Van Wakeren v R - [2011] NZCA 503

IN THE COURT OF APPEAL OF NEW ZEALAND

CA58/2008
CA716/2009
CA398/2010
[2011] NZCA 503

BETWEEN RONALD VAN WAKEREN
Appellant

AND THE QUEEN
Respondent

Hearing: 30 August 2011

Court: Stevens, Ronald Young and Venning JJ

Counsel: G C Gotlieb and J D Pennick for Appellant
D A Bell and B D Tantrum for Respondent

Judgment: 3 October 2011 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal against conviction on the two money laundering counts is allowed. The convictions are quashed.
BThe appeal against the total sentence of 13 years and three months imprisonment is allowed. We impose instead a total sentence of 12 years and three months imprisonment as follows:
(i)the sentence of six years imprisonment relating to the burglary of the National Army Museum is quashed and instead a sentence of five years imprisonment is imposed;
(ii)all other sentences are confirmed including their cumulative and concurrent effect.

CThe minimum period of imprisonment of seven years imprisonment is quashed.
DWe impose a total minimum period of imprisonment of six years imprisonment in the following way:
(i)a minimum period of imprisonment of three years and four months in relation to the five year sentence of imprisonment on the charge of burglary with respect to the National Army Museum, cumulative on;
(ii)a minimum period of imprisonment of two years and eight months imprisonment with respect to the four year sentence of imprisonment on the Operation Kea and Operation Prince (Part 1) charges.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

Arising from his convictions for over 70 offences committed between 2003 and 2007, Mr Van Wakeren was sentenced to a total of 13 years and three months imprisonment. On 1 February 2008 Judge Gittos sentenced the appellant to two years and three months imprisonment[1] and on 22 October 2009 Judge Hubble sentenced the appellant to a cumulative 11 years imprisonment.[2] He appeals against conviction on the two money laundering counts, which the Crown concedes. Otherwise, he says, some sentences which make up his total sentence are individually manifestly excessive and that the overall sentence failed properly to take into account the totality principle and, therefore, is manifestly excessive. Finally, he says that Judge Hubble in the District Court did not have jurisdiction to impose a minimum period of imprisonment (MPI) of seven years.
[1] NZ Police v Van Wakeren DC Auckland CRI‑2004‑004‑21409, 1 February 2008.
[2] R v Van Wakeren DC Auckland CRI‑2006‑114‑9486, 22 October 2009.
The Crown response to the sentence appeal is:
(a)with respect to the charge of burglary relating to the theft of medals from the National Army Museum at Waiouru there is justification for a further deduction from the appellant’s start sentence;
(b)they accept that the Judge could not have imposed a minimum period of imprisonment of seven years but seek that alternative appropriate minimum periods of imprisonment be imposed on individual sentences which are cumulative;
(c)otherwise they oppose the sentence appeals.

Conviction appeal

Mr Marsh, Mr Kapa and the appellant were co‑accused and originally…

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 Wakeren v R

Details

AGLC: Van Wakeren v R [2011] NZCA 503
Case: [2011] NZCA 503
Decision Date: 3 October 2011

CaseChat Overview and Summary

Ronald van Wakeren appealed his conviction and sentence following a series of frauds and burglaries that occurred between 2003 and 2007. He was convicted on over 70 charges and sentenced to a total of 13 years and 3 months imprisonment. Van Wakeren appealed his conviction on two money laundering counts, the sentence for the burglary of the National Army Museum, and the overall sentence. He also appealed the minimum period of imprisonment imposed on him.

The court allowed the appeal against the money laundering convictions and quashed them. The court found that there was insufficient evidence to show that the purpose of the bank deposits was to conceal the proceeds of crime. The court also allowed the appeal against the sentence for the burglary of the National Army Museum and reduced it from 6 years to 5 years. The court found that the starting point for the sentence was correctly set at 9 years but that a greater discount should have been given for mitigating factors such as the appellant's early guilty plea and remorse. The court reduced the overall sentence from 13 years and 3 months to 12 years and 3 months imprisonment.

Finally, the court quashed the minimum period of imprisonment of 7 years and imposed a total minimum period of imprisonment of 6 years. The court found that the minimum period of imprisonment should be imposed with respect to the sentences on Operation Valour and Operation Kea and Prince (Part 1), giving a total cumulative non-parole period of six years imprisonment.

Orders