Van Niekerken v The Queen

[2013] NZCA 596

IN THE COURT OF APPEAL OF NEW ZEALAND

CA145/2013
[2013] NZCA 596

BETWEEN	HERRE VAN NIEKERKEN Appellant
AND	THE QUEEN Respondent

Hearing:	18 November 2013
Court:	Randerson, Heath and Asher JJ
Counsel:	E A Hall for Appellant J E Mildenhall for Respondent
Judgment:	28 November 2013 at 3:30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

1. Herre Van Niekerken pleaded guilty to two counts, one a representative charge of supplying methamphetamine and the other a count of conspiracy to supply. He was sentenced on 19 December 2012 by Ronald Young J to an end sentence of nine years and six months imprisonment,[1] and appeals that sentence.

   [1]R v Van Niekerken [2012] NZHC 3546.

2. Mr Van Niekerken and a number of other offenders were apprehended as a result of a police investigation known as Operation Stamp which was an electronic surveillance exercise.  The intercepted communications revealed a substantial methamphetamine network, sourcing precursor materials from suppliers, manufacturing methamphetamine and distributing it at street level.

3. The total period of the conspiracy was five months.  The supply counts related to two occasions in November and December 2010, when 840 grams and 420 grams were supplied.  Mr Van Niekerken was a party to the supply.  There were also four other occasions of supply by Mr Van Niekerken of lesser amounts involving a total of 31.4 grams.  The overall amount of methamphetamine involved in the supply counts was therefore over one kilogram.  A full summary of the facts is available from the sentencing notes.[2]  The Judge observed:[3]

   I accept the Crown’s position to this extent that the evidence does clearly establish that you were in a very important position in this gang[.]  Whether it’s the number two person or not of course is a matter of definition.  Your sentencing must reflect the fact that you were a senior member of this gang.  I accept that there is properly a distinction made between yourself and Mr Matthews to reflect your different roles but the evidence I have seen does put you at a higher level than Mr Busch.

The starting point

[2]At [2]–[7].

[3]At [11].

1. Ronald Young J took the supply count as the lead charge and fixed a starting point of 12 years and three months imprisonment.  Ms Hall for the appellant submitted that this was too high.  She submitted that the Judge erred in placing Mr Van Niekerken’s role above that of Mr Busch and close to the top of the organisation. 

2. The Judge had sentenced Mr Matthews, the principal offender, to a sentence where the starting point was 15 years imprisonment.[4]  A Mr Busch had been sentenced in the District Court to a sentence where the starting point was 11 and a half years imprisonment.  Ronald Young J had also sentenced another offender Mr Edwards, who was a manufacturer of 1.2 to 1.6 kilograms of methamphetamine to a sentence where the starting point he fixed was 13 years imprisonment.[5]

   [4]R v Matthews [2012] NZHC 3545.

   [5]R v Edwards [2012] NZHC 2959.

3. There were before Ronald Young J detailed recorded exchanges between the various conspirators.  Some indicated that Mr Van Niekerken was giving directions to Mr Busch and meeting Mr Matthews without Mr Busch. 

4. Given that Mr Van Niekerken was involved at a senior level in supplying large commercial quantities involving approximately 1,290 grams of methamphetamine, the offending fell clearly within band four of R v Fatu.[6]  There was also the need to reflect some culpability for the conspiracy count.  It was entirely open to the Judge to conclude on the material before him that the appellant’s culpability warranted a starting point a little above that of Mr Busch, but well below that of Mr Matthews, of 12 years and three months imprisonment.  This was also below the starting point for Mr Edwards.  The Judge accepted that Mr Van Niekerken was not involved in manufacturing.  We can see no basis for interfering with the starting point.  

The discounts

[6]R v Fatu [2006] 2 NZLR 72 (CA).

1. Ms Hall argued for a greater percentage discount for the guilty plea for the supply charge than the 20 per cent allowed.  The appellant, although he pleaded guilty to the conspiracy charge at an early stage, did not plead guilty to the supply charge until August 2012 seven weeks before the trial was due to commence, and the 20 per cent discount was, if anything, generous.  So too was a further three per cent discount given because the purity of the methamphetamine had been assessed at 55 per cent.  A similar discount for purity was applied in sentencing some of the other co-offenders.

2. A further submission that Mr Van Niekerken was entitled to a further discount because he chose to withdraw from the illegal enterprise prior to its termination by the Police has no merit.  Any withdrawal by Mr Van Niekerken was after the period of offending specified in the indictment, and there is nothing to indicate that his motive was anything other than fear of apprehension.

3. The Judge did not give a discount for remorse.  We have reviewed the material provided to the Judge in this regard which included a detailed and helpful pre-sentence report and a number of letters from supporters of Mr Van Niekerken, and a letter from him.  Mr Van Niekerken tended to downplay his involvement.  We have concluded that there was no insight or regret to a level that required a discount for remorse. 

4. Ms Hall raised the fact that some chattels belonging to Mr Van Niekerken were forfeited as a consequence of the sentencing process, but the Judge took this into account.  She also mentioned the one month Mr Van Niekerken had spent on EM bail, but this did not require recognition by a discount.  Further, there were prior convictions which precluded a discount for good character.  

Conclusion

1. The sentencing Judge, having sentenced the main offender and another person involved in the operation, and having before him a large quantity of material relating to the exchanges between the defendants, was familiar with all the circumstances of the offending.  He made no errors in his assessment.  We are satisfied that the starting point was consistent with the guidelines set out in Fatu.  The Judge’s assessment of the nature and scale of the offending, and Mr Van Niekerken’s prominent role, was accurate.  The discounts seem to us to be appropriate, and the nine and a half year sentence of imprisonment was not manifestly excessive.

Result

1. The appeal is dismissed.

Solicitors:
Crown Law, Wellington for Respondent