Syme v The Queen - [2017] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA469/2016
[2017] NZCA 228

BETWEEN	CHLOE YULO SYME Appellant
AND	THE QUEEN Respondent

Hearing:	24 May 2017
Court:	Asher, Venning and Ellis JJ
Counsel:	S G Vidal for Appellant E J Hoskin for Respondent
Judgment:	1 June 2017 at 12:30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

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REASONS OF THE COURT

(Given by Venning J)

Chloe Syme pleaded guilty to knowingly permitting her premises to be used for the commission of an offence against the Misuse of Drugs Act 1975.[1]
[1]Misuse of Drugs Act 1975, s 12. The charge was laid as a representative charge which referred to permitting both her home and a vehicle to be used in breach of the Act.
Judge Roberts dismissed Ms Syme’s application for a discharge without conviction and on 15 July 2016 sentenced her to five months’ community detention and 180 hours’ community work.[2]
[2]R v Syme [2016] NZDC 13201.
Ms Syme appeals against the entry of a conviction and seeks a discharge. This is properly classed as an appeal against conviction and sentence.[3]

Facts

[3]Jackson v R [2016] NZCA 627 at [9].

During 2015 Ms Syme was in a de facto relationship with Kenny Fung. They were living in Ms Syme’s home at Don Street, Oamaru. A police investigation revealed that Mr Fung and an associate were involved in dealing in methamphetamine. Mr Fung drove to Christchurch once or twice a month where he purchased one to 1.5 grams of methamphetamine before bringing the drug back to Ms Syme’s home at Don Street. He then broke the drug down into smaller deal bags before onselling them to friends and associates around Oamaru. Mr Fung used a car registered in Ms Syme’s name for the trips to Christchurch and when driving around Oamaru to sell the drugs. From time to time Mr Fung also sold methamphetamine to close friends from Ms Syme’s home at Don Street.
In early August 2015 Mr Fung purchased eight grams of methamphetamine worth approximately $7,000 on credit. He had onsold approximately half of it before gang members visited the Don Street address. They stood over Ms Syme and Mr Fung and stole the cash and the remaining drugs. Mr Fung then purchased another eight grams of methamphetamine on credit and onsold approximately half of it. During this time Ms Syme arranged to borrow $6,000 from Mr Fung’s father to help pay Mr Fung’s outstanding drug debt. There were text exchanges between Ms Syme and Mr Fung in which she showed knowledge of his drug dealing, and while she strongly expressed her dissatisfaction with this and her wish for him to stop, she did not require him to leave.
The charge Ms Syme pleaded guilty to covered the period between 15 and 29 August 2015. By this time Ms Syme was aware of Mr Fung’s drug dealing but did not directly take part in it. She knew Mr Fung used their car…

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 Syme v The Queen

Details

AGLC: Syme v The Queen [2017] NZCA 228
Case: [2017] NZCA 228
Decision Date: 1 June 2017 at 12:30 pm

CaseChat Overview and Summary

Chloe Syme appealed against her conviction and sentence for knowingly permitting her premises to be used for the commission of an offence against the Misuse of Drugs Act 1975. She had pleaded guilty to allowing her home and a vehicle to be used in breach of the Act by her de facto partner, Kenny Fung, who was involved in dealing in methamphetamine. The District Court dismissed her application for a discharge without conviction and sentenced her to five months’ community detention and 180 hours’ community work.

The appeal raised issues concerning the assessment of the gravity of the offending and the consequences of the conviction. The appellant’s counsel argued that the District Court had erred in its assessment of the gravity of the offending, suggesting that a broader approach should be taken. The counsel submitted that the seriousness of the charge, involving a Class A drug, methamphetamine, was only one factor and that Ms Syme's involvement in the offending should also be considered. The court noted that Ms Syme had direct knowledge of Mr Fung’s dealing in methamphetamine and had helped him arrange to pay his drug debts. Ms Syme permitted Mr Fung to bring methamphetamine into the home and to use it as a base for his dealing.

Regarding the consequences of the conviction, the court considered whether there might be consequences for Ms Syme in relation to her employment and ability to travel overseas. The employer's letter was equivocal as to whether a conviction would lead to loss of employment. However, the Electrical Workers Registration Board confirmed that decisions were made on a “case by case” basis and that it was appropriate for the Board to have the full information before making a decision. The court found that the Judge was correct to decline to grant a discharge without conviction, as it could not be said that the consequences of conviction would be out of all proportion to the gravity of the offence in this case.

The appeal against conviction and sentence was dismissed, and the decision of the District Court was upheld.

Orders