Van de Ven v R - [2014] NZCA 265

IN THE COURT OF APPEAL OF NEW ZEALAND

CA645/2013
[2014] NZCA 265

BETWEEN	WAYNE PETER VAN DE VEN Appellant
AND	THE QUEEN Respondent

Hearing:	9 June 2014
Court:	Randerson, Keane & MacKenzie JJ
Counsel:	P J Kaye for Appellant S K Barr for Respondent
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.

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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…

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 de Ven v R

Details

AGLC: Van de Ven v R [2014] NZCA 265
Case: [2014] NZCA 265
Decision Date: 25 June 2014 at 10:00 am

CaseChat Overview and Summary

Wayne Peter Van de Ven appealed his sentence for methamphetamine manufacturing and other related offences. The primary appeal point was against the severity of the 17-year imprisonment sentence, with a minimum term of eight and a half years, which he received for manufacturing methamphetamine. Van de Ven argued that the quantity of methamphetamine manufactured was overstated, the starting point for sentencing was too high, and the uplifts for firearms and supply offences were excessive. The Crown did not contest the late filing of the appeal notice, and the Court of Appeal granted leave for the appeal to proceed.

The court examined the legal issues surrounding the starting point for sentencing, the quantum of methamphetamine manufactured, and the appropriateness of the uplifts for firearms and supply offences. Regarding the starting point, the court found that the Judge's 800-gram estimate of methamphetamine manufactured was reasonable and supported by the evidence. The court also held that the Judge's decision to set the starting point at 15 years was justified, considering Van de Ven's role as the primary offender in an intensive, continuous manufacturing process. The court found the six-month uplift for the firearms offences and the 18-month uplift for the supply offences to be proportionate to the severity of the crimes.

The Court of Appeal dismissed Van de Ven's appeal against his sentence. The court held that the starting point for sentencing was proportionate to Van de Ven's offending, and the uplifts for firearms and supply offences were also appropriate. The court granted Van de Ven leave to appeal out of time but dismissed the appeal on its merits. The final orders were that the application for an extension of time to appeal was granted, and the appeal against sentence was dismissed.

Orders