The Queen v Henwood [2008] NZCA 248 (18 July 2008)

Last Updated: 28 July 2008

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.

100. The 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 manufacturing activity.
[9] In July 2007, while the appellant was on bail, the police searched his sleep-out at Liverpool Crescent, Hastings. They found another methamphetamine dealers kit from which the drug appeared to have been sold, nearly seven grams of methamphetamine (in snaplock bags), chemicals for the manufacture of the drug, eight cannabis tinnies, stolen chainsaws and $6,800 in cash.

Sentencing

[10] Wild J identified the most serious convictions as those of possession of methamphetamine for supply:

• (a) Count one, relating to the methamphetamine found in a shoulder bag at Orchard Road in September 2005; and
• (b) Count 14, relating to the methamphetamine found in his sleepout at Liverpool Crescent in July 2007.

[11] The Judge’s approach was to impose on each of those two counts a lead sentence. The sentence on count one was to embrace all the 2005 offending and the sentence on count 14 was to embrace all the offending in 2007. He added those two lead sentences together to give a total effective sentence reflecting all of the offending, which was then reappraised in terms of totality.
[12] In respect of the 2005 offending, he adopted a starting point of eight years’ imprisonment for count one which was said to take into account the “sinister and serious” aggravating feature of the possession of firearms as well as the other offending.
[13] The Judge then took a starting point of four years’ imprisonment for Count 14. That starting point was said to take into account both the associated offending and the fact that it was committed while the respondent was on bail for the 2005 offences.
[14] Turning to totality, the Judge held that an effective sentence of 12 years’ imprisonment would be too severe and reduced it to ten years’ imprisonment. He expressed that as consisting of cumulative terms of seven and three years’ imprisonment in relation to each conviction for possession of methamphetamine for supply.
[15] Accepting the Probation Officer’s advice of the respondent’s perceived low risk of re-offending, the Judge declined to impose a minimum term of imprisonment.

Submissions

[16] Mr Downs submitted that the sentence failed sufficiently to capture two major aspects of the respondent’s offending and was manifestly inadequate. The first was that the sentence paid inadequate regard to the respondent’s possession of 14 firearms. The second was that the sentence paid inadequate regard to the respondent’s cannabis offending and the fact of his possession of substantial quantities of drugs of more than one class. Mr Downs submitted that the eight year starting point for the 2005 offending was at least two years and more likely three years too low. He made no challenge to the starting point of four years’ imprisonment in relation to the 2007 offending although he invited the Court to consider whether the figure was benevolent given that the offending was similar in nature and was committed on bail.
[17] As to totality he submitted that because the starting point was manifestly inadequate so too was the result. He argued that the appropriate starting point for the 2005 offending was 10 to 11 years, the appropriate starting point for the 2007 offending (on bail) was at least four years, and the resulting sentence of 14 to 15 years ought on a totality basis to have been reduced to 12 to 13 years. Given the principles applicable to Crown appeals, he suggested the 12 year figure should be selected.
[18] Mr Downs submitted that there ought also to have been a minimum term of imprisonment. In response to the Judge’s reason for not imposing such a term (that the respondent was assessed in the pre-sentence report as presenting a low risk of re-offending) he submitted that the seriousness of the offences and the fact of offending whilst on bail required a minimum term to deter and denounce the respondent’s conduct as well as to protect the community.
[19] Mr Kaye pointed to the fact that the Judge’s eight year starting point for the 2005 offending reflected the presence of firearms, some of which the respondent had received dishonestly, and which the Judge described as a sinister and serious aggravating feature. He submitted that, although the sentences may be towards the bottom of the legitimate range, they cannot be said to be inadequate. He supported the Judge’s approach.

Discussion

[20] The Irongate Road–Orchard Road premises contained a significant methamphetamine manufactory, including the immediate means of providing over 100 grams of methamphetamine. The sentencing band set in R v Fatu [2006] 2 NZLR 72 at [34] (supply of commercial quantities of methamphetamine (five to 250 grams)) is three to nine years’ imprisonment; that for manufacturing up to 250 grams is four to 11 years’ imprisonment (at [43] of Fatu).
[21] Since the respondent was acquitted of manufacture we approach the case on the footing that, while he was geared up for the manufacture, the process had not yet taken place. As to that, we note that in Fatu at [45], this Court recorded that:

... the new guidelines will tend to lift sentencing levels, as they reflect the criminality inherent in gearing up to manufacture methamphetamine.

[22] Wild J held that the 2005 methamphetamine offending was “squarely into band 2 ... of ... R v Fatu which would justify a five or six year starting point for that offending alone”.
[23] Possession of firearms in the context of drug offending is always a serious aggravating feature: R v Faifua CA287/05 27 March 2006 at [26]. The fact that the respondent had 14 firearms, of which six were operable, one was loaded, and three were military style, evokes the observation in R v Taylor [2007] NZCA 258 at [58]:

Possession of an arsenal of firearms, and ammunition, in association with a robbery kit, speaks for itself. The end sentence of four years imprisonment for these offences cannot be assailed, as previous decisions of this Court concerning possession of firearms demonstrate: R v McDonald CA108/00 10 July 2000, R v Richardson CA450/02 25 March 2003 and R v Taylor CA176/03 24 October 2003.

In this case an increase of at least three years is warranted for the weapons unlawfully in the respondent’s possession.

[24] There is in addition the respondent’s possession in 2005 of 11 pounds of good quality cannabis material, some of it packaged in ounce deal bags. That offending falls within the upper end of band 2 of R v Terewi [1999] 3 NZLR 62 (CA) which attracts a starting point of two to four years’ imprisonment.
[25] Also relevant is the fact of possession of commercial quantities of drugs of different classes, indicative of the provision of a “one stop drug shop”. In R v Barker CA57/01 30 July 2001 at [17] this Court observed:

Offenders who trade in all classes of drugs with the inherent risk in such trading that their customers will graduate from the less harmful to the more injurious drugs cannot expect the sympathy of the Court.

[26] We accept the Crown’s submission that the eight year starting point for the 2005 offending, before considering totality, should have been at least ten years and perhaps 11. Adding to that four years for the 2007 offending yields a total of 14 to 15 years. Recognising the need for proportionality, expressed in the requirement to consider totality, we accept the Crown’s submission that the proper sentence was one of 12 to 13 years. We prefer the figure of 12, because this is a Solicitor-General’s appeal.
[27] We also accept the Crown’s submission that there must be a minimum term of imprisonment. The principles are stated in R v Taueki [2005] 3 NZLR 372 (CA) at [47] – [58]. The question is whether the one-third period provided by s 84(1) of the Parole Act 2002 is insufficient for the purposes of accountability (punishment), denunciation, deterrence and protection of the community from the offender.
[28] The careful planning and organisation lying behind the first offending coupled with the recidivism of the second requires a sceptical view of the Probation Officer’s opinion that the respondent “has a low risk of reoffending as he acknowledges his actions were wrong on this occasion and will not consider this form of enterprise again”. He has two previous convictions of theft as a servant, and has been convicted as accessory after the fact in burglary. We do not accept the Probation Officer’s assessment. We accept the Crown’s submission that the offending was serious and multifaceted, some of it committed on bail. We impose a minimum period of imprisonment of six years.

Decision

[29] Leave to appeal is granted and the appeal is allowed. The sentence of ten years’ imprisonment is quashed and replaced with a sentence of twelve years’ imprisonment with a minimum period of imprisonment of six years. That will be achieved by substituting a term of nine years for the seven year term imposed on the 2005 charge of possession for supply.

Solicitors:
Crown Law Office, Wellington