Sinclair v Police
[2021] NZHC 2788
•18 October 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-00032
[2021] NZHC 2788
BETWEEN ANGUS SINCLAIR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 October 2021 Appearances:
M J Scally for Appellant (on instructions for A M Dawson) R D Smith for Respondent
Judgment:
18 October 2021
ORAL JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Mr Sinclair, was sentenced to 23 months’ imprisonment by Judge Robinson on charges of selling cannabis,1 possessing cannabis for supply,2 and driving while suspended.3
[2] Mr Sinclair appeals that sentence. He seeks leave to file fresh evidence and contends that the sentence itself is manifestly excessive and that he should have been sentenced to home detention.
1 Misuse of Drugs Act 1975, ss 6(1)(e) and 6(2); maximum penalty eight years’ imprisonment.
2 Sections 6(1)(f) and 6(2); maximum penalty eight years’ imprisonment.
3 Land Transport Act 1998, ss 32(1)(c) and 32(2).
SINCLAIR v NEW ZEALAND POLICE [2021] NZHC 2788 [18 October 2021]
Facts
[3] Turning now to the factual background in this matter, in June 2020 the police commenced an investigation into the sale of cannabis within the Dunedin area. Mr Sinclair was identified as selling cannabis for an associate under the alias “Mr Green”.
[4] In August 2020 Mr Sinclair purchased the Mr Green business cell phone and client base from an associate. He purchased an average of five ounces of cannabis weekly from local sources then packaged it into 2.3 g bags to sell for $50. Between 1 August 2020 and 18 March 2021, he sold approximately 5 ounces of cannabis a week, generating $80,000. He text messaged his clientele under the name “Mr D” to arrange pick-ups or deliveries, selling from prominent city locations on and off the street. He only sold to his clients though accepted new referrals on confirmation of the client’s mobile number.
[5] So far as the driving conviction is concerned, on 16 February 2021, Mr Sinclair was issued with a 3-month demerit suspension notice and was suspended from driving until 16 May 2021. At approximately 6 pm on 18 March 2021, he was seen driving his partner’s vehicle through various streets in central Dunedin city.
[6] Mr Sinclair stopped the vehicle on the side of the road meeting unknown persons who approached his driver’s door window. He exchanged a bag of cannabis for $50 cash then drove off. He drove into a commercial carpark and, after he parked, a male approached and entered the front passenger seat. When police approached, Mr Sinclair was in the process of selling cannabis to the client. A search of his vehicle revealed a snap lock container of 34, 2.3-3 g bags of cannabis and $375 cash. The bags of cannabis had a value of $1,700.
[7] A search of Mr Sinclair’s address located a plastic bucket containing five- ounce bags of cannabis with a total weight of 151 g, scales, snap lock bags and $32,590 in cash. The bags of cannabis have a value, when sold as $50 bags, of $3,250.
[8] Mr Sinclair admitted the offending and stated it took him approximately 13 weeks to pay his associate the $10,000 for the “Mr Green” business phone number
and client base. He stated he only sold cannabis in $50 bags and that the money found by police was made from the sale of cannabis. He thought it was just over $20,000. He said he sold cannabis to support his family and mother. He admitted he was aware his driver’s license was suspended.
District Court decision
[9] Turning now to the District Court decision, Judge Robinson had previously given Mr Sinclair a sentence indication of 23 months’ imprisonment. He referred briefly to that indication where he set out the background to Mr Sinclair’s offending and analysed the appropriate sentence.
[10] In the sentence indication he placed the offending in band two of R v Terewi4 and adopted a starting point of 36 months’ imprisonment after referring to Harrieder v R.5 The Judge declined to uplift the sentence for Mr Sinclair’s relatively minor conviction history. He granted discounts of 25 per cent for Mr Sinclair’s guilty plea, five per cent for addiction and five per cent for attending counselling. He signalled at the sentence indication that he was not prepared to indicate a sentence of home detention and that “it [seemed] to [him] that home detention may not be appropriate where the considerations of deterrence and denunciation are to the fore”. He noted the cases indicate deterrence and denunciation are generally prioritised in cases of commercial level drug dealing.
[11] The Judge adopted this analysis from the sentence indication leading to an end sentence of 23 months’ imprisonment. He then considered whether home detention was appropriate.
[12] The Judge noted Mr Sinclair’s age, at 27, submissions from counsel that home detention can meet principles of deterrence and denunciation, that Mr Sinclair is employed, that he has sought assistance for his cannabis use and that he was presently abstinent. In summary, the Judge found Mr Sinclair had made some positive changes.
4 R v Terewi [1999] 3 NZLR 62 (CA).
5 Harrieder v R [2020] NZHC 2548.
[13] On the other hand, the Judge found this was commercial offending which Mr Sinclair engaged in for profit. He considered the principles of deterrence and denunciation and that to meet these the sentence needed to be at a level that ensured Mr Sinclair and others who might contemplate purposefully entering into commercial level dealing in cannabis understood the outcome would be imprisonment. The Judge did not think home detention offered sufficient deterrence.
[14] Following that analysis, and after concluding the essential sentence, the Judge commented that many people seem to think cannabis is a harmless drug. He noted the comment in the pre-sentence report that Mr Sinclair had used cannabis to the extent he suffered drug-induced psychosis. The Judge considered that aggravated his offending as Mr Sinclair knew the harm that can result from cannabis usage.
Principles on appeal
[15] Turning now to the principles to be applied on this appeal, home detention is an alternative to a short-term sentence of imprisonment.6 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.7
[16] An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.8 From the Court of Appeal in Manikpersadh v R the appropriate approach in appeals of this type was set out in this way:9
an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
6 Sentencing Act 2002, s 15A(1)(b).
7 Section 15A(1)(a).
8 Doolan v R [2011] NZCA 542 at [39].
9 Manikpersadh v R [2011] NZCA 452 at [11].
And there the Court also said:10
…the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below.”
[17]In Fairbrother v R, the Court of Appeal stated:11
[30] … the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[31] Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”…
Fresh evidence
[18] I turn now to an issue concerning an application to adduce fresh evidence here. Ms Scally, counsel for Mr Sinclair, applied to adduce fresh evidence, namely, a record of consultation between Mr Sinclair and his general practitioner in 2016. That record states Mr Sinclair:
Started using cannabis heavily 5 years ago to block out anxiety/feelings on social situation, developed anxiety attacks around 6 weeks ago and felt that cannabis wasn’t helping, came off, panic attacks still persisting.
[19] The Court of Appeal set out the test for the admission of fresh evidence in an appeal against sentence in Mark v R.12 It is the same as that for fresh evidence for a conviction appeal.13 The first question is whether the evidence is credible. If not, it will not be admitted. The second is whether it is fresh, meaning whether or not it could have been presented to the sentencing court with reasonable diligence. If the evidence is credible and fresh it should be admitted, unless it would have no impact. If it is credible but not fresh the Court must assess its strength and potential impact.
10 Manikpersadh v R, above n 9 at [12].
11 Fairbrother v R [2013] NZCA 340.
12 Mark v R [2019] NZCA 121 at [16].
13 Lundy v R [[2013] UKPC 28, [2014] 2 NZLR 273.
[20] The evidence in question here is credible in the sense that there is no reason to doubt the doctors record, though it relies on Mr Sinclair’s self-reporting. In my view, however, the evidence is also credible as it is largely consistent with Mr Sinclair’s subsequent statements to the pre-sentence report writer and plausible in the context of his cannabis use. There was also seemingly little motivation for Mr Sinclair to lie to his doctor at the time. Mr Smith, for the Crown, however, quite properly notes that Mr Sinclair has not sworn an affidavit or otherwise provided evidence confirming the truth of his statements to the doctor.
[21] The evidence is not fresh, however, because it could have been obtained at sentencing with reasonable diligence. However, Mr Smith did accept that counsel for Mr Sinclair could not have anticipated that his prior medical consultations would have assumed prominence at sentencing (at least until the pre-sentence report had been received). This, at its highest, means counsel was justified in not obtaining the evidence pre-sentencing, although they plainly could have.
The relevance of the evidence
[22] Turning now to the relevance of the evidence, ultimately whether the evidence is fresh or not here, in my view, is irrelevant as it largely accords with the other information before the Court and therefore would not have impacted the sentence.
[23] Ms Scally endeavours to argue the information is important because of the Judge’s comment that Mr Sinclair had suffered a “drug-induced psychosis”. Ms Scally elaborates that, in light of the information contained in the consultation record, the comments in the pre-sentence report relied on by the Judge are incorrect. She says it is in the interests of justice for the Court to consider the evidence, so Mr Sinclair is at least dealt with on correct information. Again, I do note, however, that Mr Sinclair has not provided an affidavit nor a statement in support of these submissions.
[24] Mr Smith has provided a signed letter from the pre-sentence report writer. She stood by her statement that Mr Sinclair had suffered “psychotic symptoms” on the basis of information he gave her. She stated, however, she did not intend to diagnose him. She elaborated that Mr Sinclair told her of a significant and distressing event that motivated him to abstain from cannabis for a time. That fits into the context of
his long-term cannabis use. She provided her hand-written notes made at the time she interviewed Mr Sinclair. The Court has no reason at all to doubt her credibility.
[25] Where the record speaks it is consistent with the pre-sentence report. It is entirely silent, however, on whether or not Mr Sinclair suffered a psychotic event or psychotic symptoms. This omission may be due to Mr Sinclair not reporting the event to his doctor, or the event may have occurred after the record was made. In any event, the “fresh evidence” is insufficient to support Ms Scally’s categorisation of the pre- sentence report as containing incorrect information. Accordingly, whether or not the evidence is admitted, and I accept it will be admitted here, it should not impact the outcome of this appeal.
The appeal
[26] The sole ground of appeal here is that the Judge erred in not commuting the sentence to one of home detention. Ms Scally submitted in doing so the Judge erred in four ways, by:
(a)focusing almost entirely on the need to denounce and deter the offending;
(b)not placing any weight on the need to rehabilitate Mr Sinclair, especially given his efforts to change;
(c)finding that sentencing principles could not be met through a sentence of home detention; and
(d)relying on incorrect information about Mr Sinclair’s experience with cannabis.
[27] Ms Scally referred to the relevant principles expressed in the Court of Appeal that I note above. She analysed McLean v Police, among other cases. This was a decision of this Court where Churchman J found the Judge in the lower court erred by only taking into account the purposes of deterrence and denunciation and in failing to
properly consider home detention as an option.14 I accept her submissions as to the general principles governing the sentence of home detention.
[28] Although the Court of Appeal has provided clear authority that home detention is a deterrent sentence that can denounce offending, the question must ultimately be whether or not it is sufficient deterrence and denunciation of the offending before the Court. One would not ordinarily suggest, for example, that home detention will be sufficient deterrence or denunciation for serious sexual offending or murder. Just because the sentence can address those purposes in one case, does not mean it can in another. In my view, while it would be an error to state home detention is not a deterrent sentence on the basis of the Court of Appeal authority, it must not be an error for the Judge to consider whether home detention is sufficient deterrence or denunciation in the circumstances before them. That is what the Judge did here.
[29] This analysis accords with Mr Smith’s submissions so I agree with him on this issue.
[30] Ms Scally is right, however, that the Judge was obliged to consider the other purposes of sentencing.15 In my view, he clearly did so, noting Mr Sinclair has made some positive changes (the plain inference being that there is the potential for rehabilitation). This was, therefore, not a case where the Judge made an error of law by ignoring relevant purposes of sentencing.
[31] However, the Judge did find this was offending at the level requiring prioritisation of deterrence and denunciation. That was not, as I see it, an error, as the Court of Appeal in R v Terewi confirmed, deterrence and denunciation are the paramount considerations when dealing with commercial level dealing.16 I agree with Mr Smith that Mr Sinclair was not labouring under an addiction to the degree that he was unable to make a rational choice whether or not to offend. In that instance it would have been inappropriate to prioritise deterrence for the reasons set out in
14 McLean v Police [2018] NZHC 102 at [47].
15 Fairbrother v R, above n 11.
16 R v Terewi, above n 4, at [13].
Zhang v R and on the basis of the expert evidence considered there (in relation to methamphetamine offending).17
[32] Here, Mr Sinclair made $80,000 over the eight-month period he was selling cannabis. That amounts to an annual income of $120,000. It indicates this was a serious operation, significantly, one which he had purchased as a going concern and from which Mr Sinclair derived considerable financial gain. In her submissions, Ms Scally accepted the offending here was serious and contained a commercial element. Mr Sinclair had in fact purchased the cannabis operation and customers, just as one purchases some other kind of business. Such black-market economics warrant a sentence of imprisonment and elevates the importance of the purposes of deterrence and denunciation.
[33] The preceding analysis means that I reject the first three grounds of appeal which I note above at [26]. Although the Judge focused on deterrence and denunciation, that was not an error. He did consider Mr Sinclair’s rehabilitative steps (or efforts to change) and did not err in finding deterrence and denunciation could not be met by home detention in this case.
[34] In relation to the fourth ground of appeal, I agree with Mr Smith’s analysis here. He submitted the issue was not whether or not Mr Sinclair’s experience amounted to “psychotic symptoms”. Rather, it was whether Mr Sinclair was aware of the harm cannabis was having or had previously had on him. The Judge found that he had been so aware. He must have been, as I see the position, as both the pre-sentence report and doctor’s record indicate this was the reason why he stopped using. Mr Smith submitted this was appropriately taken into account as an aggravating factor as Mr Sinclair was aware of the harm cannabis can have yet chose to deal it regardless. Mr Smith’s characterisation is appropriate where he notes the Judge approached sentencing on the basis “[Mr Sinclair] appreciated that cannabis was a potentially harmful substance and, notwithstanding that appreciation, sold the drug at a significant level for his own commercial gain”. That was plainly relevant to the issue of whether home detention was appropriate.
17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90], [92] and [148]
[35] Ms Scally has relayed to the Court the fact that Mr Sinclair says his time in prison has been very difficult for him. At one level, that indicates the effectiveness of the sentence imposed – he will think twice before committing offences of this nature again (and has expressed his desire not to return to prison). She also relayed Mr Sinclair’s unwavering desire to change his life, indicating imprisonment has not in fact displaced the purpose of rehabilitation.
[36] Judge Robinson in the District Court did comment at the sentence indication hearing that he was not sure home detention was appropriate, so counsel and Mr Sinclair were accordingly on notice of this at the sentencing hearing. Mr Sinclair, as I see it, ought not to have expected that he was immediately entitled to a sentence of home detention.
Conclusion
[37] In conclusion, for all the reasons I have outlined above, I find that Mr Sinclair here has failed to demonstrate any error in Judge Robinson’s sentencing decision. This appeal is dismissed.
...................................................
Gendall J
Solicitors:
Public Defence Service, Dunedin RPB Law, Dunedin
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