R v Van der Wiel

[2017] NZHC 1411

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-003701 [2017] NZHC 1411

THE QUEEN

v

NICHOLAS VAN DER WIEL

Hearing:	23 June 2017
Counsel:	E M Light for Crown S N Hewson for Defendant
Sentence:	23 June 2017
Reasons:	26 June 2017

SENTENCING NOTES (REASONS) OF CLIFFORD J

[1]      Mr van der Wiel    I    provided    you    with    a    sentence    indication    on

15 December 2016  were  you  to  plead  guilty  to  one  representative  charge  of possession of methamphetamine for supply and one representative charge of supplying methamphetamine.    I indicated an end sentence of three years’ imprisonment.     I  said  that,  depending  on  the  outcome  of  the  pre-sentencing processes, and any reports I received, “recognition may be available to you if you have undertaken significant rehabilitative efforts, and for other personal factors not before me today”.  You accepted that indication that day.  You were not able to enter your guilty plea, however, as a revised charging document was not available.  You were remanded, on bail, until 27 February 2017.  The anticipation was on that day you would enter your plea and I would sentence you in terms of the indication I had

given you.

R v VAN DER WIEL [2017] NZHC 1411 [23 June 2017]

[2]      On 27 February 2017 you appeared before me. You entered your guilty pleas and I entered convictions against you.

[3]      I did not, however, sentence you that day.   As my minute of 28 February records, Mr Hewson asked for sentencing to be adjourned so that he could properly investigate any opportunity you might have to undertake treatment for your drug dependency.  He did so on the basis that, until he had received some of the materials prepared for sentencing, he had not understood the extent of your drug dependency and of other factors relating to you personally.  Mr Hewson sought that adjournment to provide time to arrange treatment for you which, if approved by the Court and successfully completed, might provide a basis for a submission that the term of the presumptive  prison  sentence  would  allow  for  home  detention  to  be  considered. Mr Hewson no doubt had in mind the sentences I imposed on your co-defendants, Mr Persico and Ms Morrison.  I granted that adjournment.  I did so until 29 March. At that time, Mr Hewson was to report to the Court as to whether or not you had been accepted into a residential programme.  Mr Hewson was not in a position on that day to provide such a report.   You, however, did attend Court.   Through the Registrar, I further adjourned your sentencing hearing until that day.

[4]      Since  then,  there  have  been  a  number  of  hearings  at  which  I  have endeavoured to clarify, with help from your counsel, the rehabilitative steps you had undertaken, the impact they had had on you and any other steps you may have been able to take.  I recorded that process most recently in my minute of 25 May.

[5]      On Friday 23 June I sentenced you in terms of that indication.   Given the long history of this matter, I did so in a relatively brief fashion, identifying for you the essential reasons which led me to impose a sentence of two years and five months’ imprisonment.  I said I would provide more detailed reasons following your sentencing hearing.   I note I adopted that approach with the consent of both your counsel and the Crown.

[6]      So I now provide those more detailed reasons.

[7]      In sentencing you, I took account of the steps you have taken to address your drug dependency, the additional, personal, material you provided to me in February and the pre-sentence reports that had been provided to me.

[8]      The factual basis upon which I sentenced you was as follows.

[9]      You were tried last year, along with Mr Clint Helmbright and a number of other defendants, for your alleged participation in what has become known as Operation Nebraska.    Operation Nebraska was an investigation into a methamphetamine, BZP and cannabis drug ring operated by Mr Helmbright in the lower North Island and Christchurch.  The case against you was that you obtained methamphetamine from Mr Helmbright, and on-supplied and on-sold it.   Whilst the jury were hung on all the charges  you faced, verdicts were returned as regards Mr Helmbright and one other defendant.   I have already sentenced Mr Helmbright and that defendant.  Other persons who participated in Mr Helmbright’s ring had, at the time of your trial, already pleaded guilty and been sentenced.  Evidence of their offending was given at your trial.

[10]     You then faced a retrial on all of the charges you faced at your original trial. At that point a sentencing indication was requested on the basis the Crown would withdraw the existing charges and substitute the two representative charges.

[11]     The summary of facts which you accepted and on the basis of which you entered your guilty pleas to the two representative charges the Crown laid after I had given my sentencing indication reflected the allegations against you at trial.

[12]     That is, you obtained methamphetamine from Mr Helmbright on at least

11 separate occasions.  The total known quantity of methamphetamine involved on those occasions was approximately 40 grams.  It is accepted that of that 40 grams, you  used  approximately  15  grams  yourself:  of  the  remaining  approximately

25 grams, you either supplied that to your wife for her use or on-sold it to associates. In addition to meeting Mr Helmbright on those 11 occasions, you communicated with him in a number of ways using various code words, principally relating to chainsaws  and  chains,  to  refer  to  methamphetamine.   You  and  your  wife  were

observed by police on several occasions meeting with Mr Helmbright in locations such as petrol stations and hamburger bars.

[13]     There was evidence at your trial (recovered text messages) of you supplying methamphetamine to a number of people in your local area. Again, code words were used, principally based on the firewood business you ran.

[14]     The tariff case is R v Fatu.1   On the basis of the amount involved, and what I took from the evidence more generally, your offending is low to mid-level Band two offending.2   There were questions about the purity of some of the methamphetamine. I also took account of the amount of methamphetamine you used yourself, or which you supplied to your wife for her personal use.

[15]     Taking all those matters into consideration, I was satisfied that, as indicated, the appropriate starting point for your offending was three years and six months’ imprisonment.

[16]     I then turned to factors personal to you.

[17]     Your pre-sentence report referred to the drug problems you and your wife had experienced,  and  associated  family  issues.    It  also  referred  to  your  role  in  the firewood and timber clearing business that you and other family members were engaged in.

[18]     Your mother had written a letter on your behalf.  Essentially she asked that you be sentenced to home detention.   In doing so she continued to affirm your innocence.  She referred to family difficulties.

[19]     You elaborated upon those family difficulties in a letter you had written to me in February.  Of particular relevance you referred to an addiction to amphetamines arising out of use of painkillers following a logging accident.  You referred also the

effect of the suicide of your little sister in 2005, the suicide in 2010 of your 18–year

1      R v Fatu [2006] 2 NZLR 72 (CA).

2      At [34] – supplying commercial quantities (5 g to 250 g), with a sentencing band of three years’

to nine years’ imprisonment.

old  son  and  other  events  (including  the  death  of  your  brother’s  wife  in  a  car accident).  You said all of those events placed you under considerable stress.  You attributed your recent use of methamphetamine to those stresses.   You said you regretted not contacting your methadone support programme when you began using methamphetamine in 2013.

[20]     As Mr Hewson no doubt told you, generally personal factors do not justify any significant reduction in the sentence of a person who has been found guilty, as you  have,  of  commercial  methamphetamine  offending.     Having  said  that,  I recognised the personal difficulties you referred to, and in particular the suicide of your little sister, the suicide of your own son and the death of your sister-in-law in a car accident, none of which were disputed by the Crown.   I had no doubt those events would have placed you and your family under considerable stress.   In my view some reduction in your sentence was appropriate to acknowledge the mitigating factors.

[21]     Finally, and in terms of personal factors, I turned to the rehabilitative efforts you had taken since February, and the outcome of those efforts.  I had, over the last few months, received a variety of reports.  Most recently Mr Hewson had provided me with correspondence from the Mental Health and Addiction Recovery Service Trust in Palmerston North, and the results of a urine drug screen carried out last week.     I  recorded  that  you  had  voluntarily  participated  in  the  MONARCH programme run by the Trust.  The letter received described that programme.  The urine test disclosed the presence of cannabis, but not of amphetamines.   I did not doubt the value of such a programme, the good faith of those who provide it and the positive significance of your willingness to participate in it.   Unfortunately, that programme had neither the formality nor, in terms of outcome, the finality and success in addressing your drug dependency that I was looking for, and which I had found in the cases of Mr Persico and Ms Morrison.  That is, and as I had indicated to Mr Hewson in your presence on 27 February 2017, given the seriousness of your offending, a very substantial rehabilitative programme would need to have been successfully completed by you for there to be the chance of a sentence of home detention.  Moreover, I was to approve that proposed course of action, before you embarked on it.   As matters have transpired, that did not occur.   So whilst I was

prepared to give you some additional credit for the steps you had taken since February,  the  degree  of  credit  I  recognised  in  the  case  of  Mr  Persico  and Ms Morrison (whose starting points were three years, and two years and nine months respectively) was not available to you.

[22]     When I was contemplating sentencing you in February I had determined that a six–month discount for all personal factors was appropriate.  In light of your recent efforts, I increased that discount to nine months.  That resulted in an end sentence, before taking account of your guilty pleas, of two years and nine months’ imprisonment.

[23]     As  regards  the  significance  of  your  guilty  pleas,  this  was  a  reasonably unusual situation.  You had already gone to trial, and no verdicts were returned.  You were in many ways in a similar position to a defendant facing a first trial.  On the other hand, there had already been one trial at which you maintained not guilty pleas. A pragmatic assessment of the appropriate discount was therefore to give you half the discount that would have been available to you had you entered a guilty plea at an equivalent stage before your first trial.   In my view, although not early, in that situation you would have received a full discount, particularly bearing in mind the benefit  to  the  system  of  avoiding  a  lengthy  trial.    Accordingly,  and  again  as indicated, I considered the appropriate guilty plea discount to be a 12.5 per cent reduction.  This equated to a discount of four months, resulting in an end sentence of two years and five months’ imprisonment.

[24]     It was for those reasons, Mr van der Wiel, I sentenced you to two years and five months’ imprisonment.

Solicitors:

Crown Solicitor, Wellington for Crown

Ord Legal, Wellington for Defendant

“Clifford J”