemonths uplift that was adopted in Tuuta and Pona. He acknowledges, however, thatthe 12 months' uplift cannot be said to be out of range given the Court of Appeal'srecent decision in Joyce.17 There the Court upheld an uplift of 18 months'imprisonment saying that it has "consistently upheld uplifts of between 12 and 18months' imprisonment when those involved in drug dealing are found with firearmsin their possession".18[25] I agree that the 12 months' uplift was not out of range. There were threefirearms in Joyce, one of which was loaded, so that was a more serious case than here.Tuuta pre-dated Joyce. Although Pona post-dated Joyce, the focus on appeal was thestarting point for the quantity of drugs as determined on the appeal. The Judge rejectedan argument that the lenient uplift for the firearms offending in the District Court savedthe end sentence from being manifestly excessive, implicitly acknowledging the upliftwas lenient.[26] I consider also that it is not particularly material that it was not proven whetherthe ammunition fitted the firearm found in the vehicle. I agree with the respondentthat the only available inference was that the ammunition was intended to be used forthe same purpose as the firearm, that is, in association with Mr Henderson's drugsoperation (as admitted by Mr Henderson in the pre-sentence report) with all the riskthat this entails.16 Sentencing Act 2002, s 85. Simon France (ed) Adams on Criminal Law – Sentencing (online ed,Thomson Reuters) at [SA85.01].17 Joyce v R, above n 5.18 At [24].[27] I agree with the Judge that the dangerous driving charge was a bad case of itskind. It warranted an uplift on the starting point for the other charges and the twomonths' uplift the Judge applied was appropriate.[28] With a starting point of two years' imprisonment on the methamphetaminecharge, an uplift of one year for the firearms and ammunition charge, and two monthsfor the driving charge, that gives an adjusted starting point of three years and twomonths' imprisonment. Standing back to consider whether that is wholly out ofproportion to the gravity of the offending as a whole, I am not persuaded that it is. Itherefore consider a totality adjustment was not required.Manifestly excessive end sentence[29] The last question is whether the end sentence was manifestly excessive becausethe starting point of two and a half years' imprisonment for the methamphetamineoffending was too high.19[30] There was no suggestion that the Judge should have uplifted the total startingpoint for Mr Henderson's limited conviction history, nor that the Judge's discounts forpersonal mitigating factors were out of range. Applying those discounts to the adjustedstarting point of three years and two months' imprisonment gives an end sentence oftwo years and two months' imprisonment. That compares with the end sentence oftwo years and six months' imprisonment imposed in the District Court. A four monthdifference is significant relative to a sentence of this length. Contrary to therespondent's submission, it goes beyond "tinkering".Result[31] The appeal is allowed. The sentence of two years and six months'imprisonment for the charge of possession of methamphetamine for supply is quashed.A sentence of two years and two months' imprisonment is substituted. The sentenceson the other charges remain.Mallon J19 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [32]-[35].