Van Boven v Police - [2022] NZHC 3347

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-173

[2022] NZHC 3347

BETWEEN
LEWIS JOHNATHON VAN BOVEN

Appellant

AND

NEW ZEALAND POLICE

First Respondent

DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing: 7 December 2022

Counsel:

K E Bucher for appellant

G E R Alloway for respondent

Judgment:

12 December 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 12 December 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

VAN BOVEN v NEW ZEALAND POLICE [2022] NZHC 3347 [12 December 2022]

[1]Lewis van Boven was sentenced1 in the Christchurch District Court to

26.5 months’ imprisonment on two charges of receiving,2 a charge of driving whilst disqualified,3 a charge of possessing a methamphetamine pipe,4 a charge of theft,5 and a charge of breaching release conditions.6 Mr van Boven appeals his sentence. He contends he should have received credit for matters raised in a cultural report provided pursuant to s 27 of the Sentencing Act 2002.

Facts

[2] On 9 February 2022, Mr van Boven was sentenced to one year and four months’ imprisonment for a catalogue of offences before being released on conditions. He failed to report on three separate occasions during April 2022.

[3] On 14 May 2022, the owner of a Kawasaki motorcycle listed this vehicle for sale online. He was subsequently contacted and a sale was organised. Mr van Boven arrived at the vendor’s address and showed him what was a doctored image of $4,500 being transferred into his bank account. Mr van Boven left the address with the motor cycle. The vendor never received the money for the motor cycle.

[4] On 26 May 2022, the owner of an Audi vehicle that had been listed online for sale was contacted and a viewing arranged. After the viewing, the vendor was contacted by the same Facebook account. He accepted an offer of $11,000 for the vehicle. The vendor was then sent an edited image of a successful transaction of
$11,000 going into his account. The next morning, Mr van Boven arrived at the address and uplifted the vehicle. The vendor, however, never received any money.

[5] On 1 August 2012, Mr van Boven was disqualified from driving indefinitely. On 29 May 2022, Mr van Boven pumped $85.48 worth of petrol into the Audi vehicle

1      Police v Van Boven [2022] NZDC 21456.
2      Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years’ imprisonment.
3      Land Transport Act 1998, s 32(1)(a) and (3); maximum penalty two years’ imprisonment.
4      Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year’s imprisonment.
5      Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment.
6      Sentencing Act 2002, s 96(1); maximum penalty one year’s imprisonment.

and drove off without attempting to pay. On 20 June 2022, Mr van Boven was arrested on Riccarton Road. A cannabis pipe was located in his backpack.

[6] When spoken to…

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 Van Boven v Police

Details

AGLC: Van Boven v Police [2022] NZHC 3347
Case: [2022] NZHC 3347
Decision Date: 12 December 2022

CaseChat Overview and Summary

Lewis Johnathon van Boven appealed against his sentence imposed by the Christchurch District Court, challenging the refusal to credit the matters raised in a cultural report provided pursuant to s 27 of the Sentencing Act 2002. Mr van Boven was sentenced to 26.5 months’ imprisonment on various charges including receiving, driving whilst disqualified, possessing a methamphetamine pipe, theft, and breaching release conditions. He argued he should have received credit for his upbringing, which included exposure to violence, deprivation, and family disintegration, and that these factors contributed to his methamphetamine addiction and subsequent offending. The legal issues were whether the sentencing Judge erred by not extending credit for the cultural report and if there was a sufficient causal connection between Mr van Boven's background and his offending to warrant such credit.

The High Court found that while Mr van Boven experienced a disadvantaged early life involving violence, deprivation, and family disintegration, the Judge declined to extend credit primarily because Mr van Boven had managed to lead a stable life and remain offence-free for nearly 10 years. However, the Court held that there remained some nexus between Mr van Boven's extremely difficult upbringing and his drug difficulties and most, but not all, of his offending. Credit in the order of three months, or approximately 15 per cent, would have been appropriate to reflect the linkage between this personal background, his methamphetamine habit, and the dishonesty offending. The appeal was allowed to permit this adjustment to be made.

The sentence of imprisonment of 18 months and 14 days in respect of the receiving charges was quashed, and in its place, a sentence of 15 months and 14 days was imposed. All other sentences, including the cumulative sentence of eight months’ imprisonment and the order to pay reparation, remain unaffected.

Orders