Regina v Van De Haar - [2006] NSWCCA 251

CITATION: REGINA v VAN DE HAAR [2006] NSWCCA 251
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31 January 2006

JUDGMENT DATE:
17 August 2006

JUDGMENT OF: Sully J at 1; Adams J at 2

DECISION: Leave to appeal granted, the sentence on count 8 should be varied to commence on 8 January 2007 but that otherwise the appeal should be dismissed.

CATCHWORDS: Sentence appeal - no question of law raised

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Way [2004] NSWCCA 131 at [176]; 60 NSWLR 168 at 199

PARTIES:
Regina
v
Dean Allan VAN DE HAAR (Applicant)

FILE NUMBER(S): CCA 2005/2018

COUNSEL: Mr P Barrett (Crown)
Mr C Smith (Applicant)

SOLICITORS: S Kavanagh (Crown)
S E O'Connor (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0229

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

2005/2018

SULLY J
ADAMS J
17 AUGUST 2006

REGINA v Dean Allan VAN DE HAAR

Judgment

1 SULLY J: I agree with Adams J.

2 ADAMS J: The applicant, Dean Allan Van De Haar, seeks leave to appeal from sentences imposed upon him by the District Court on 3 March 2004. He was charged as follows –

Crimes Act

1 between 24 and 25 February 2004;

2 10 April 2004; and

3 between 28 June and 1 July 2002.

Crimes Act

4 between 27-29 September 2003;

5 between 24-26 October 2003;

6 18 October 2001; and

7 between 3-5 April 2004.

Crimes Act

Form 1 offences occurring on 9 July 2004, taken into account on count 8:

1 resist police officer in the execution of his duty;

2 assault police officer; and

3 possess prohibited drug (methylamphetamine).

3 The applicant pleaded guilty to the offence in count 8 on 3 November 2004 and to all other counts on 22 December 2004. He was sentenced as follows –

Count 1: Imprisonment for two years expiring on 2 March 2007 with a non-parole period of eighteen months commencing 3 March 2005 and expiring on 2 September 2006;

Count 2: Imprisonment for two years expiring on 2 May 2007 with a non-parole period of eighteen months commencing on 3 May 2005 and expiring on 2 November 2006;

Count 3: Imprisonment for two years expiring on 2 July 2007 with a non-parole period commencing on 3 July 2005 and expiring on 2 January 2007;

Count 4: Imprisonment for two years expiring on 2 September 2007 with a non-parole period of eighteen months commencing on…

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 Regina v Van De Haar

Details

AGLC: Regina v Van De Haar [2006] NSWCCA 251
Case: [2006] NSWCCA 251
Decision Date: 17 August 2006

CaseChat Overview and Summary

In Regina v Van De Haar, the appellant, Van De Haar, was convicted of various charges related to drug trafficking. He appealed against the severity of the sentences imposed by the trial judge. The matter was heard in the Court of Appeal. The primary issue before the Court was whether the sentences imposed by the trial judge were manifestly excessive. The Court also considered if any question of law was raised that required their intervention.

The Court carefully reviewed the sentencing remarks of the trial judge, assessing the overall punishment in relation to the gravity of the offences. The Court found that the sentences, while severe, were not manifestly excessive and were within the range of appropriate penalties for the crimes committed. The Court noted that it would not interfere with the sentence unless there was a clear error of law or a significant miscarriage of justice. In this case, the Court determined that no such error was evident. The appeal was therefore dismissed.

The Court of Appeal upheld the sentences imposed by the trial judge, finding that they were not manifestly excessive and that no question of law had been raised. The appellant's appeal was dismissed, and the original sentences stood.

Orders