Van Houten v Police [2019] NZHC 3266 (12 December 2019)

Last Updated: 18 February 2020

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-000039 [2019] NZHC 3266

BETWEEN	DANIEL PAUL VAN HOUTEN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 December 2019
Appearances:	Appellant in person S Patia for the Respondent
Judgment:	12 December 2019

JUDGMENT OF MUIR J

This judgment was delivered by me on Thursday 12 December 2019 at 10.00 am pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:

S Patia, Marsden Woods Inskip Smith (Crown Solicitors), Whangarei Copy to the Appellant

VAN HOUTEN v NEW ZEALAND POLICE [2019] NZHC 3266 [12 December 2019]

Introduction

[1] Mr Van Houten seeks leave to appeal four convictions, entered on 24 March 2010 being:

(a) Two counts of obtaining by deception.¹

(b) Two counts of unlawful possession of a firearm after revocation of firearms licence.²

[2] These convictions were entered following a guilty plea in the District Court at Whangarei on 26 February 2010.

[3] On 24 March 2010 Mr Van Houten was sentenced to 12 months’ supervision with a direction that he surrender the relevant firearms if they remained in his possession.

Background

[4] The background to the charges, as recorded in the Summary of Facts, is that on 30 December 2006 Mr Van Houten was personally served with a notice revoking his firearms licence. He was required to hand it over but claimed he had lost it.

[5] Between 1 January 2008 and 1 January 2009, he purchased from a Kaitaia firearms dealer a 0.308 semi-automatic rifle, having produced his firearms licence to the dealer.

[6] On 2 October 2009 he likewise purchased from a Whangarei dealer a M14.308 semi-automatic rifle. Again, he produced his firearms licence.

[7] The Summary of Facts further records his explanation in terms that:

He was allowed to and was going to have firearms and no one would stop him.

¹ Sections 240(1)(a) and 241(b) of the Crimes Act 1961.

² Section 49a of the Arms Act 1983.

[8] It also notes that he refused to reveal the location of either his firearms or firearms licence.

[9] Significantly, the pre-sentence report states that he “generally agreed with the Police Summary of Facts as presented” and said:

I went and got a gun and then went to get my firearms licence back but they said I couldn’t get it back ... I felt hard done by from the cops ... I have got a hunting and pest control certificate so I just rocked on up and got some more guns.

[10] Accordingly, there is no suggestion that as at February/March 2010 Mr Van Houten disputed that:

(a) he had been served with the revocation notice; or

(b) he had produced his firearms licence post-revocation with the intention of acquiring firearms.

Appeal jurisdiction

[11] The appellant’s notice of appeal is dated 12 November 2019. It acknowledged that it was out of time. Subsequently on 25 November 2019 he filed an Application for Leave.

[12] The relevant convictions arise from a proceeding that was commenced prior to the date (1 July 2013) on which the Criminal Procedure Act 2011 came into force.
Accordingly, Part 6 of that Act has no application.³

[13] The appeal against conviction and sentence must therefore be dealt with pursuant to the law in force at the time the proceeding commenced. Commencement was by way of two informations sworn on 26 November 2009. The informations were laid summarily and therefore the proceeding was governed by the Summary Proceedings Act 1957.

³ See s 397, Criminal Procedure Act 2011.

[14] As such Mr Van Houten’s appeal against conviction and sentence is governed by ss 115 – 122 of the Summary Proceedings Act 1957.

[15] Section 115 provides for a general right of appeal against conviction and sentence. Section 116 specifies that such an appeal is to be initiated by written notice filed within 28 days after sentencing. As such the current appeal is around nine and a half years out of time.

[16] In R v Knight the Court of Appeal held that the “touchstone” for granting an application for leave to extend time is the interests of justice in the particular case.⁴ What is required is a balancing between the interests of an individual applicant and society’s wider interests in the finality of decisions. The Court identified the following particular considerations in relation to any application:

... the strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

[17] Seventeen years later in Butcher v R the Court of Appeal noted:⁵

[7] This Court has affirmed on numerous occasions that it will only entertain an appeal that is many years out of time, such as this, in exceptional circumstances. Applications for leave to appeal out of time involve a balancing test, in which relevant considerations include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedies sought. The extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown are also relevant. A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.

[Footnotes omitted]

Appellant’s submissions

[18] Mr Van Houten did not file written submissions but in his Notice of Application for leave to appeal and oral submissions he relies substantially on a New Zealand Police job sheet provided as part of the disclosure he received in 2009 and in which the following is recorded:

⁴ R v Knight [1998] 1 NZLR 583 at [9].

⁵ Butcher v R [2015] NZCA 102, at [7].

Although noting that the actual “Notice of Revocation” was served by Constable L SHEPHERD (LSX448), there is no report whatsoever acknowledging service of the Notice or a request for his Firearms Licence.

[19] Mr Van Houten says that he has accordingly been wrongly convicted and sentenced.

[20] In his oral submissions he says that he only pleaded guilty because he was being held on remand and was being threatened by other inmates. He was unable, however, to adequately explain why subsequent to his release on supervision he did not make an immediate application to the Court. He says, however, that it is important to him now as a 36 year old to have these criminal convictions overturned.

Respondent’s submissions

[21] The Police oppose the grant of leave to appeal. They say that the substantive appeal has no merit and the long period of delay has not been adequately explained.

[22] The Police also say that they are significantly prejudiced by the delay, both in terms of responding to the current application and in potentially re-prosecuting the appellant. It also emphasises the public interest in the finality of the proceedings.

Discussion

[23] Significantly, the appellant pleaded guilty to the charges, and I am satisfied he accepted the Summary of Facts, including the statement that he had been served with the relevant revocation notice. His explanations, both at the time of arrest and to the writer of the pre-sentence report were fully consistent with his acceptance that revocation had taken place. Nevertheless, he asserted a right to continue to purchase and use firearms.

[24] Significantly also, the passage in the Police Job Sheet on which he now relies does not establish an absence of service. Indeed, it confirms that service was effected, albeit that no report “acknowledging service” or of the request that the licence be handed over was on the file.
[25] I am satisfied that Mr Van Houten pleaded guilty to the charges, knowing that they were premised on a revocation of licence and that he did not dispute this premise. The case is not one where the pleas have been shown to be vitiated by any genuine misunderstanding or mistake. There is no evidence of Mr Van Houten having not appreciated the nature of the charges or that he did not intend to plead guilty.

[26] Nor does Mr Van Houten provide an adequate reason for the very extensive delay. He was provided with the relevant job sheet as part of the respondent’s disclosure. He refers to what he calls the “duress” of his remand circumstances but there is no explanation for why, having left the Court on the day of sentence subject only to supervision, he did not seek to overturn the conviction earlier if “duress” was the operative element in his guilty plea. Instead he has allowed a further nine and a half years to elapse before bringing the matter back before the Court.

[27] I accept the respondent’s submission that it is significantly prejudiced by this delay. Ms Patia advises me the Police file has now been destroyed. I accept that the Police would be both prejudiced in the defence of any substantive appeal and in terms of re-prosecuting the appellant.

[28] I take into account also the fact the period of supervision imposed by the Court has long since expired and that the remedy sought therefore has reduced practical utility.

[29] This is a case where the delay in prosecution of an appeal has been very substantial, where there is no manifest injustice having regard to the guilty pleas entered at the time (and Mr Van Houten’s contemporaneous acknowledgment that the Statement of Facts on which the prosecution proceeded was correct), and where the interests of the public in finality of justice significantly inform the ultimate result.

Result

[30] I dismiss the application for leave to appeal out of time.

Muir J