IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-055-001742 [2013] NZHC 593

THE QUEEN

v

WAYNE PETER VAN DE VEN

Hearing:	26 March 2013

Appearances: B Finn for the Crown
P Kaye for the Prisoner

Judgment:	26 March 2013

SENTENCING NOTES OF WOOLFORD J

Solicitors/Counsel:

Crown Solicitor (W Cathcart and B Finn), Auckland. Mr P Kaye, Barrister, Auckland.

R V VAN DE VEN HC AK CRI-2010-055-001742 [26 March 2013]

[1]       Mr Van de Ven, on 19 June 2012, you were found guilty by a jury in this Court  following  a  lengthy  defended  trial.     The  jury  found  you  guilty  of  a considerable  number  of  offences  relating  to  the  drug  methamphetamine.     In
summary, they returned guilty verdicts in respect of:

Number of offences

Charge	Section	Maximum
Penalty

Relevant details

351	Supplying a class A controlled drug, namely Methamphetamine

82	Manufacturing a Class A controlled drug, namely Methamphetamine

13	Conspiring to supply a class A controlled drug, namely Methamphetamine

14	Attempting to manufacture a class A controlled drug, namely Methamphetamine

25	Possession of a pistol or restricted weapon without some lawful, proper and sufficient purpose

s 6(1)(c) & (2)(a) Misuse of Drugs Act 1975

s 6(1)(b) & (2)(a) Misuse of Drugs Act 1975

s 6(2A)(a) Misuse of
Drugs Act 1975

s 6(1)(b) Misuse of Drugs Act
1975 and ss 72
& 311(1) Crimes Act
1961

s 45 Arms Act
1983

Life imprisonment

Life imprisonment

14 years’
imprisonment

10 years’
imprisonment

4 years’ imprisonment or a fine not exceeding
$5,000

Approximately
100 g in total

Between 793 g and 1,099 g in total

2 g

N/A

A pen gun and a stun gen found at your home.

Facts

[2]	Mr Van de Ven, the facts on which I am sentencing you today come from the evidence put before the Court during the trial which is consistent with the jury’s
verdict.  I accept, in a broad way, the levels of methamphetamine suggested by the

1	Counts 1, 3, 5, 9, 11, 13, 16, 18, 20, 22, 24, 26, 30, 32, 34, 36, 45, 47, 48, 50, 52, 54, 56, 59, 61,
64, 66, 70, 71, 74, 75, 77, 80, 82 and 84 of the indictment.
2	Counts 7, 15, 28, 41, 42, 58, 63, 68, 73 and 79 of the indictment.
3	Count 8 of the indictment.
4	Count 86 of the indictment.
5	Counts 89 and 90 of the indictment.

Crown in that your offending is clearly at the more serious end of the range this

Court would normally see.

[3]       Briefly, you were the leading figure in a large scale criminal enterprise whose purpose was  to  manufacture and  distribute methamphetamine.    It  would  not  be exaggerating to say you were the head of this operation in that you arranged the supply and acquisition of precursor and chemical substances necessary for manufacture, supervised, organised or manufactured methamphetamine,  and sold methamphetamine to a number of people who on-sold it to others. You had access to significant amounts of cash in order to purchase the necessary materials, received money from those that on-sold the methamphetamine and were in frequent contact with a wide group of associates whom you involved in the operation in order to co- ordinate its functions.

[4]       All of this was captured by a Police investigation targeting your operation, known as Operation Hype, which lasted from January to April 2010. All the charges relate to that period.  A number of other persons caught by the Police operation have already been sentenced.  They include all of those with whom you stood trial.6

Forfeiture proceedings

[5]       I also heard an application, made by the Crown, for the forfeiture of the home in which you were living, and which was at the centre of your dealings, on the grounds that it was an instrument of crime.  I am required to recognise the loss of any interest in property as a factor in sentencing you.7

[6]       The key issue in the forfeiture application was the fact that the property was mortgaged to Mr Godefridus Van de Ven, your father, who had bought it and allowed you to live in it on the condition that you repaid him the mortgage.  I heard evidence
in December last year as to whether you were in effective control of the property,

6	R v Lorigan [2012] NZHC 2249; and R v CG [2012] NZHC 2475. For other persons sentenced in relation to Operation Hype see: R v Lorigan at Appendix 1.
7	Sentencing Act 2002, s 10B.

whether you had repaid the mortgage and whether your father still had an interest in the property.

[7]       The outcome of the forfeiture proceedings was that I determined not to make an order for the property’s forfeiture, so it is not a factor that I need to take into account in sentencing you.

Personal circumstances

[8]       Mr Van de Ven, you are now in your early 50’s and you seem to have spent the majority of your life living in and around Auckland.  Prior to your involvement in this offending and your arrest, you were residing in Papakura and on a sickness benefit, although you seem to have a certain degree of mechanical aptitude and an interest in motor cycles.

[9]       As far as family are concerned, you have your elderly parents, your brothers and a daughter living in Auckland.  They have conveyed some of their feelings as to the difficulties your offending has caused them in their affidavits in the forfeiture application.

Prior Convictions

[10]     You have a fairly lengthy list of previous convictions stretching back to 1977. Most of them are relatively minor and I highlight only those that are of a more serious nature or relevant to the offending in this case.   There are convictions for firearms offences from 2005, 1997 and 1983.  There are also your convictions for minor cannabis offending from 2005, 2004, 1992, 1988, 1987 and 1984.  You have been sentenced to short periods of imprisonment in 2010, 1999, 1997, 1992, 1990 and 1983 for various sorts of offending.

Pre-Sentence Report

[11]     A Probation Officer has prepared a pre-sentence report on you which the

Department of Corrections has supplied to the Court.  Its contents suggest that you

still do not acknowledge the scale of your offending although you now admit to manufacturing methamphetamine, but only for your own use.   You have given no explanation of the considerable body of evidence showing large scale manufacture and supply.

[12]     You were yourself using methamphetamine regularly at the time of your offending as you said it helped you sleep.

[13]     You are assessed as being at medium to high risk of reoffending and the Probation Officer, quite realistically, only felt able to recommend a sentence of imprisonment.

Purposes and Principles of Sentencing

[14]     There are a number of purposes and principles that need to be taken into account in sentencing you for these offences.  They influence both my approach to your offending and to you personally.  There is a need to hold you accountable for the harm that has been caused to users of methamphetamine and to the community which, given the scale of the operation, will be considerable.  The sentence I impose upon you should also make it very clear, both to you and to others who might be tempted to manufacture and deal in methamphetamine, that there are very real and serious consequences for doing so.   One aim in sentencing you must also be to
protect the community from the consequences.8

[15]     The approach to sentencing must also be principled.  In that respect I need to consider both the type of crime you have committed and the seriousness of your offending when set alongside that of others.   In this case, where the offending is among the most serious of its type, I need to consider whether a sentence near to the maximum available would be appropriate.  Lastly, insomuch as there are factors in your personal background that are relevant, I need to consider what effect those
should have on your sentence.9

8	Sentencing Act 2002, s 7.
9	Sentencing Act 2002, s 8.

Submissions

Crown Submissions

[16]     In the Crown’s submissions, Mr Finn maintained that your manufacturing offending is clearly within band four of the relevant tariff case and the supply of methamphetamine is within band two of the supply guideline.  The Crown points to the central role you played in the offending, the sophistication and premeditation involved,  the  commerciality  and  duration  of  the  operation  and  the  presence  of
firearms as aggravating factors. The Crown cited a number of comparable cases.10

[17]     The   appropriate   starting   point,   in   Mr   Finn’s   submission,   for   the manufacturing is 15 years six months’ imprisonment.  When the other charges are factored into the equation, then the Crown’s suggested starting point rises to 17 years six months’ imprisonment.  As the Crown saw no personal mitigating factors in your case that would also be the end sentence.

[18]     The Crown, relying on certain authorities,11  also sought the imposition of a minimum period of imprisonment of one half of that sentence as necessary for the purposes of deterrence.

Offender’s Submissions

[19]     Mr Kaye, your counsel, accepted that the manufacturing offences, as the lead offences, fell within the upper band of the tariff.   He suggests that the starting point, looking at the cases, may be closer to 15 years’ imprisonment.  Mr Kaye notes your previous convictions, which he considers might attract some uplift and identifies no mitigating features in your personal background but asked the Court to bear in mind any  effect  of  forfeiture.     In  regard  to  the  appropriate  minimum  period  of
imprisonment, Mr Kaye accepted that this was a possibility in your case, although he

10	R v Gollop HC Auckland CRI-2006-092-16424, 13 February 2009;   R v Webb HC Auckland
CRI-2006-044-1404, 17 June 2008; and R v McQuade HC Auckland CRI-2006-019-8458, 10
September 2008.
11	R v Anslow CA182/05, 18 November 2005; and R v Aram [2007] NZCA 328.

submitted that given the sentence to be imposed, it should be left to the Parole Board to determine when you should be released.

Sentencing approach

[20]     Mr Van de Ven, there are a very large number of charges that you face.  For the purposes of this sentencing, I intend to adopt the manufacturing of methamphetamine charges as the lead or principal offending by reference to which I will sentence you.

[21]     The way in which I am going to determine the appropriate sentence for your offending is by first taking the offending in its context and considering the factors which show how serious it is.  That will give me the starting point at which point I will consider other factors relating to you personally which might add to or reduce that starting point.  That will give me the final sentence I impose on you for the lead
charges.12

[22]     I then need to consider what is to be done on the other charges which you face.

Tariff Case:

[23]     There  is  guidance  available  from  the  Court  of  Appeal  in  relation  to sentencing for the manufacture of methamphetamine.   In R v Fatu13 the Court highlighted the high level of culpability of manufacturers and set out a range of sentences that would apply to them.  The Court of Appeal set out a number of bands that will apply to those responsible for manufacturing methamphetamine:14

(a)	Band one – not applicable ...

12	R v Clifford [2011] NZCA 360; [2012] 1 NZLR 23.
13	R v Fatu [2006] 2 NZLR 72 (CA) at [22]-[23].
14	At [43].

(b)	Band two – manufacturing up to 250 grams – four years’ to 11 years’

imprisonment.

(c)	Band three – manufacturing large commercial quantities (250 grams to 500 g) – ten years’ to 15 years’ imprisonment.

(d)	Band   four   –   manufacturing   very   large   commercial   quantities

(500 grams or more) – 13 years’ to life imprisonment.

Relevant Cases

[24]     There are a number of comparable cases which also provide an indication of how seriously to treat your manufacturing of methamphetamine.

[25]     In R v Arthars,15 Mr Arthars was sentenced for two charges of manufacturing methamphetamine,  as  well  as  a  charge  each  of  possession  and  receiving.    The defence did not dispute the expert’s opinion that the quantity of methamphetamine likely to have been manufactured was within the kilogram range, and Mr Arthars admitted to about 40 “cooks” over the preceding year and a half, with 10 to 30 grams produced each time, resulting in around 400 grams to 1.2 kilograms.     Potter J adopted  a  starting  point  of  13  years’ imprisonment  for  the  lead  manufacturing charge.

[26]   In R v Webb,16  Mr Webb had manufactured around 1 kilogram of methamphetamine over a one year period from January 2005 to January 2006 and possibly as much as two kilograms.  Mr Webb’s personal consumption might have limited the amount available for supply and the commerciality of the offending somewhat but even if that were so Wylie J was still satisfied that large amounts had been manufactured in a repeated and persistent fashion.  The Judge saw a starting point of 14 years’ imprisonment as appropriate.

[27]     In R v Gollop,17  the principal manufacturer was  a Mr Rhodes.   He was responsible for large scale manufacture and supply including the production of approximately 1.5 kilograms of methamphetamine and was the “prime mover” in the syndicate in that case.   Winkelmann J noted that a starting point of 15-16 years’ imprisonment would have been appropriate on the manufacturing charges alone and it was then appropriate to uplift it for associated offending.18     The overall circumstances of the case, however, led the Judge to impose a sentence of life imprisonment. This decision was upheld on appeal.19

[28]     In R v Beckham,20 Mr Beckham had been responsible for manufacturing over a two year period and was found with very large amounts of cash and had been involved in a single transaction involving the supply of two kilograms of methamphetamine.  Mr Beckham was the primary player in his particular group and the evidence suggested very large amounts of methamphetamine had been involved. Andrews J adopted a starting point of 17 years’ imprisonment.

[29]     In R v Huang,21 two offenders were sentenced for their involvement in a large scale supply operation.   Both were deeply involved in the distribution operation. The amounts involved and the starting points adopted included:

(a)	5.4  kilograms  of  methamphetamine  warranted  a  starting  point  of

20 years’ imprisonment; and

(b)	Approximately two kilograms attracted a starting point of 17 years’

imprisonment.

17	R v Gollop HC Auckland CRI-2006-092-16424, 13 February 2009.
18	At [55].
19	R v Rhodes [2009] NZCA 486.
20	R v Beckham HC Auckland CRI 2008-404-029112, 12 August 2011.
21	R v Huang HC Auckland CRI 2006-019-8458, 8 May 2009.

Setting a Starting Point

[30]     The following factors seem important to me in attempting to set a starting point:

(a)       The duration of your offending as observed by Police, was only four months, and yet in that time, you demonstrated a high level of activity and engaged in a considerable number of instances of manufacturing.

(b)       You  were  the  head  of  this  manufacturing  operation  and  deeply involved in most aspects of it.  Both your level of culpability and the premeditation and organisation involved are indicators of its seriousness.

(c)       A very substantial amount of methamphetamine was manufactured and supplied to others.  Even if the figure for the methamphetamine produced  was  at  the  lower  end  of  the  suggested  range  (about
800 grams) it was a large amount of methamphetamine.

(d)       The presence of weapons which are closely connected to the drug offending is a recognised aggravating factor.22    In this case the two weapons  were  perhaps  at  the  lower  end  of  the  scale  in  terms  of arsenals  discovered  in   drugs  cases  but  they  do  require  some recognition whether they are regarded as an aggravating factor of the offence or as something attracting a discrete uplift is not material.23

[31]     This offending clearly falls within band four of the tariff and requires a starting point of in excess of 13 years’ imprisonment.   I am satisfied that I should adopt a starting point of 15 years’ imprisonment.  Given the presence of the weapons I would make the starting point one of 15 years six months’ imprisonment.

[32]     The two other principal sets of offending which you were found guilty of are charges of supplying methamphetamine and the illegal possession of restricted weapons.

[33]     The total amount of methamphetamine supplied was about 100 grams.  That level of supply would fall within band two of the Court of Appeal’s guideline for supply and, standing alone, would result in a starting point of between three and nine years’ imprisonment.24

[34]     A starting point of five to six years’ imprisonment would be appropriate on the supply charges.25   However, to impose such a sentence cumulatively would risk breaching the guidelines on the use of cumulative sentences and imposing a sentence out of proportion to the gravity of your offending.26    Some increase in the level of sentence imposed is, however, necessary to reflect the multiplicity of charges you were found guilty of.  In that respect, I would uplift the sentence to one of 17 years’ imprisonment.

Adjusting the starting point – previous convictions

[35]     The Crown did not seek an uplift to your sentence to reflect your previous convictions.   In my view an uplift may have been warranted, but in light of the Crowns approach, I will not impose a further uplift.

Adjusting the starting point - mitigating factors

[36]     There are no mitigating factors, in my view.   I am unable to reduce the sentence which would  otherwise be appropriate on account of any forfeiture of

24	R v Fatu at [34].
25	R v Nuttall [2012] NZHC 91; Hastings v R [2011] NZCA 105; and R v Whittington [2012] NZHC 2286.
26	Sentencing Act 2002, ss 84 & 85.

property in which you may have an interest because I declined to make any such order.27

Sentencing for the other offences

[37]     Given that I intend to sentence you to a long period of imprisonment on the lead charges, I will impose nominal concurrent sentences of two years’ imprisonment on each of the charges of attempting to manufacture methamphetamine and conspiring to supply methamphetamine.

[38]     The firearms charges have been dealt with above but on their own, assessing the aggravating factors,28 would have warranted a sentence of a year or less in each case.  I will impose concurrent sentences of 10 months’ imprisonment.

Minimum Period of Imprisonment

[39]     Normally  when  serving  a  sentence  of  imprisonment  you  would  become eligible to be considered for release on parole after one third of your sentence had elapsed.  That is by no means to say that you would then be released.  That would be a decision for the Parole Board to make.  The Court has power to increase that one third period up to a maximum of two thirds if necessary.

[40]     I am satisfied that drug offending of this magnitude does bring the relevant statutory rule into play and does require a minimum non-parole period.  The question is at what level that minimum period should be set.   Once the imposition of a minimum  period  of  imprisonment  is  considered  appropriate  the  principles  and factors relevant to the normal sentencing exercise are relevant to setting the length of the minimum period of imprisonment such as the matters in ss 7-9 of the Sentencing
Act and personal circumstances that are to the credit of the offender.29 A minimum

27	Sentencing Act 2002, s 10B(2).
28	R v Lorigan at Appendix 2.

period of imprisonment of two thirds, for example, should only be reserved for the most serious cases.30

[41]     In  this  case  the  aggravating  factors  mentioned  above  and  the  lack  of significant mitigating factors of the offending or personal to you mean that a minimum period of half the sentence is justified.

[42]     Would you now please stand Mr Van de Ven.

Result

[43]     On  each  of  the  charges  of  manufacturing  methamphetamine  you  are

sentenced to 17 years’ imprisonment to be served concurrently with each other.

[44]     On  the  charge  of  attempting  to  manufacture  methamphetamine  you  are sentenced to two years’ imprisonment to be served concurrently on the lead sentence. On each of the charges of supplying methamphetamine you are sentenced to five years six months’ imprisonment, again concurrently.  On the charge of conspiring to supply methamphetamine you are sentenced to two years’ imprisonment to be served concurrently on the lead sentence.  I also impose concurrent sentences of 10 months’ imprisonment on the unlawful possession of weapons charges.

[45]     The effect of these sentences will be that you sentenced to a total term of

17 years’ imprisonment with an order that you serve a minimum of half of that sentence, or eight and a half years’ imprisonment.

[46]     There will also be an order under s 32(3) of the Misuse of Drugs Act for the forfeiture of $8,950 cash found at your home address.

[47]     You may stand down.

……………………………….

Woolford J

30	Sentencing Act 2002, s 8(c).