Vant Leven v R - [2014] NZCA 330

IN THE COURT OF APPEAL OF NEW ZEALAND

CA858/2013
[2014] NZCA 330

BETWEEN	PHILLIP JOHN VANT LEVEN Appellant
AND	THE QUEEN Respondent

Hearing:	10 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	H S Edward for Appellant M D Downs for Respondent
Judgment:	16 July 2014 at 2.30 pm

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

It is Judge Weir’s sentencing starting point of seven years imprisonment that is primarily challenged on this appeal against sentence.[1] For the appellant, Mr Edward submitted the starting point ought to have been three years imprisonment.

The offending and charges

[1]R v Vant Leven DC Rotorua CRI-2010-063-6250, 29 November 2013.

Mr Vant Leven’s offending occurred in three episodes at different times and in different places over two and a half years.

Episode One

In October 2009 the police executed a search warrant at an industrial building owned by Mr Vant Leven. In “shed 2”, the part of the building used by Mr Vant Leven, the police found precursor substances and equipment consistent with the manufacture of methamphetamine, plus a “recipe” for manufacturing methamphetamine written out by Mr Vant Leven. Swabs taken from the walls tested positive for methamphetamine, although that was consistent with either manufacture or smoking. Shed 2 was protected by a functioning closed circuit television system.
For this Episode One offending, Mr Vant Leven was convicted after trial of possessing precursor substances and equipment with the intention of using them in the manufacture of methamphetamine (counts 1 and 2 in the indictment). He was acquitted of some other charges.

Episode Two

In July 2010 the police located what Judge Weir described as “a complete mobile clandestine laboratory intended for the use of manufacturing methamphetamine”.[2] This laboratory was in the back seat of a stolen green Dodge car parked in the garage of a different property. This green car, though minus the clandestine laboratory, had been in shed 2 when the police executed the search warrant that uncovered the Episode One offending. Mr Vant Leven’s fingerprints were on all the relevant “laboratory” items.
[2]At [23].
In respect of this Episode Two offending, Mr Vant Leven was convicted of possessing equipment with requisite intent (count 5) and acquitted of a further charge.

Episode Three

Almost two years later, in May 2012, the police executed a search warrant at Mr Vant Leven’s home. Inside they found five batches of pseudoephedrine, four in solution form, the fifth in powder form. Also seized were sodium hydroxide, hydrochloric acid, toluene, acetone and other materials used in the production of pseudoephedrine. Mr Vant Leven told the police he had been paid $6,000 to manufacture pseudoephedrine, which someone else would use to make 20 grams of methamphetamine. He declined to name any of these other people. At the time Mr Vant Leven was on bail awaiting trial on the Episodes One and Two charges.
For this third episode of offending the appellant…

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 Vant Leven v R

Details

AGLC: Vant Leven v R [2014] NZCA 330
Case: [2014] NZCA 330
Decision Date: 16 July 2014 at 2.30 pm

CaseChat Overview and Summary

Phillip John Vant Leven appealed against his sentence imposed by Judge Weir in the Rotorua District Court, arguing that the starting point of seven years imprisonment was too high and should have been three years. The New Zealand Court of Appeal, consisting of Wild, Ronald Young and Cooper JJ, heard the appeal on 10 July 2014. The appellant's counsel, H S Edward, submitted that the Judge should have imposed a sentence on the lead offence and then concurrent sentences for the other offences, relying on section 84(2) of the Sentencing Act 2002. The respondent's counsel, M D Downs, argued that the Judge's sentencing approach was correct. The court delivered its judgment on 16 July 2014, dismissing the appeal and upholding the original sentence.

The legal issues the court was required to decide included whether the Judge erred in taking a cumulative sentences approach, instead of imposing a sentence on the lead offence and then concurrent sentences for the other offences. The court also needed to consider whether the 50 per cent reduction in the end sentence of imprisonment, which reflected the instrument forfeiture order made in respect of the properties used in the Episode One and Episode Three offending, should have been made from an end sentence of three years imprisonment. The court further needed to examine whether the appellant's inability to embark on any drug treatment programmes during his time in prison on remand should have impacted the length of his sentence.

The court held that there was no error in the Judge's sentencing approach, and endorsed it as correct for the reasons the Judge gave. The court found that the challenge to the Judge's sentencing starting point of seven years imprisonment was devoid of merit. The court also found that the 50 per cent reduction in the end sentence of imprisonment was reasonable and that the appellant's inability to embark on any drug treatment programmes during his time in prison on remand did not warrant a reduction in his sentence.

The appeal was dismissed, and the original sentence imposed by Judge Weir was upheld.

Orders