R v Henderson [2016] NZDC 26055 (19 December 2016)

Last Updated: 9 March 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT WELLINGTON

CRI-2015-085-005693 [2016] NZDC 26055

THE QUEEN

v

_{JOHN PERRY MORGAN HENDERSON}

Hearing:	19 December 2016
Appearances:	E Light for the Crown J Miller for the Defendant
Judgment:	19 December 2016

_{NOTES OF JUDGE C N TUOHY ON SENTENCING}

[1] John Henderson, you appear for sentence on a number of charges on which you were found guilty after a lengthy trial at which I presided. They were: two charges of possession of methamphetamine for supply, the maximum penalty for which is life imprisonment, two charges of possessing the Class B drug cannabis resin for supply which has a maximum penalty of 14 years’ imprisonment, possession of cannabis for supply with a maximum penalty of eight years’ imprisonment, cultivating cannabis which has the same maximum penalty and finally a charge of resisting the police. They were charges 1, 1A, 2, 4, 6, 8 and 9 in the charge list at the trial.

[2] The facts were covered extensively during the trial and it is unnecessary to repeat them all but the major offending relates to a search of your home on

29 May 2015. You were found then to be in possession of a large amount of

_{methamphetamine found in your home hidden in a Pledge can and more of it which}

R v JOHN PERRY MORGAN HENDERSON [2016] NZDC 26055 [19 December 2016]

was dropped while you were running away after the police arrival and which fell out of your backpack in the compost heap just over the next door neighbour’s fence and across their lawn. The total weight of that cannabis was 120 grams, it was packaged in bags weighing 20 grams odd and it was obviously, and the jury found so, in your possession for supply or sale.

[3] I interpolate here that going on the lower figure of say $800 a gram as being the value of methamphetamine that amount that you were actually in the possession of that day was worth about $100,000.

[4] Significantly also found in your home or dropped in the compost heap and along the road while you were running away was over $300,000 in cash in $20 and

$50 notes; $200,000 of that was hidden in a couch at your home and the balance was dropped on the way and picked up and the $200,000 was in what were called two “bricks” of $100,000 which is a pretty large brick and the other amounts of money were in bundles of $10,000 each. It is quite possible, indeed I think likely, that not all the cash and methamphetamine that you had in your possession that day was dropped while you were running away. One cannot say that there was any more but the way it was dropped was bit by bit as you were running and you escaped with your backpack and whatever else was in it. Also in your possession that day was

20 grams of cannabis resin for supply, the jury held it was for supply, three cellphones, two of them BlackBerrys which as explained in the evidence are quite useful for drug dealers, snap lock bags, a set of scales and so on.

[5] Then there was some lesser offending on 30 March 2016, almost a year later. You did not get located by the police, they were looking for you obviously after

29 May but it was not for some months till they found you and you were then granted bail to your sister’s address and a search was carried out there. A further amount of cannabis resin was found and you were found guilty of having that in your possession for supply and also guilty of cultivating five plants of cannabis at that time. There was a further $50,000 in cash found there, there was evidence given at your trial that that had coincidently an innocent source. I have to say that I was not persuaded by that evidence but I would also say that in terms of sentencing it really adds little to what was already found which was $300,000 odd anyway.

[6] You were found not guilty of charges relating to smaller amounts of methamphetamine found when you were arrested and found at your sister’s place. But you did pick up also a charge of resisting arrest when you were arrested but that is very minor in the scheme of things. You were, on any view, carrying on a large scale commercial dealing in methamphetamine involving very substantial amounts of methamphetamine and you were acquiring large sums of money.

[7] I have to say that I reject Mr Miller’s characterisation of this as you running an unsophisticated small operation from your lounge basically, bottom of the food chain dealing to support your addiction. I fully accept that you are or have been a methamphetamine addict and no doubt in a position because of your dealing to use a substantial amount of methamphetamine. But no addiction gets anywhere near the amount of methamphetamine and the amount of money that you had in your possession. As I say the amount in your possession alone was worth about $100,000 or close to it and the cash of over $300,000 speaks for itself. With respect it is simply completely implausible to suggest that you were dealing just to supply your own addiction. The Court has seen many people who do that and their dealing is on a totally different and lower scale to yours.

[8] I do not accept that the cash is a red herring. Your counsel seeks to explain it on the basis that it was not your cash, that you owed it to your supplier. The cash indicates sales of methamphetamine of a much greater weight than was in your possession. There is no other plausible explanation for the fact that you had more than $300,000 in cash. Although I accept that some of that sum that you were found with, quite possibly what was in your back-pack, needed to be paid to your supplier to get your next lot of supplies but in no way do I accept that you were just an addict left in possession of $300,000 of someone else’s money.

[9] So I have to say that the reality is that you were dealing on a very substantial scale and for profit, for money as well as to supply your addiction which could only have accounted for a relatively small proportion of the methamphetamine and the cash that you were dealing in.

[10] As you are probably aware when the Court is sentencing for possession of methamphetamine for supply, which are obviously the major charges you are facing, there is a case called R v Fatu1 which is a Court of Appeal case which sets out the guidelines that the Court has to follow in terms of placing the particular case in a range. It starts at a bottom of three years’ imprisonment for under five grams and all the way up to life imprisonment which has been imposed on a couple of cases. Both counsel submit that this offending falls into what is called the lower band in Fatu which is for amounts of between five grams and 250 grams, which is a very big

range, and the range is said to be somewhere between three years and nine years’

_{imprisonment for that amount.}

[11] While the weight of the methamphetamine is a guide and the usual guide that the Courts look to first, one has to look at the whole circumstances. The methamphetamine you had was 120 grams which is a lot but one also has to look at in the light of the cash that you were found with which can only be the proceeds of

_{sale of some multiple of that.}

[12] The Crown has submitted that the appropriate starting point should be seven years’ imprisonment. Your counsel in the written submissions submitted the starting point should be between five and a half and six years’ imprisonment. Today Mr Miller has suggested five years’ imprisonment.

[13] Looking at the whole of the circumstances my view of the size and seriousness of the offending is that the Crown starting point is the minimum, seven years, for the methamphetamine dealing offending and it could have been higher but I am going to stay with that because that is the most that the Crown has submitted.

[14] There is also a difference in terms of how the cannabis offending should be fitted in. Both parties submit that there should be an uplift for it but Mr Miller suggests six months, the Crown suggests three and a half years but reduced to two years for totality. Cannabis offending falls into two classes really, the first cannabis resin that was found with the methamphetamine on 29 May and then

the rest of it, what was found when your sister’s house was searched. In relation to that latter it has to be pointed out, and it has been, that that offending was committed while you were on bail for the first lot.

[15] There is again a guideline case R v Terewi2 which is somewhat old now and starting in my view, to lose its force as attitudes change. But applying that case if one were to apply it strictly then the Crown submission would not be too far out. In my view, an uplift of two years for that is required but it should be reduced because of totality to an 18 month uplift which would make eight and a half years’

_{imprisonment in all.}

[16] Now there have been other things sought. The Crown seeks that there be a further uplift for your previous history of drug offending. I am not going to impose that. There are certainly quite a lot of previous convictions but most of them relate to possession and cultivation of cannabis and the dealing offence in cannabis goes back more than 20 years so I do not consider that any uplift for your previous

_{convictions is justified and I am not going to impose it.}

[17] On the other hand Mr Miller has argued strongly, both today and in his written submissions which covered everything, that I should take into account personal circumstances. He has provided to the Court a very insightful alcohol and drug report from Ms Casey and a very deep and helpful psychiatrist’s report as well. Out of that there are some factors that go to your credit in my opinion. First, that you have in effect, it seems to me, accepted responsibility for the offending. In fact you seem to have been open and, I think, honest in terms of both your offending and your life with both of those people. You do not seek to shift guilt or responsibility onto anyone else. It is unfortunate, it has to be said, that you have come to that position after trial rather than before because a plea of guilty would have resulted in a reduction in sentence of at least two years but that has not happened.

[18] I have seen that you have lived throughout your life in the Porirua area. I have read the letters from your siblings, your sisters and your brother as well as the reports and I see you had a really difficult start to life like so many people who

appear before the Courts and that you really went off the rails and got into drug use, albeit cannabis in your early teens and have really stayed with it. You moved into dealing with cannabis, you got sent to prison for that in 1992 and after that you became involved in methamphetamine and then dealing in it and addicted to it.

[19] The other good thing is that together with your honesty has come what I accept is a genuine resolve to overcome your addiction and you have one good thing, that is the support of your family including your brother and sisters. However, there is a question of how that can be taken into account. It has been said on numerous occasions in the higher courts that personal factors can bear little weight in sentencing for drug dealing. That is more so the more serious the dealing and therefore the more harm that it has caused to society. The need for deterrence has been said by the higher courts to be overriding and that is reflected in the maximum sentence of life imprisonment.

[20] I think that it is right that I should repeat to you what I said to your son when I sentenced him: that methamphetamine causes enormous damage to the community, it impoverishes people who are addicted to it. The hundreds of thousands of dollars which were found at your home, no doubt came from the community that you have been born and brought up in and lived in all your life. It impoverishes the people who are dependent on it, who are addicted to methamphetamine. It causes crime all the time, burglaries, thefts, violence, family violence, family breakdown and child neglect.

[21] This afternoon I am sentencing a man for aggravated robbery of the Astrolabe Food Market just down the road from your house in Astrolabe Street. He and others robbed that dairy and the dairy owner was stabbed in the neck and the person I am sentencing has said that he was under the influence of methamphetamine at the time and that he was doing it to get money for methamphetamine. I do not know whether he was one of your customers, he may very well have been. But that is just an example close to home of what it does.

[22] I understand what Mr Miller has said about you and the fact that you are wanting to rehabilitate but against that is the law and the case law that puts little

weight, at this level of drug dealing, on personal circumstances. But I do not think that means that the creditable personal aspects will not be taken into account in the length of your sentence. You will, at a relatively early stage in your sentence, become eligible for parole. I am going to send these reports and my sentencing notes to Corrections for use by the Parole Board when that time comes and if you continue in the good way that you are going at the moment then I have no doubt that at that point those things will be taken into account, can be and will be in terms of when you are released.

[23] The other matter that I probably need to refer to is this question of the forfeiture of the house. The submissions originally said that the Crown were applying for what is called an instrument forfeiture order which means that a sentencing Judge, me, can order anything used to facilitate the commission of the crime to be forfeited and I have not seen any such application and I am told now that none has been made. If that had been done and I had made an order or I was going to make such an order, then I could take it into account in sentencing. But that has not been done. What is apparently to be done is civil proceedings are going to filed by the Crown seeking to recover the money but also apparently your house as being the proceeds of criminal offending or representing the proceeds of criminal offending.

[24] If and when that application is made, I do not know when it will be dealt with, it is going to be opposed obviously. I have no way of knowing whether it will be successful in relation to the house but it is certainly not obvious to me that it will be. I do not think that I can take it into account at this stage. I would be assuming something which has not even happened and it is not required to be taken into account under the law at this stage. No doubt the Court in any civil proceedings will be aware of the sentence that was imposed on you, to put it the other way around. So I am not taking it into account, I am mentioning it now so that anyone, including the High Court if necessary, realises that you have been given no benefit on sentence based on an assumption that in some way the house might be taken. I think we are a long way from that at the present time.

[25] The end result is that I consider that a sentence of eight and a half years’ imprisonment is appropriate and that will be imposed on the methamphetamine dealing charges and there will be an 18 month concurrent sentence on the cannabis charges. On the resisting arrest charge you will be convicted and discharged.

[26] Having imposed that sentence I do wish you success in the way you are going at the moment.

C N Tuohy

District Court Judge