R v Van Niekerken - [2012] NZHC 3546

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2011-054-463 [2012] NZHC 3546

THE QUEEN

v

HERRE VAN NIEKERKEN

Hearing: 19 December 2012 (Heard at Wellington)

Counsel: E C Killeen for Crown
S N Hewson for Accused

Sentence: 19 December 2012

SENTENCE OF RONALD YOUNG J

[1] Mr Van Niekerken, you are now for sentence having pleaded guilty on two charges; one a representative charge of supplying methamphetamine; and one of conspiracy to supply. You, as have a number of other offenders, are being sentenced arising from a Police investigation which intercepted a number of communications arising from a substantial methamphetamine network. You were involved during the September 2010/February 2011 period.

[2] The methamphetamine network involved the sourcing of precursor material from suppliers in Auckland; the manufacture of methamphetamine in Hamilton and Murupara; and the distribution of methamphetamine at a street level in Manawatu,
Whangaui and Horowhenua.

R V HERRE VAN NIEKERKEN HC PMN CRI 2011-054-463 [19 December 2012]

[3] The supply charge is a representative charge relating to all supply during the course of the operation through until February 2011 except for the supply in counts
2, 10, 13, and 21 in the indictment. You were charged jointly with Mr Matthews and

Mr Busch.

[4] The brief facts are, with regard to your offending, that on two occasions in November and December of 2010, 840 grams and 420 grams were supplied. As to the 840 grams, Mr Matthews arranged through you for co-offenders to travel to uplift the methamphetamine which had been manufactured in Hamilton. And with respect to the December supply, you and Mr Matthews met at another’s house and discussed the purchase initially of 280 grams of methamphetamine. You paid cash then as some form of down payment. In early December you met again but it seems then there was 420 grams of methamphetamine available which was purchased by the other accused and supplied through you to Mr Matthews.

[5] It was clear then you were involved in the payment for that drug and in authorising another accused to continue to manufacture methamphetamine with the remaining precursor material that had been supplied.

[6] There were four other individual suppliers of methamphetamine involving

14 grams, 1.4 grams, 2 grams and again 14 grams respectively.

[7] The overall result is that you are being sentenced on the basis of participation in the supply of just over 1 kilogram of methamphetamine. It seems clear to me having reviewed the evidence that you were below Mr Matthews in the command structure and clearly directed by him. But in that command structure it was clear that you were near the top of the organisation.

[8] You claimed that you did not profit financially from any of the drug dealing to any great degree and that you were essentially at the disposal of Mr Matthews supplying drugs. Your counsel says that you are similar to Mr Busch who was sentenced on the basis of involvement in 1.6 kilograms of methamphetamine with…

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 Niekerken

Details

AGLC: R v Van Niekerken [2012] NZHC 3546
Case: [2012] NZHC 3546
Decision Date: 19 December 2012

CaseChat Overview and Summary

In the case of The Queen v Herre Van Niekerken, the defendant was sentenced for his involvement in a methamphetamine supply network. The case was heard in the High Court of New Zealand at Palmerston North Registry. Van Niekerken pleaded guilty to a representative charge of supplying methamphetamine and conspiracy to supply. The court had to determine his appropriate starting point and the relevant deductions for his guilty plea and other mitigating factors.

The primary legal issues involved determining Van Niekerken's role within the methamphetamine network and the appropriate starting point for his sentence. The Crown argued that Van Niekerken's culpability was greater than that of other co-offenders due to his significant role in the drug operation. In contrast, Van Niekerken's counsel argued for a starting point similar to another co-offender, asserting that Van Niekerken's role, though senior, did not warrant a higher starting point than those involved in manufacturing. The court needed to balance the mitigating factors, including Van Niekerken's remorse, family circumstances, and his limited prior convictions, against the severity of his involvement in the drug operation.

The court concluded that Van Niekerken held a significant role in the methamphetamine network, placing him higher in the hierarchy than some co-offenders but below the primary leader. The court accepted the Crown's argument that Van Niekerken's culpability warranted a higher starting point than some co-offenders but not as high as the primary leader. The starting point was set at 12 years and three months' imprisonment, with deductions for the guilty plea and purity, resulting in an overall sentence of nine years and six months' imprisonment. The court considered the various mitigating factors but determined that no further deductions were justified.

The final orders of the court were that Van Niekerken be sentenced to nine years and six months' imprisonment on both charges, with no minimum period of imprisonment sought. The court also acknowledged the asset seizure of about $30,000 but noted that unresolved asset confiscation issues remained before the courts.

Orders