R v Van Niekerken [2012] NZHC 3546 (19 December 2012)

Last Updated: 4 February 2013

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2011-054-463 [2012] NZHC 3546

THE QUEEN

v

HERRE VAN NIEKERKEN

Hearing: 19 December 2012 (Heard at Wellington)

Counsel: E C Killeen for Crown

S N Hewson for Accused

Sentence: 19 December 2012

_{SENTENCE OF RONALD YOUNG J}

[1] Mr Van Niekerken, you are now for sentence having pleaded guilty on two charges; one a representative charge of supplying methamphetamine; and one of conspiracy to supply. You, as have a number of other offenders, are being sentenced arising from a Police investigation which intercepted a number of communications arising from a substantial methamphetamine network. You were involved during the September 2010/February 2011 period.

[2] The methamphetamine network involved the sourcing of precursor material from suppliers in Auckland; the manufacture of methamphetamine in Hamilton and Murupara; and the distribution of methamphetamine at a street level in Manawatu,

_{Whangaui and Horowhenua.}

R V HERRE VAN NIEKERKEN HC PMN CRI 2011-054-463 [19 December 2012]

[3] The supply charge is a representative charge relating to all supply during the course of the operation through until February 2011 except for the supply in counts

2, 10, 13, and 21 in the indictment. You were charged jointly with Mr Matthews and

Mr Busch.

[4] The brief facts are, with regard to your offending, that on two occasions in November and December of 2010, 840 grams and 420 grams were supplied. As to the 840 grams, Mr Matthews arranged through you for co-offenders to travel to uplift the methamphetamine which had been manufactured in Hamilton. And with respect to the December supply, you and Mr Matthews met at another’s house and discussed the purchase initially of 280 grams of methamphetamine. You paid cash then as some form of down payment. In early December you met again but it seems then there was 420 grams of methamphetamine available which was purchased by the other accused and supplied through you to Mr Matthews.

[5] It was clear then you were involved in the payment for that drug and in authorising another accused to continue to manufacture methamphetamine with the remaining precursor material that had been supplied.

[6] There were four other individual suppliers of methamphetamine involving

14 grams, 1.4 grams, 2 grams and again 14 grams respectively.

[7] The overall result is that you are being sentenced on the basis of participation in the supply of just over 1 kilogram of methamphetamine. It seems clear to me having reviewed the evidence that you were below Mr Matthews in the command structure and clearly directed by him. But in that command structure it was clear that you were near the top of the organisation.

[8] You claimed that you did not profit financially from any of the drug dealing to any great degree and that you were essentially at the disposal of Mr Matthews supplying drugs. Your counsel says that you are similar to Mr Busch who was sentenced on the basis of involvement in 1.6 kilograms of methamphetamine with a starting point of 11 and a half years.

[9] Your counsel submits that your start sentence should be similar to Mr Busch’s because Mr Busch was also involved in travelling, uplifting and delivering methamphetamine and precursors. You and Mr Busch both supplied smaller amounts of methamphetamine. And finally, there should be a clear distinction between you and the starting point for Mr Matthews and Mr Edwards who were involved in manufacturing methamphetamine. You were not involved in the manufacturing of methamphetamine.

[10] The Crown on the other hand say that the intercepted conversations make it clear that your culpability is greater than Mr Busch’s and that you were clearly second in charge to Mr Matthews.

[11] 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.

[12] In terms of your personal circumstances. You are 39 years of age with eight children. You say you regret the impact of your offending and the remand in custody and the inevitable prison sentence will have on your family. You have a limited number of convictions, a minor previous drug conviction, none of which is relevant for the purpose of sentencing.

[13] I have read your letter and I take that into account. You express remorse for your actions and the people you have hurt and accept correctly that you have no one to blame except yourself. You say that you will never return to the Courts again and have learnt your lesson this time. I also acknowledge letters from your close family and friends. Of course I express the hope Mr Van Niekerken when you are released that your assertion that this is the last time you will appear in Court remains true.

[14] The Crown say that the proper starting point should be about 13 years given your level of involvement in the drug operation. In particular they emphasise your knowledge of the full operation; the fact that you were second in command; you provided a location for meetings; you introduced Nomad gang members to the group who became street dealers; you provided advice to others regarding drugs; and that this was a substantial commercial drug supply involving gangs.

[15] As to the deductions for your guilty plea. The Crown accept you are entitled to 25 per cent for the conspiracy charge but as to the supply charge they accept no more than 20 per cent would be appropriate given that would be in line with the deduction for other accused who pleaded guilty at a similar time. They accept that a three per cent discount for purity is appropriate.

[16] I note also through your counsel that you have accepted seizure of assets valued at about $30,000 on your own evidence or on your own assertion but there remains unresolved asset confiscation issues that are still before the Courts. But I take into account that concession.

[17] As far as Mr Hewson has submitted, he stressed that you had no involvement in the manufacturing and no role in sourcing precursors and of course I take into account the fact that you do not face any charge of manufacturing. He submits further that there are deductions warranted for your low risk of reoffending, close family and social support, your remorse and insight into the offending. As to your guilty plea, he suggests that you should have more than the 20 per cent given in other cases given you did not seek a sentence indication. But the fact that others involved in this offending asked for a sentence indication by itself could not affect proper sentencing levels.

[18] In my view the lead charge is the supply charge. You are clearly in band four of R v Fatu.[1] You are, I think, somewhere between Mr Matthew’s starting point of

15 years and Mr Busch’s at 11 and a half years. And I accept your involvement is

_{properly reflected in the fact that you were involved in supply of somewhere near}

1 kilogram of methamphetamine but no manufacturing. I consider the proper overall starting point justified here is one of 12 years and three months’ imprisonment.

[19] You are entitled to a deduction of 20 per cent for your guilty plea on the supply charge. As I have noted in other sentencing remarks, this is a generous allowance given your late plea on this charge. I also give you three per cent for the reasons I have previously identified. That reduces the start sentence of 12 years and three months’ imprisonment to nine years and six months’ imprisonment. Those sentences are imposed on both charges. No minimum period of imprisonment is

_{sought. No further deduction is justified, in my view.}

Ronald Young J

Solicitors:

E C Killeen, Ben Vanderkolk & Associates, Palmerston North, email: [e-mail]

S N Hewson, Ord Legal, Wellington, email: [e-mail]

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[1] R v Fatu [2006] 2 NZLR 72.