VAN HOUTEN v NEW ZEALAND POLICE [2019] NZHC 3266

VAN HOUTEN v NEW ZEALAND POLICE [2019] NZHC 3266 [12 December 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-000039[2019] NZHC 3266BETWEEN DANIEL PAUL VAN HOUTENAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2019Appearances: Appellant in personS Patia for the RespondentJudgment: 12 December 2019JUDGMENT OF MUIR JThis judgment was delivered by me on Thursday 12 December 2019 at 10.00 ampursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:Solicitors:S Patia, Marsden Woods Inskip Smith (Crown Solicitors), WhangareiCopy to the AppellantIntroduction[1] Mr Van Houten seeks leave to appeal four convictions, entered on 24 March2010 being:(a) Two counts of obtaining by deception.1(b) Two counts of unlawful possession of a firearm after revocation offirearms licence.2[2] These convictions were entered following a guilty plea in the District Court atWhangarei on 26 February 2010.[3] On 24 March 2010 Mr Van Houten was sentenced to 12 months' supervisionwith a direction that he surrender the relevant firearms if they remained in hispossession.Background[4] The background to the charges, as recorded in the Summary of Facts, is thaton 30 December 2006 Mr Van Houten was personally served with a notice revokinghis 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 Kaitaiafirearms dealer a 0.308 semi-automatic rifle, having produced his firearms licence tothe dealer.[6] On 2 October 2009 he likewise purchased from a Whangarei dealer a M14.308semi-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 orfirearms licence.[9] Significantly, the pre-sentence report states that he "generally agreed with thePolice Summary of Facts as presented" and said:I went and got a gun and then went to get my firearms licence back but theysaid I couldn't get it back I felt hard done by from the cops I have got ahunting and pest control certificate so I just rocked on up and got some moreguns.[10] Accordingly, there is no suggestion that as at February/March 2010 Mr VanHouten disputed that:(a) he had been served with the revocation notice; or(b) he had produced his firearms licence post-revocation with the intentionof acquiring firearms.Appeal jurisdiction[11] The appellant's notice of appeal is dated 12 November 2019. It acknowledgedthat it was out of time. Subsequently on 25 November 2019 he filed an Applicationfor Leave.[12] The relevant convictions arise from a proceeding that was commenced prior tothe 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 withpursuant to the law in force at the time the proceeding commenced. Commencementwas by way of two informations sworn on 26 November 2009. The informations werelaid summarily and therefore the proceeding was governed by the SummaryProceedings Act 1957.3 See s 397, Criminal Procedure Act 2011.[14] As such Mr Van Houten's appeal against conviction and sentence is governedby ss 115 – 122 of the Summary Proceedings Act 1957.[15] Section 115 provides for a general right of appeal against conviction andsentence. Section 116 specifies that such an appeal is to be initiated by written noticefiled within 28 days after sentencing. As such the current appeal is around nine and ahalf years out of time.[16] In R v Knight the Court of Appeal held that the "touchstone" for granting anapplication for leave to extend time is the interests of justice in the particular case.4What is required is a balancing between the interests of an individual applicant andsociety's wider interests in the finality of decisions. The Court identified the followingparticular considerations in relation to any application: the strength of the proposed appeal and the practical utility of the remedysought, the length of delay and the reasons for delay, the extent of the impacton others similarly affected and on the administration of justice, that isfloodgates 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 onlyentertain an appeal that is many years out of time, such as this, in exceptionalcircumstances. Applications for leave to appeal out of time involve abalancing test, in which relevant considerations include the wider interests ofsociety in the finality of decisions, the strength of the proposed appeal,whether the liberty of the subject is involved, and the practical utility of anyremedies sought. The extent of the impact on others affected and on theadministration of justice, and any prejudice to the Crown are also relevant. Along delay can be a major factor weighing against leave, and, whereunexplained, can be decisive.[Footnotes omitted]Appellant's submissions[18] Mr Van Houten did not file written submissions but in his Notice of Applicationfor leave to appeal and oral submissions he relies substantially on a New ZealandPolice job sheet provided as part of the disclosure he received in 2009 and in whichthe 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 byConstable L SHEPHERD (LSX448), there is no report whatsoeveracknowledging service of the Notice or a request for his Firearms Licence.[19] Mr Van Houten says that he has accordingly been wrongly convicted andsentenced.[20] In his oral submissions he says that he only pleaded guilty because he wasbeing 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 didnot make an immediate application to the Court. He says, however, that it is importantto 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 substantiveappeal 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 interms of responding to the current application and in potentially re-prosecuting theappellant. 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 heaccepted the Summary of Facts, including the statement that he had been served withthe relevant revocation notice. His explanations, both at the time of arrest and to thewriter of the pre-sentence report were fully consistent with his acceptance thatrevocation had taken place. Nevertheless, he asserted a right to continue to purchaseand use firearms.[24] Significantly also, the passage in the Police Job Sheet on which he now reliesdoes 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 behanded over was on the file.[25] I am satisfied that Mr Van Houten pleaded guilty to the charges, knowing thatthey 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 genuinemisunderstanding or mistake. There is no evidence of Mr Van Houten having notappreciated 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 extensivedelay. He was provided with the relevant job sheet as part of the respondent'sdisclosure. He refers to what he calls the "duress" of his remand circumstances butthere is no explanation for why, having left the Court on the day of sentence subjectonly to supervision, he did not seek to overturn the conviction earlier if "duress" wasthe operative element in his guilty plea. Instead he has allowed a further nine and ahalf years to elapse before bringing the matter back before the Court.[27] I accept the respondent's submission that it is significantly prejudiced by thisdelay. Ms Patia advises me the Police file has now been destroyed. I accept that thePolice would be both prejudiced in the defence of any substantive appeal and in termsof re-prosecuting the appellant.[28] I take into account also the fact the period of supervision imposed by the Courthas long since expired and that the remedy sought therefore has reduced practicalutility.[29] This is a case where the delay in prosecution of an appeal has been verysubstantial, where there is no manifest injustice having regard to the guilty pleasentered at the time (and Mr Van Houten's contemporaneous acknowledgment that theStatement of Facts on which the prosecution proceeded was correct), and where theinterests 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