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 is a privilege on many levels, and he could not accept that a privilege is a basis for granting a discharge without conviction.

[7]     The Judge’s task was to decide on the threshold question, whether the convictions are out of all proportion to the gravity of the offence.  The Judge dealt with the gravity of the offending first.   His reasoning is captured in [12] of his decision, which reads:

[12]     The offending itself whilst at the lower end of the scale in terms of commerciality, and it is relatively unsophisticated, still amounts to what is commonly referred to as low level drug dealing; purchasing cannabis from another  individual,  repackaging  the  cannabis  into  smaller  amounts,  and selling it.   This offending did involve some degree of planning, and organisation.   There was a mode of sale.   You hoped that you would sell simply to friends who became aware that you had it and, in fact, sales were achieved.   It is not particularly relevant to me that the drugs were sold to friends.     The  drugs  were  still  sold,  and  distributed  to  others  in  the community, and that is the salient point.

[8]      The Judge went on:

[14]     In general, those guilty of this type of low level drug dealing are sentenced if not to relatively short periods of imprisonment, to home detention, or on rare occasions, to community detention, perhaps in conjunction with community work.   It is difficult to see, Mr Synnott, why you would be treated any differently.  The offending is the same.  You made choices.  You acted undoubtedly know what you were doing was illegal, and that there would be significant consequences if you were caught.

[9]      He refused the application for discharge.

[10]     On appeal, Ms Stevens argued that this case was very similar to a decision of the Court of Appeal in Vela v R.[1]     Mr Vela had 30.39 grams of cannabis in his possession and admitted supply to friends.   The Court of appeal agreed with the sentencing Judge that that supply did not involve significant commerciality, and classified the offending as falling within Class 1, so it could be dealt with by a fine

or non-custodial sentence.

[1] Vela v R [2010] NZCA 40.

[11]     Faced with evidence of the inability to travel America, and live with or even see his father (who lived there), the Court in Vela found that, balanced against the low level of offending, that consequence was disproportionate, and the appeal was allowed and a discharge granted.

[12]     There are some differences in the facts of the offending.  In Vela, the police found the cannabis in the garage and in Mr Vela’s bedroom.  Mr Vela accepted he had bought the cannabis plant for his own use, and for the purpose of supplying others, particularly friends.   On occasions, he received small amounts of cash or alcohol in exchange for cannabis. The Court said:

Beyond that there is no suggestion of any commercial element.

[13]     By contrast here, the appellant is found in a car, with the cannabis divided into 10 zip lock bags, with a sum of $90 cash in his possession, and with admissions that he had made sales at $20, and was intending to sell them all.

[14]     It is worth quoting the three categories from Terewi:

[4]       It remains appropriate to divide cannabis cultivation offending into three broad categories:

Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s6(1)(e) and (f)).

Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.

Category 3 is the most serious class of such offending. It involves large- scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.

[15]     One is reminded immediately that these are categories to divide cannabis cultivation.  They are not categories to divide cannabis sales.  The categories have to be adapted in this case.   There is room in the adaption process to classify this offending as category 1.  Equally, it can be classified as category 2.

[16]     In  Vela  there  was  an  admission  by  the  offender  that  he  received  small amounts of cash or alcohol in exchange for cannabis.   That is some commercial element. The phrasing of the Court of Appeal was:

Beyond that there is no suggestion of any commercial element.

[17]     A more detailed explanation was given before the District Court as to how Mr Synnott came to have the cannabis.   He told the psychologist who prepared a psychological report on him that he had been convinced by one of his acquaintances to help sell some cannabis to mutual friends.  He elaborated that this person was a friend who he felt a strong sense of obligation to.   Though he acknowledged that there was the attraction of extra money, in order to buy petrol and go surfing.

[18]     I am satisfied that there is more gravity in this offending than in Vela.  The presence of the zip lock bags does show a greater degree of commerciality than that found and acknowledged in Vela.

[19]     The  second  distinction  between  this  case  and  Vela  is  that  in  Vela  the appellant’s father lived in the United States.  The intention to move there had been developed prior to the offending.  After the conviction, he applied for a Visa and it was refused.  There is evidence in this case that the grandfather is fit and travels. Indeed, the grandfather is planning to sail from America to the Mediterranean.

[20]     Before  me,  it  was  responsibly  explained  that  the  consequence  of  the conviction will not prevent the appellant from keeping in touch with his mother, by travelling to the United Kingdom or to Mexico, provided he gets to Mexico without going through the United States.

[21]     I do think that Judge Flatley has over-characterised international travel for this family as a privilege.  It is a family spread around the globe.  International travel

is now relatively commonplace across quite a wide strata of society.  The disbursal of families across the globe is increasingly commonplace.   Families do make considerable sacrifices to move from one country to another, in order to maintain family relationships.   I do not think these movements should be regarded as some sort of privilege.

[22]     I have accordingly identified two elements of the reasoning from the decision on appeal which I think one can rationally differ from.  That is, the categorisation of the offending under Terewi, and whether or not overseas travel is a privilege.  Both go to the weighting of disproportionality.

[23]     I have found this appeal a difficult one, and finely balanced.  On analysis, I think that the Judge was right to record a significant aspect of commerciality in this dealing.  The presence of the zip lock bags.  The presence of the sales.  These take it into a different order of gravity from that in Vela.

[24]     Judge  Flatley,  focussing  on  the  evidence  that  the  appellant  was  making money from selling drugs, placed it in category 2 of Terewi[2]offending, indicating that the offending required some sentence of imprisonment.  He took a starting point of around eight to nine months, giving credit for a guilty plea, and ending with an indicated sentence in the region of four to six months.  He considered a sentence of home detention to be appropriate.

[2] R v Terewi [1999] 3 NZLR 62 (CA).

[25]     I would not  classify this as  category 2 under  Terewi.   I do not think  it deserves a prison sentence.   This is particularly an inapt sentence in my view, in respect of a young boy, aged 19 years, who has had a troubled life.  I think it is in the interests of society to keep him out of prison, if at all possible.  Similarly, I do not think a sentence of home detention was required.  This was a case for community work, rather than a fine. The fine is likely to be paid by the family.

[26]     However, at the end of the analysis, like Judge Flatley, I am simply not satisfied that the direct and indirect consequences of a conviction on international

travel would be out of all proportion to the gravity of the offence, and this is because of the commercial element of the offence. This is a case of drug dealing.

[27]     For these reasons, while I differ with some of the analysis as explained, this

Court will not intervene to allow the appeal against conviction.

[28]     Sentence is a different matter.  For the reasons I have given, I think that the offending was less serious than that classified by the Judge.   I have taken into account the clinical psychologist’s recommendation:

No personal psychological treatment is recommended for Mr Synnott due to an apparent lack of substance or significant emotional problems at this time. Furthermore,  given  his  apparently high  levels  of remorse,  responsibility, insight, and the positive behavioural and environmental changes he has made since his offending, it is the report writer’s opinion that his current predicament will act as both a powerful reoffending deterrent, and a positive motivating factor for his future, without further sanction.

I think this is a case where three months home detention was excessive, and inappropriate, as it would not have any particular rehabilitative effects.

[29]     The appellant has served 18 days of home detention.  I take that into account. The sentence is set aside, and the appellant is to serve 100 hours of community work. I do not think any further order is required.   The $90 held by the police is to be forfeited.

Solicitors:

Anne Stevens Barrister, PO Box 5827, Dunedin

Crown Solicitor, PO Box 803, Dunedin