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)

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.
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.
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].

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.
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…

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 Niekerken v The Queen

Details

AGLC: Van Niekerken v The Queen [2013] NZCA 596
Case: [2013] NZCA 596
Decision Date: 28 November 2013 at 3:30 pm

CaseChat Overview and Summary

Herre Van Niekerken appeals against his sentence for two charges: one of supplying methamphetamine and another of conspiracy to supply, to which he pleaded guilty. The sentence was nine years and six months imprisonment, which Van Niekerken argues is excessive. The appeal was heard by Randerson, Heath and Asher JJ and was dismissed. The central legal issue was whether the starting point for the sentence was too high and whether the discounts applied were appropriate. The Crown argued that the starting point of 12 years and three months was appropriate, given Van Niekerken's role as a senior member in the methamphetamine conspiracy. The Court of Appeal agreed that the starting point was appropriate, considering the evidence presented. The Court also found that the discounts applied, including for the guilty plea, were appropriate, and the overall sentence was not manifestly excessive. The appeal was dismissed, and the sentence upheld.

Orders