Synnott v Police - [2013] NZHC 486

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-000054 [2013] NZHC 486

HARRISON ANTHONY JOSEPH SYNNOTT
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 8 March 2013

Appearances: A Stevens for the Appellant
R D Smith for the Respondent

Judgment: 15 March 2013

RESERVED JUDGMENT OF FOGARTY J

[1] The appellant was convicted and sentenced on 26 October 2012 for possession of cannabis for supply and supplying cannabis, laid summarily. The District Court (Judge Flatley) sentenced the appellant to three months home detention and six months post detention conditions. This is an appeal against the conviction, laid on the basis that he had pleaded guilty but sought a discharge without conviction. There is also appeal against sentence on the grounds that the
sentence imposed was manifestly excessive.

SYNNOTT V NEW ZEALAND POLICE HC DUN CRI-2012-412-000054 [15 March 2013]

The offending

[2] Mr Synnott’s car was stopped for a routine vehicle check. The police smelled cannabis and conducted a search. They found 19 grams of cannabis, packaged for sale. It was in 10 small clear zip lock bags, each containing one to three grams of cannabis. In the front pocket of the appellant’s sweatshirt was $90 cash. The appellant told the police he had obtained the cannabis from an associate that day, and had sold at least two bags to his friends for $20 each, and that he intended to sell the remaining cannabis to friends to make a quick buck. He said it was the first time he had done this.

[3] He was, at the time, aged 19 years and four months, and was a university student. A year before, he had been convicted for excess breath alcohol, for which offence he was fined $550 and disqualified from driving for six months.

The decision under appeal

[4] On the application for discharge without conviction, the Judge had, of course, to consider ss 106 and 107 of the Sentencing Act 2002. The threshold test is that, “The Court must not discharge an offender without conviction unless the Court is satisfied that direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offending”. The Judge was not satisfied by that.

[5] The argument that a conviction was out of all proportion to the gravity of the offending was built around the consequences to the offender on his family relationships. His mother and father’s relationship broke down when he was two. He has had a difficult childhood because of this. The family is affluent. His mother has a business in New Zealand, but divides her time between the United Kingdom and Mexico, where she also has businesses. His father lives in Wanaka. He has a close relationship with his grandfather, who lives in the United States. The Judge recognised that the conviction may impact even more on his existing ability to travel internationally, already constrained by the conviction for alcohol driving offending.

[6] Somewhat controversially, the Judge said that the ability to travel internationally…

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 Synnott v Police

Details

AGLC: Synnott v Police [2013] NZHC 486
Case: [2013] NZHC 486
Decision Date: 15 March 2013

CaseChat Overview and Summary

Harrison Anthony Joseph Synnott appeals against his conviction and sentence for possession of cannabis for supply and supplying cannabis. Synnott was caught with 19 grams of cannabis, packaged in small bags, and $90 cash in his possession. He admitted to obtaining the cannabis from an associate and selling some to friends. Synnott argues that his conviction should be discharged without conviction, as the consequences of a conviction would be out of all proportion to the gravity of the offending. He also argues that the sentence imposed was manifestly excessive. The court must consider the direct and indirect consequences of the conviction in relation to the gravity of the offending. The court found that Synnott's offending was low-level drug dealing with some degree of planning and organisation. Although Synnott argued that the consequences of the conviction would impact his ability to travel internationally, the court found that international travel was not a privilege. The court also found that the commercial element of the offence, including the presence of the zip lock bags and the sales, increased the gravity of the offending. The court upheld the conviction but reduced the sentence to 100 hours of community work, taking into account Synnott's remorse and positive behavioural changes since his offending.

The final orders of the court are that Synnott's conviction is upheld, but his sentence is reduced to 100 hours of community work. The $90 held by the police is to be forfeited. Synnott has already served 18 days of home detention, which is taken into account.

Orders