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

1. 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.

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

Episode One

1. 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. 

2. 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

1. 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].

2. 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

1. 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. 

2. For this third episode of offending the appellant was convicted of conspiring to manufacture methamphetamine, producing pseudoephedrine knowing it was to be used to manufacture methamphetamine and possessing material intending it to be used in the manufacture of pseudoephedrine (counts 7, 8 and 9).

Sentencing

1. In sentencing Mr Vant Leven, Judge Weir roundly rejected Mr Edward’s submission that the offending was similar in kind and connected, and that concurrent sentences should be imposed.  The Judge said:[3]

   … I do not for a moment accept that.  Each was a separate incident; separate in time and separate in quantity.  I also have to ask myself the question:  why would you have a complete clandestine laboratory if you are only involved in a peripheral way? 

   I intend, therefore, to approach the three discrete episodes separately as, in my view, I must.

   [3]At [24]–[25].

2. For the Episode One offending the Judge took a starting point of two years imprisonment.  He took the same starting point for the Episode Two offending.  For the Episode Three offending the Judge’s starting point was three and a half years, uplifted to four years to reflect that the offending came on top of two previous convictions for possession of methamphetamine and two for minor cannabis offending and also that the offending occurred while the appellant was on bail.  Those three starting points added to eight years (2 + 2 + 4 years), which the Judge discounted to seven years to take account of the totality of the offending. 

3. Mr Edward submitted the Judge erred in taking this cumulative sentences approach.  He contended the Judge ought to have imposed a sentence on the lead offence, and then concurrent sentences in respect of the other offences.  He relied on s 84(2) of the Sentencing Act 2002.  Mr Edward took no issue with the Judge adopting the conspiracy count (count 7) as the lead offence.  But he contended the Judge should have imposed a sentence of three years imprisonment for that offence – or perhaps for all the Episode Three offending – and then concurrent sentences each of two years imprisonment for the Episode One and Episode Two offending.  That would give an effective end sentence of three years imprisonment.

4. When the Court pointed out that approach took no effective account of the Episode One and Episode Two offending, Mr Edward was obliged to accept that.

5. Not only do we detect no error in Judge Weir’s sentencing approach, we endorse it as correct for precisely the reasons the Judge gave in the sentencing remarks set out in [9] above.

6. The challenge to the Judge’s sentencing starting point of seven years imprisonment is devoid of merit.

7. Two other points touched on by Mr Edward can be quickly disposed of.  The first is the 50 per cent reduction in the end sentence of imprisonment Judge Weir made to reflect the instrument forfeiture order he made in respect of the properties used in the Episode One and Episode Three offending.  The financial impact of that order on Mr Vant Leven was $215,700.  Mr Edward accepted the 50 per cent reduction was reasonable.  His point was just that it should have been made from an end sentence of three years imprisonment (3 years less 50% = 1½ years imprisonment).

8. Secondly, Mr Edward pointed out Mr Vant Leven had been in prison on remand for about one year between his arrest and sentencing.  Because he was a remand prisoner, he had not been able to embark on any drug treatment programmes during that period.  In consequence Mr Vant Leven was likely to be in prison for a longer period before the Parole Board seriously considered releasing him on parole.  The Court inquired as to the reason or reasons for the year’s delay, and in particular whether Mr Vant Leven was himself responsible?  Mr Edward’s response was that he did not know – he had no information about that.

Result

1. As none of the points advanced by Mr Edward has any merit the appeal is dismissed.

Solicitors:
Harry Edward Law, Rotorua for Appellant
Crown Law Office, Wellington for Respondent