Sinclair v Police - [2021] NZHC 2788

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sinclair v Police

Details

AGLC: Sinclair v Police [2021] NZHC 2788
Case: [2021] NZHC 2788
Decision Date: 18 October 2021

CaseChat Overview and Summary

Angus Sinclair appeals against his 23-month imprisonment sentence for selling cannabis, possessing cannabis for supply, and driving while suspended. The sole ground of appeal is that the District Court judge erred in not commuting the sentence to one of home detention. The appellant contends the judge erred by focusing almost entirely on the need to denounce and deter the offending, not placing any weight on the need to rehabilitate him, finding that sentencing principles could not be met through a sentence of home detention, and relying on incorrect information about his experience with cannabis. The court found that while the judge focused on deterrence and denunciation, this was not an error as the offending was at a commercial level requiring prioritisation of those purposes. The judge also considered the appellant's rehabilitative steps and did not err in finding that home detention could not meet the purposes of deterrence and denunciation in this case. The judge appropriately took into account the appellant's awareness of the harm cannabis can have, which was relevant to the issue of whether home detention was appropriate. The appeal was dismissed.

The court also addressed an application to adduce fresh evidence, namely, a record of consultation between the appellant and his general practitioner in 2016. The court found that while the evidence was credible, it was not fresh as it could have been obtained at sentencing with reasonable diligence. However, the evidence largely accorded with the other information before the court and therefore would not have impacted the sentence. The evidence was admitted but should not impact the outcome of this appeal.

Orders