Van Wyk v Police [2018] NZHC 2853 (5 November 2018)

Last Updated: 30 November 2018

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 journey grappling with methamphetamine, and you are going to have to embrace the rehabilitative provisions that I am going to impose so that you tackle this addiction and maintain abstinence from methamphetamine. But I do take into account your rehabilitative steps and allow a discount of a month or two for those matters.

[7] The Judge then gave a 20 per cent discount for the guilty plea. In the result, the Judge imposed a sentence of nine months’ home detention on the lead burglary charge, with concurrent sentences of three months’ home detention on the remaining charges, with rehabilitative and post-detention conditions attached. She cancelled the supervision and community work sentences.

Affidavit evidence

[8] Mr van Wyk has provided an affidavit describing his role in the offending and his personal circumstances. In summary, Mr van Wyk says he was under the influence of methamphetamine at the time that he stole the air conditioning units. He says that “some of the guys” that he was “socialising” with had told him that they had moved the units and asked him to pick them up for them. He said, when the drugs wore off, he had realised what he had done wrong and started to panic. He also says that when the police were searching his place, he confirmed that he was in possession of methamphetamine and told them where it was. He said he had forgotten about the .22 calibre bullets and the two magazines in the van.

⁴ At [12].

[9] In relation to his non-compliance with his supervision and community work sentence, he refers to breakdowns in communication with his case worker and having lost faith in the Salvation Army Bridge Community programme after they failed to follow up and then lost his file. He also says he was still suffering from withdrawal symptoms. He then details the difficulties that he has had with his methamphetamine use and withdrawals and provides some background detail as to driving while suspended. He says he is a different person from what he was a year or so ago and that he has found a new expert who is going to help him with counselling.

[10] The Crown opposes the affidavit to the extent that it challenges the summary of facts.

[11] I allow the affidavit but note, in agreement with the Crown that, I place no weight on it to the extent that it departs from the summary of facts⁵, given Mr van Wyk plead guilty to the summary of facts and did not dispute or challenge those facts at his sentencing.

Jurisdiction

[12] An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge's reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below.⁶ Unless there is a material error in sentence, for example, that it is manifestly excessive; manifestly inadequate; or wrong in principle, an appellate court will not intervene.

The grounds of appeal

[13] Mr Kim, for the appellant, submits:

(a) The Judge’s assessment on the burglary involved several errors of fact, including:

(i) the appellant “broke into a residential building and took items”;

5. Sentencing Act 2002, s 24; R v Apostolakis (1997) 14 CRNZ 492 (CA) at 494; Pokai v R [2014] NZCA 356 at [30].

⁶ Tutakangahau v R [2014] NZCA 279 at [29]- [31].

(ii) there was a potential risk of confrontation with the owners, although it did not occur; and

(iii) the owner suffered loss and psychological impact that someone had entered into the privacy of their property and taken items from it.

(b) The uplift of six months was excessive, having regard to:

(i) possession of methamphetamine and ammunition charges should have been considered as part of the appellant’s overall offending;

(ii) insufficient weight was given to the appellant’s personal circumstances (including those set out in the appellant’s affidavit);

(iii) the Judge mischaracterised the appellant’s behaviour as “laissez faire”, particularly in light of a medical certificate confirming that the appellant was and still is suffering from depression;

(iv) the Judge failed to provide a discount for time spent on bail conditions; and

(v) the Judge failed to impose the least restrictive sentence necessary.

Assessment

[14] I am not satisfied the Judge erred or that the sentence was manifestly excessive.

[15] First, there were no factual errors. The sentence was based on a summary of facts and the Judge’s findings about the appellant’s conduct was plainly available to her. In addition, the Judge’s evaluation of the likely impacts of the offending was reasonable. Second, the Judge’s estimate of the severity of the offending, namely, low
end burglary offending attracting a start point of 18 months, was also reasonable and well within range.⁷ Third, the time Mr van Wyk spent on general bail was “not particularly restrictive” and the Judge’s decision not to provide a discount was reasonable.⁸

[16] Fourth, I accept the global uplift of six months or just less than 33 per cent of the lead sentence for the four other charges involving possession of methamphetamine, possession of ammunition, breach of community work and breach of supervision, was arguably excessive. But it is necessary to observe that:

(a) the offending occurred while still serving sentence – a factor not considered by the Judge;

(b) the methamphetamine offending could, by itself, reasonably expect a short cumulative uplift of 2-3months – it was distinct offending;⁹ and in any event,

(c) a short cumulative sentence of home detention, in the order of two to three months, could be expected on resentencing for the prior offending and non-compliance with the prior sentence.

[17] Finally, I acknowledge that the new evidence of depression through the period of non-compliance with the prior sentencing and during the offending is a relevant consideration.¹⁰ Understandably, as it was not brought to the Judge’s attention, it was not considered by her. Depression helps explain, at least in part, the non-compliance with the community service sentence. Nevertheless, I do not consider the overall end sentence was manifestly excessive. Judge Sinclair took great care, and I agree, to tailor the sentence to Mr van Wyk’s personal circumstances, acknowledging the importance of abstention from methamphetamine consumption, in combination with his rehabilitation. The presence of depression, if anything, provides a further basis for

⁷ Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189.

⁸ Batick v R [2016] NZCA 307 at [27].

9. Kahia v Police [2017] NZHC 2018 at [18]- [19]. See also Waterman v Police [2016] NZHC 247 at [3] and [22].

¹⁰ E (CA689/2010) v R [2011] NZCA 13, (2011) 25 CRNZ 411) at [70]; Shailer v R [2017] NZCA

38 at [45]-[48].

avoiding a sentence which sets Mr van Wyk up for failure, namely community service. While community detention was also an option which was available to the Judge, given the seriousness of Mr van Wyk’s offending and his methamphetamine addiction, a sentence of home detention was not inappropriate.

[18] Overall, while the uplift was stern, in the final analysis, an end sentence of nine months home detention for the burglary offending, together with a concurrent term of three months home detention on the remaining charges of possession of methamphetamine, possession of ammunition, breach of community work and breach of supervision was not manifestly excessive.

[19] The appeal is dismissed.