Van Wyk v Police - [2018] NZHC 2853

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-289

CRI-2018-404-290 [2018] NZHC 2853

BETWEEN
HENDRIK VAN WYK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 October 2018

Counsel:

H Kim for Appellant

M Mortimer for Respondent

Judgment:

5 November 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 5 November 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

VAN WYK v POLICE [2018] NZHC 2853 [5 November 2018]

Introduction

[1] Mr Hendrik van Wyk pleaded guilty to five charges of burglary, possession of ammunition, possession of methamphetamine, breach of community work and breach of supervision. He was sentenced to nine months’ home detention on all the charges. He now appeals that sentence as manifestly excessive.

Background facts

[2] On 28 December 2017, Mr van Wyk entered an address without authority and removed two air conditioning systems from a house under construction. He also removed an intercom unit and a showerhead. All items were brand new and still in their packaging. The next day, the police searched his home. While searching his vehicle, methamphetamine was found on the driver’s seat of his car. A search of the rear of the vehicle also revealed .22 calibre bullets and magazines. When questioned, Mr van Wyk admitted that he had stolen the air conditioning units. He also admitted that the methamphetamine was his.

[3] Mr van Wyk had previously been sentenced to 12 months’ supervision and 150 hours community work for theft-related offending. His reporting for his sentence of community work was sporadic and he completed only 26.5 hours in time. Finally, on 19 June 2018, he failed to report as required for his sentence of supervision, having previously received written and verbal warnings.

District Court judgment

[4] Judge Sinclair identified a starting point of between 18 months and two and a half years for the burglary.1 Having identified the risk of confrontation was “probably reduced a little”, given that the house was still under construction, the Judge adopted an 18-month starting point.2 The Judge applied an uplift of six months for the remaining charges, noting that they are “separate and discrete offending”.3 She also

1 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.
2 New Zealand Police v van Wyk [2018] NZDC 17904 at [10].
3 At [11].

considered that the failure to complete the previous sentences reflects a laissez faire attitude towards Court orders and sentencing.4

[5] In terms of mitigating factors, the Judge refers to a heartfelt letter to the Court advising her of Mr van Wyk’s methamphetamine addiction and the impact that it has had. She notes that he has participated in a rehabilitative programme but that the rehabilitation steps have fallen by the wayside.

[6]The Judge then notes:

[14] From what I have read, it seems to me that you have a journey to complete. It is a long…

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.

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Details

Case: [2018] NZHC 2853
Decision Date: 5 November 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Hendrik van Wyk appealed against his sentence of nine months’ home detention imposed by the District Court. The appeal was based on the grounds that the sentence was manifestly excessive. The sentencing was for five charges, including burglary, possession of ammunition, possession of methamphetamine, breach of community work and breach of supervision. The District Court judge had imposed the sentence after considering the seriousness of the offending, the appellant's personal circumstances and his rehabilitation efforts.

The legal issues before the court were whether there were any factual errors in the District Court's assessment, whether the uplift of six months was excessive, and whether the sentence was manifestly excessive. The court considered the arguments presented by both parties and reviewed the evidence provided. The court found that there were no factual errors in the District Court's assessment and that the uplift of six months was arguably excessive. However, the court also considered other factors, such as the offending occurring while still serving sentence and the methamphetamine offending being distinct offending. The court found that the overall end sentence was not manifestly excessive, as the judge had taken great care to tailor the sentence to the appellant's personal circumstances, acknowledging the importance of abstention from methamphetamine consumption, in combination with his rehabilitation.

The court dismissed the appeal, finding that the sentence of nine months home detention for the burglary offending, together with a concurrent term of three months home detention on the remaining charges, was not manifestly excessive. The court noted that the presence of depression, if anything, provided a further basis for avoiding a sentence which sets the appellant up for failure, namely community service. The court also noted that while community detention was also an option which was available to the judge, given the seriousness of the appellant's offending and his methamphetamine addiction, a sentence of home detention was not inappropriate.

Orders