Van de Ven v R
[2014] NZCA 265
•25 June 2014 at 10:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA645/2013 [2014] NZCA 265 |
| BETWEEN | WAYNE PETER VAN DE VEN |
| AND | THE QUEEN |
| Hearing: | 9 June 2014 |
Court: | Randerson, Keane & MacKenzie JJ |
Counsel: | P J Kaye for Appellant |
Judgment: | 25 June 2014 at 10:00 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
On 26 March 2013, after his trial in the High Court, Wayne Van de Ven was sentenced by Woolford J to imprisonment for 17 years, and a minimum term of eight and a half years, on 10 counts of manufacturing methamphetamine between 4 January–9 April 2010.[1]
[1]R v Van de Ven HC Auckland CRI-2010-055-1742, 26 March 2013.
Mr Van de Ven was also sentenced concurrently to imprisonment for:
(a)two years on one count of attempted manufacture;
(b)five years, six months on 35 supply counts;
(c)two years on one conspiracy to supply count; and
(d)10 months on two counts of possessing firearms.
Woolford J held Mr Van de Ven accountable for initiating and controlling each manufacture; for manufacturing constantly over four months; for manufacturing not less than 800 grams of methamphetamine; and for having initiated and controlled the ensuing sales.
Mr Van de Ven appeals his lead sentence. The Judge, he contends, overstated the quantity manufactured; took too high a starting point of 15 years (it ought not to have exceeded 13–14 years); and imposed two excessive uplifts: six months for the firearms offences, and 18 months for the supply offences. He submits that his lead sentence ought not to have exceeded 15 years.
Mr Van de Ven does not contest his concurrent sentences but submits that the six month uplift for the firearms offences is manifestly excessive for offending which justified only a 10 month standalone sentence. He does not challenge the MPI the Judge imposed. But, if he succeeds on this appeal, that will reduce proportionately.
Mr Van de Ven’s notice of appeal was filed five months out of time and he requires leave to appeal. As to that the Crown raises no issue. We grant leave and will resolve his appeal on its merit.
Operation Hype
In September 2009 the police learned that Mr Van de Ven and associates of his were manufacturing and selling methamphetamine from his Papakura address. In October 2009, the police began Operation Hype in order to target Mr Van den Ven and identify his associates.
On 12 November 2009 the police set up a covert camera near the entrance to Mr Van de Ven’s property. Between 12 November 2009–25 March 2010, the police recorded 3595 visits to Mr Van de Ven’s address, an average of over 26 each day. Of those more than a third lasted for less than five minutes.
On 11 December 2009 the police obtained a warrant to intercept Mr Van de Ven’s telephone calls and text messages and between January–April 2010 obtained further warrants extending to three of his four closest associates. Between December 2009–April 2010, 1764 of Mr Van de Ven’s intercepted telephone calls or text messages concerned drugs.
On the basis of these intercepted calls and text messages and the covert camera footage, the police concluded that Mr Van de Ven was at the centre of a very active manufacturing and supply ring, which he had organised and controlled.
On 16 April 2010 the police searched under warrant the Hunua address of one of Mr Van de Ven’s associates, who also manufactured there. Mr Van de Ven was present, as was another close associate of his. The police found chemicals and items consistent with manufacture and arrested and charged all three.
That day the police also searched under warrant Mr Van de Ven’s Papakura address and there too found items consistent with manufacture. The police also found a .22 pen gun, a stun gun, ammunition for both weapons, $8,950 cash, and 54 grams of methamphetamine.
Excessive starting point
On sentence there was no issue that as the primary offender responsible for a very large commercial manufacture (500 grams or more), Mr Van de Ven lay within band four as set out in R v Fatu and was to be sentenced from a starting point in the range of 13 years life imprisonment.[2] The issue was where in that range he lay.
[2]R v Fatu [2006] 2 NZLR 72 (CA) at [43].
The Crown contended for a starting point of 15 years and six months, on the basis that Mr Van de Ven was the primary offender and that the quantity he was responsible for manufacturing lay in the range of 793–1099 grams. Mr Van de Ven did not dispute his role or that range (in contrast to some of his co-offenders). Mr Kaye, Mr Van de Ven’s counsel, contended that a 15 year starting point was more consistent with authority.
The Judge held Mr Van de Ven primarily accountable for both the manufacturing and supply offences and, as to the former, accepted the Crown’s proposed yield range “in a broad way”.[3] However, he took a 15 year starting point, holding Mr Van de Ven responsible for manufacturing a “very substantial amount” of methamphetamine, at least 800 grams.[4]
[3]At [2].
[4]At [30(c)].
With the advantage of retrospect, Mr Kaye submits on this appeal that the 800 gram estimate still stands too high. Two of the manufacturing counts did not identify a yield. Of the eight that did, only one alleged a definite yield, one ounce. The other seven each alleged a yield obtained from one “set” of tablets containing 90 grams of pseudoephedrine.
As to those seven counts Mr Kaye contends the Crown’s lower range estimate assumed a 50 per cent yield from each “set”, 45 grams of methamphetamine. Its higher estimate assumed a 75 per cent yield, 67.5 grams of methamphetamine. That higher yield, he contends, was unrealistic in a clandestine laboratory. Only the lower yield could be safely assumed.
Even taking that higher yield, however, Mr Kaye contends, the total yield for the seven offences would only have been 472.5 grams; and even when the eighth count one ounce is added (28.35 grams), the final yield would still only have been 500.5 grams. To contend for a yield in the range 793–1099 grams, the Crown had to rely on the two remaining counts with the unspecified yields.
As to those counts, the Crown asserted a yield from five “sets” lying between 225–315 grams. But yields of that order, Mr Kaye contends, had to be improbable. They were more than double those for the counts with specified yields. Thus, he contends, the highest yield Mr Van de Ven could be held accountable for was the Crown’s lower total estimate, 793 grams.
Furthermore, Mr Kaye contends, the Judge did not identify the total quantity manufactured for which Mr Van de Ven was to be held accountable. The Judge may have said that it was at least 800 grams. Ultimately, he said that it was “very substantial”.[5] Mr Kaye submits that is not enough. Fatu describes the quantity manufactured as the most helpful measure of culpability.[6]
[5]At [30(c)].
[6]At [26].
Finally, Mr Kaye contends the majority of cases referred to by the Judge involved significantly higher volumes than those involved here.[7] Against that background, he contends the Judge ought to have taken no higher a starting point than 13–14 years.
Starting point proportionate
[7]Fatu, above n 2; R v Arthars HC Whangarei CRI-2005-011-238, 26 October 2006; R v Webb HC Auckland CRI-2006-044-1401, 17 June 2008; R v Beckham HC Auckland CRI-2008-404-029112, 12 August 2011; R v Huang HC Auckland CRI-2006-019-8458, 8 May 2009; R v Gollop HC Auckland CRI-2006-092-16424, 13 February 2009.
There are two reasons why this submission does not assist Mr Van de Ven, and the first reason is that the Judge was not indefinite as to the quantity manufactured. The least quantity manufactured, he held, was 800 grams. That is what he was referring to when he spoke of a “very substantial amount”.[8]
[8]At [30(c)].
The second reason is related. The Judge’s 800 gram estimate equates with the Crown’s estimate, 793 grams, which on this appeal Mr Kaye contends was the greatest quantity the Judge could assume for the purpose of sentence. In short, the Judge sentenced from an undisputed quantity.
In fixing the starting point within band four as set out in Fatu, the Judge had to take into account the attempted manufacture at the Hunua address, and to sentence Mr Van de Ven as the primary offender in an intensive, nearly continuous, process of manufacture at the Papakura address over four months. He was correct to set the starting point towards the middle of the band.
This conclusion is reinforced by the recent judgment of this Court in Gilfedder v R, where a secondary party was sentenced for the manufacture of 495–693 grams of methamphetamine from an 11 year starting point.[9] On appeal this Court held that his “involvement in three episodes of manufacturing methamphetamine that yielded at least 495 grams could have attracted starting points closer to 15 than 10 years”.
Uplift for firearms
[9]Gilfedder v R [2013] NZCA 426 at [121].
The Judge was equally justified in uplifting Mr Van de Ven’s sentence by six months for the two firearms offences and in sentencing him concurrently for those offences to 10 months imprisonment.
The pen gun and the stun gun were not merely close-range defensive weapons, as Mr Van de Ven contends. He had them at the scene of manufacture and both were capable of offensive use; of causing pain, injury, and in the case of the pen gun, which fires .22 rounds, even death.
Furthermore as the Judge said, Mr Van de Ven has three previous convictions for possessing firearms, the last in 2005, and they were not to be ignored.
Uplift for supply
Finally, when the Judge imposed the 18 month uplift for the supply offences, he did not double-count, or give excessive weight to their number and insufficient weight to the fact that each involved less than three grams.
While this Court recognised in Fatu that the purpose of manufacture is almost invariably commercial,[10] and that is taken into account in the maximum penalty and sentencing bands, as this Court also said in Baird v R, “A manufacturer who is not involved in supplying the methamphetamine produced would not be subject to the uplift for the activities of those distributing it”. [11]
[10]Fatu, above n 2, at [42].
[11]Baird v R [2012] NZCA 430 at [59].
A three gram supply is a serious offence in itself. Thirty five such offences constitute serious offending that had to be marked in a real way in the lead sentence imposed.
Result
Mr Van de Ven’s lead sentence is proportionate to his offending in each constituent element challenged on this appeal, and in totality. We grant Mr Van de Ven leave to appeal that sentence out of time, but we dismiss his appeal.
Solicitors:
Crown Law Office, Wellington for Respondent
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