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…

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 R v Van der Wiel

Details

AGLC: R v Van der Wiel [2017] NZHC 1411
Case: [2017] NZHC 1411
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, the case of the Queen versus Nicholas Van der Wiel was heard and determined. The defendant was charged with possession of methamphetamine for supply and supplying methamphetamine. The case involved the defendant's involvement in a methamphetamine, BZP and cannabis drug ring. The defendant had entered a guilty plea to the charges, and the sentencing hearing took place on 23 June 2017. The primary legal issue was the appropriate sentence for the defendant, considering the nature of the offences, the defendant's personal circumstances, and the rehabilitative efforts undertaken.

The court considered the defendant's drug dependency and family issues, as well as the rehabilitative steps he had taken. The court also considered the need for a substantial rehabilitative programme to address the defendant's drug dependency. The court found that the defendant's rehabilitative efforts were not as substantial as those of his co-defendants, and therefore, the court could not reduce the sentence as significantly. The court determined that a six-month discount for personal factors was appropriate, which was increased to nine months due to the defendant's recent efforts. The court also considered the significance of the defendant's guilty plea, which resulted in a further four-month discount. The court ultimately sentenced the defendant to two years and five months' imprisonment.

The court acknowledged the defendant's personal difficulties and drug dependency but found that they did not justify a significant reduction in the sentence. The court also recognised the value of the rehabilitative efforts undertaken by the defendant but found that they were not sufficient to warrant a sentence of home detention. The court concluded that the sentence of two years and five months' imprisonment was appropriate, considering the seriousness of the offences and the defendant's personal circumstances.

Orders