The Queen v Sidwell
[2009] NZCA 385
•2 September 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA55/2009
[2009] NZCA 385THE QUEEN
v
KERRY MICHAEL SIDWELL
Hearing:23 June 2009
Court:Baragwanath, Randerson and Miller JJ
Counsel:Appellant in person
K A L Bicknell for Crown
Judgment:2 September 2009 at 9.30am
JUDGMENT OF THE COURT
THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Table of Contents
Para No
INTRODUCTION [1]
THE TRIAL [2]
THE APPEAL [7]
EVENTS OF 5 OCTOBER 2007 [10]
THE TIMELINES AND THE INTERPRETATION OF INTERCEPTED COMMUNICATIONS [20]
THE SCALES [24]
THE TICK LIST [26]The snaplock bags [28]
The cash [30]
Crown case “manufactured” [32]
The search warrants [33]TRIAL UNFAIRNESS [40]
JURY DELIBERATIONS [44]The conviction appeal: conclusions [45]
The sentence appeal [46]
Decision [52]Introduction
[1] Mr Sidwell appeals against his conviction on one charge of supplying methamphetamine and the sentence of four years’ imprisonment imposed by Dobson J. An appeal against conviction on five charges of selling cannabis was abandoned belatedly in reply submissions filed after the hearing.
The trial
[2] The Crown case was that Mr Sidwell was one of six men involved in a series of conspiracies to supply methamphetamine between January 2007 and the termination of a police monitoring operation in October of that year. Relying on calls and texts obtained under interception warrants, the Crown alleged that one of the co-accused, Barker, was procuring methamphetamine and supplying it to others, including Mr Sidwell, who retailed it. All six men were convicted on various charges.
[3] Mr Sidwell’s conviction for supplying methamphetamine rested upon events of 5 October 2007. It was said that Barker obtained a quantity of methamphetamine at 11 am that day and supplied part of it to Mr Sidwell when the men met at 6.18 pm. Mr Sidwell’s communications showed he had been holding his customers at bay in the preceding days, but on meeting Barker he began a flurry of texts and meetings with them that lasted for much of the night. When he was arrested some days later he was found to have: $1,100 in cash, although he claims to live hand to mouth; a list that the Crown says is a dealer’s tick list; electronic scales bearing traces of methamphetamine; and a number of small ziplock bags.
[4] The trial began on 28 October and took longer than estimated, with the Judge summing up on 17 November. At the beginning of the trial Mr Sidwell chose to represent himself despite the Judge’s urging that he retain his counsel, Mr Riddoch. Having regard to the nature of the charges and complexity of the trial, Dobson J appointed Mr Riddoch as amicus, and he addressed the jury in closing on Mr Sidwell’s behalf.
[5] Mr Sidwell gave evidence. He denied dealing in methamphetamine or cannabis, maintaining that there were innocent explanations for his many dealings with the co-offenders and others. He had acquired the scales innocently, there was no tick list and the ziplock bags were larger than point bags. He accused the police of having a grudge against him, and of making up much of the evidence.
[6] The jury began their deliberations at 10.43 am on 17 November. They returned at 4.30 pm with two questions, one of which was how to resolve an impasse. The Judge answered the question by explaining that after they had been deliberating for four hours he might discharge them if they were in a complete state of impasse, but the jury had many decisions to make in this case. Accordingly, he gave them an orthodox Papadopoulos direction. The jury continued to deliberate, and eventually returned with verdicts at 3.10 pm on Wednesday, 19 November.
The appeal
[7] Mr Sidwell’s appeal focused on the events of 5 October. He maintained that he was taken by surprise when the Crown focused on the 6.18 pm meeting with Barker. That was not signalled in the deposition of the witness who said she witnessed the meeting, Detective McBride, or in a timeline prepared by the Crown, or in his own cross-examination by the prosecutor; indeed, Mr Sidwell did not appreciate its significance until the prosecutor emphasised it in closing. The charge was framed in wide terms; it alleged that he supplied methamphetamine to persons unknown between 5 and 10 October. In fact he did not meet Barker until about 9 pm on 5 October, after some of the meetings that the Crown relied upon, and there were innocent explanations for all the meetings and communications.
[8] Mr Sidwell also maintained that the language used in texts and telephone calls included in the timeline does not bear the sinister interpretation placed on it by the Crown. The only timeline given to the jury focused on Mr Sidwell’s movements rather than those of all accused, and so placed an unfair construction on events. The scales had been obtained after the alleged conspiracy came to an end, and he intended to sell them. He conceded that he was dealing in cannabis, contrary to his stance before the jury, and contended that the evidence relating to cannabis dealings, such as the tick list, may have been misinterpreted as evidence relating to methamphetamine. He further maintained that interception and search warrants were improperly issued, and that the Judge insisted the jury make a decision prematurely.
[9] Because Mr Sidwell’s submissions were filed on the day of the hearing before us, it was necessary to give the Crown time to respond to many of his allegations. Mr Sidwell was also permitted to file submissions in reply.
Events of 5 October 2007
[10] Detective McBride made no mention of the 6.18 pm observation in her deposition statement, but she did in the statement which she read in evidence, without objection, on 30 October. (Mr Sidwell’s explanation is that if she read those paragraphs, he must have missed it.) She deposed that she observed Barker arrive at an address in Vincent St, where Mr Sidwell joined him at that time, leaving just before Barker half an hour later. She also stated that she saw Mr Sidwell at 7.55 pm, reversing his 4WD into the industrial area behind the address of another co-accused, Mr Alekna. Mr Sidwell did not cross-examine on this evidence; in particular, he did not put it to the officer that she had made it all up.
[11] Contrary to Mr Sidwell’s submissions, the evidence about the meeting was disclosed before the trial. The Judge outlined the Crown’s theory of the case when dismissing a s 347 application on 11 August 2008, although he did not refer specifically to the meeting. The amended statement was then sent to Mr Riddoch by letter of 24 October 2008. Attached to the letter was a one-page spreadsheet recording the observations. It was not incorporated into the timelines produced at trial because that was impractical by that late stage of trial preparation, but it was produced as exhibit 33 by the officer in charge of the case, the penultimate Crown witness. He gave evidence on 7 November, although it is apparent that production was a formal step; the document had already been referred to in evidence on 30 October (by Detective McLachlan).
[12] The Crown also opened its case by reference to the meeting. The opening addresses were not transcribed but we were provided with the notes of Crown counsel, which outlined a narrative in which the methamphetamine was supplied to Barker and then to Mr Sidwell on the evening of 5 October 2007. There is no foundation at all for Mr Sidwell’s suggestion that Crown counsel omitted any reference to it because he “didn’t want to commit perjury”.
[13] In evidence Mr Sidwell said that he was not a drug dealer, that there were innocent explanations for meetings, calls and cash, such as the sale of his possessions to pay outstanding rent to Barker, who was his landlord, and that the police had distorted the records and lied to the jury. He was closely cross-examined by reference to the events, the detail of the intercepted communications, the scales and the tick list. The following exchange occurred in relation to the 6.18 pm meeting:
Go then to next day, 5 Oct pg 136, 18.11.43, arranged to meet Mr Barker? …. yep.
Could be soon I’ll stop in iin [sic] 10 after he asked am I going past or something I presume, yep.
And hes got methamphetamine hasn’t he? …. well apparently you said he had.
And immediately after that almost you start contacting people? …. But wait a minute you said Alekna is in contact with Paul himself so why am I contacting Alekna if hes directly with Paul you’re not making sense – my business with Paul was nothing to do with methamphetamine.
Directly after that you contact Alekna Court Wilkinson Eden Hawkins Farrell Nalder Harvey Pyers Colville Johns Mears and Walker? …. yes.
That’s to supply them with methamphetamine? …. no most of those people I owe money to.
And by the next day? …. what day of the wk is that?
By the next day 6 Oct you contacted Mr Barker to see whether theres any more methamphetamine available don’t you? …. no, I do remember you playing that phone call on the 6th and that was to do with an element separator.
[14] It will be seen that the prosecutor did challenge Mr Sidwell that he had arranged at 6.11 pm to meet Barker, that Barker asked if he was going past, and that Mr Sidwell said he would “stop in in ten”. To all of this Mr Sidwell agreed. He also accepted that “directly after that” he had contacted 13 named individuals. His explanation was that his dealings with Barker had nothing to do with methamphetamine, and that he owed money to most of the other 13. Before us, he accepted that he said he would be round to see Barker, but explained that he did something else instead.
[15] It is apparent from the passage just quoted that Mr Sidwell well understood the significance of the 6.18 pm meeting to the Crown’s theory of the case. He chose not to deny the meeting, but rather to advance an explanation for it. Experienced counsel who served as amicus took no objection to the introduction of the meeting in evidence. We are not persuaded that Mr Sidwell was taken by surprise or that any unfairness was occasioned.
[16] In his reply submissions Mr Sidwell maintained that the 6.18 meeting was manufactured. He attached a jobsheet of Detective McBride’s which included the meeting, seeking to make different points; first, that the detective could not have seen him from her vantage point and, second, that he believed the detective was off duty at that time. The assertion that the detective could not see him as he drove into Mr Barker’s driveway is implausible, and we are in any event in no position to conclude from the aerial photos he invited us to examine that she could not do so. The jobsheet merely tends to confirm that the evidence was not made up. Nor are we prepared, as he suggested, to order that the police produce evidence of the hours she worked.
[17] Mr Sidwell’s other point was that Barker had plenty of opportunity that day to dispose of the methamphetamine he had acquired to others, who were more likely candidates as drug dealers than Mr Sidwell. He complained that the Sidwell timeline did not include Barker’s meetings with other contacts, and that by the time he met Barker at 9.05 pm Barker would have had nothing left.
[18] Again contrary to Mr Sidwell’s initial submissions, the jury did not receive the Sidwell timeline only. A master timeline was produced as exhibit 45. A slim-line version was also produced, containing the 6,000-odd entries relevant to the Crown case, and individual timelines were produced for each accused. That being so, there is no substance in Mr Sidwell’s initial submission that the timeline evidence unfairly highlighted his dealings with Barker and others. In his reply submissions he conceded he must have been wrong about the timelines, but said he did not realise there were different versions. He maintained that Barker might easily have disposed of all the methamphetamine earlier, when he dealt with other drug-using associates. The Crown’s case, however, was that Mr Sidwell’s behaviour after 6.18 pm was evidence of him supplying drugs to customers whom he had been holding at bay in recent days.
[19] Finally, Mr Sidwell attached to his submissions a letter from Barker saying that he had never sold methamphetamine to Mr Sidwell, although he had pleaded guilty to supplying it to him. The guilty plea was not evidence against Mr Sidwell. The letter is not evidence, and even if it were in affidavit form it gives no cause for concern that there may have been a miscarriage of justice.
The timelines and the interpretation of intercepted communications
[20] As is usual in such cases, the strength of the Crown case appears to have lain in the language used by drug suppliers and users over a considerable period of time and the pattern of conduct that the communications and observations revealed when considered alongside the physical evidence.
[21] Mr Sidwell challenged the timelines and transcripts of voice communications, emphasising occasional inconsistencies or repetition. We are not persuaded that there was any material inaccuracy, still less that the few errors identified disclose a pattern of police deceit justifying setting the timelines to one side. Nor did the jury rely solely on the timelines; they heard for themselves such of the recorded conversations as the parties wished to play. Mr Sidwell was cross-examined about these communications, apparently to good effect. Nothing that he was able to say persuaded us that the timelines were unreliable.
[22] Mr Sidwell also argued that the phone messages did not bear the interpretation placed on them. In particular, he argued that the terms “half hour” and “one hour” did not indicate drug dealing. However, the jury heard from Detective Murton, who qualified himself as an expert in the field. He expressed the opinion that the terms “quarter hour” and “half hour” meant a quarter and half a gram of methamphetamine respectively, saying that methamphetamine is the only drug normally sold in quarter-gram quantities. The jury also heard Mr Sidwell’s explanation about similar notations on the tick list; he said for example that he had meant to scrub out the number 2 and replace it with one, but instead put a slash between them. He also suggested that there is no reason why a person cannot buy a quarter ounce or pound of cannabis. It was for the jury to assess this evidence.
[23] Mr Sidwell also submitted that the police observations and timelines are all consistent with his defence, which is that he and Barker had a great deal to do with one another for many legitimate reasons. In his written submissions he advanced detailed explanations for many of these events. However, the defence was before the jury, and it was for them to assess it. The evidence was capable of supporting the inference that the Crown sought to draw; we refer in particular to the pattern of dealings after the 6.18 meeting. There were many short-term visitors to his property. On only two occasions were Mr Sidwell and Barker seen to work together on the property, and only three or four texts could be identified as relating to rent.
The scales
[24] Mr Sidwell’s property was searched pursuant to a search warrant on 14 October, and his 4WD was searched on 19 October, when he was arrested. The electronic scales and a used pipe were found in the vehicle. As noted above, he says that he acquired them from another person after the alleged drug dealing conspiracy had been brought to an end by the police intervention, and that he had intended to sell them. He maintained that he gave this explanation to Detective McMorran at the time but the detective gave false and inconsistent accounts in his evidence. In his deposition statement, which was read at trial, Detective McMorran stated that Mr Sidwell had claimed the scales had been “there” (in the back of the vehicle under a mattress) for months. In cross-examination Detective McMorran told the jury that Mr Sidwell had said the scales had been lying around his house and he was about to throw them out, although they had been found under the mattress in the vehicle. The inconsistency was put to him and he replied “I’ve got Sidwell comments that the scales and pipe were lying around his house and he was about to throw them out. No explanation why they were under his mattress in the truck.” It is evident that this statement was taken from the officer’s notes made at the time.
[25] We accept that there was an apparent inconsistency, but it was squarely before the jury. Mr Sidwell gave his explanation in evidence. The most likely explanation for the inconsistency is that the deposition statement was an incomplete summary of the encounter as recorded in the officer’s notes. It was for the jury to assess it and Mr Sidwell’s claim that he had only recently acquired the scales.
The tick list
[26] Detective Murton’s evidence was that the tick list was similar to others recording methamphetamine dealing. He opined that it referred to quarter, half and whole grams of the drug. Mr Sidwell’s evidence was that it was an old list of people for whom he had promised to copy a DVD of a movie. He declined to name the persons on the list. He was questioned about the list in cross-examination, and evidently did not acquit himself well. In his sentencing notes the Judge observed that Mr Sidwell’s answers under cross-examination failed to persuade him, and that he was satisfied that the tick list was indeed a record of methamphetamine supplies.
[27] Mr Sidwell’s submission in this Court was that the tick list was only a list of quantities of cannabis that friends wanted. He conceded that he was going to supply cannabis to them to pay for his own consumption of the drug to deal with a liver ailment and painful shoulder, and acknowledged that he made a mistake by denying any involvement in drug dealing at trial. The possibility that the jury might have accepted this account cannot be eliminated, but it does not follow that there has been a miscarriage of justice. It was his choice to give evidence that he now characterises as false.
The snaplock bags
[28] Mr Sidwell argued that the Crown mis-stated the size of a quantity of small snaplock bags found in his possession on 19 October. Four were found in his jacket pocket. He contended that the bags were too large to be point bags although they were described as such in evidence by Detectives Heath, Prentice and Parfitt, and accounted for some by saying they had been left at his house by people who shouted him methamphetamine. Others were said to be associated with trading in jewellery. He submitted that the police chose to call them point bags in an attempt to mislead the jury.
[29] However, the issue was raised at trial, where Mr Sidwell explained that the bags were necessary to hold toiletries and the like as he was living in his vehicle. He said that the bags were not point bags but were “120 by 100” and that the Crown photographs of the bags were misleading. He also cross-examined police witnesses about the bags, establishing that point bags (which term usually refers to bags holding a tenth of a gram) are smaller, but that larger bags, such as these, were consistent with dealing in larger quantities. The proposition that the bags found in his possession were not point bags was squarely before the jury; indeed, it appears to have been common ground. The point remains that the bags in his possession were evidence from which the inference might be drawn that he was engaged in drug dealing.
The cash
[30] Mr Sidwell invited us to accept that he had the cash in his possession on arrest on 19 October because he had been selling personal property, including tools and fitness and martial arts equipment. He conceded that he refused to identify the buyers when searched by the police, thinking the police would bother them. He identified for our benefit one such customer, a Mr Gibson, and suggested that he be interviewed.
[31] We reject these submissions. The significance that the Crown attached to the money was apparent at trial, but Mr Sidwell did not seek to corroborate his explanation by calling those to whom he allegedly sold such items.
Crown case “manufactured”
[32] We can see nothing in the evidence that supports Mr Sidwell’s claim that the police made up the evidence against him. On the contrary, the Crown case relied on telecommunications evidence, sightings, physical evidence, and Mr Sidwell’s own admissions, which together point to the conclusion that the verdicts are well founded. We are not prepared to accept Mr Sidwell’s explanation.
The search warrants
[33] The Crown obtained search warrants relating to Mr Sidwell’s residence and car and various cellphones. Mr Sidwell complained that he was not shown a warrant for the search of his residence until part way through the trial and that he was shown two different warrants at depositions. He further complains that the Judge was wrong to refuse to disclose the affidavit sworn in support of the applications.
[34] Turning to the execution of the warrant, Mr Sidwell complains that excessive force was used given his non-violent history, that he did not go to the police station willingly on 14 October, that he was not allowed to telephone a lawyer until he had been in custody for three days, and that he had to sleep on the floor because he was sharing a one-man cell.
[35] The Crown accepts that several draft search warrant applications were prepared but they were all disclosed. Only one application was sworn (on 11 October 2007) and filed, relating to the residence and the vehicle and Class A and C drugs. The supporting affidavits were not disclosed. The search and interception warrants were challenged before trial. Ronald Young J ordered further disclosure, and it does not appear that the challenge was taken further until August, when Dobson J reviewed the affidavit in support of the interception warrant, and ruled that it disclosed evidence more than sufficient to justify its issue.
[36] There is nothing sinister in the existence of draft applications in different form at differing stages of the investigation. The question is whether the application that was actually made was supported by evidence giving reasonable grounds for belief that the drug dealing offences had been committed and that evidence of the offences would be found. As to that, we have reviewed the supporting affidavits for the search and interception warrants. We agree with the conclusion reached by the trial Judge; the evidence in them justified the issue of the search and interception warrants. There were proper grounds for redacting parts of them.
[37] Mr Sidwell also complained about the production of five items produced in evidence and said to be beyond the scope of the search warrant. The items concerned included a camera, photos, a tenancy agreement, and a note containing names and calculations. The Judge held the evidence admissible, reasoning that the camera and photos might reveal evidence of drug dealing. The tenancy agreement was relevant to the conspiracy allegation involving Mr Sidwell and Barker. The note might afford evidence of drug dealing. We observe that the warrant authorised seizure of any thing which there was reasonable ground to believe would be evidence as to the commission of the offences. Nothing that Mr Sidwell has been able to say persuades us that the Judge was wrong in his conclusion that there were such reasonable grounds in relation to these items.
[38] Nor is there anything in the point that unnecessary force was used. The police employed the Armed Offenders Squad and a “distraction device” when they executed the warrant on 14 October. They did so because Mr Sidwell was known to be skilled in martial arts and there had been reports of weapons at the address. He had also been seen to assault a woman there while the police were watching the property. Nothing in Mr Sidwell’s submissions persuades us that the warrant was executed in bad faith, still less that the appropriate remedy is exclusion of the fruits of the searches.
[39] With respect to his treatment at the police station, the unchallenged evidence of Detective McMorran was that Mr Sidwell had his rights explained to him, said he understood, and did not ask for a lawyer. The Crown accepts that he had to share a single cell while in custody. That in itself cannot establish a miscarriage of justice.
Trial unfairness
[40] Mr Sidwell complained that because the trial had run over time, the Judge put him under pressure to hurry up and he was not allowed to explain everything relevant to his defence. Nor was he allowed to pursue an attack on “the police perjury and behaviour”. He did not identify any other line of defence that he was unable to advance.
[41] The Judge intervened on four occasions during Mr Sidwell’s evidence to remind him to focus on what was relevant. In summing up, he explained to the jury that they must not take it that he had formed an adverse view of Mr Sidwell; he was merely trying to keep the trial on an even keel and above all ensure Mr Sidwell a fair trial. That appears to us a fair description of the interventions, which in each case followed a rambling account of matters collateral to the case. For example, the first intervention followed Mr Sidwell’s explanation that a two-handed sword found in his possession was therapeutic for his shoulder, and the second occurred after he explained to the jury that the Nelson Evening Mail, which had reported the alleged conspiracy, was famous for never getting anything right. On each occasion the Judge reminded him to focus on what was relevant. The Judge also sought to assist by summing up what he understood Mr Sidwell to be saying.
[42] The Judge did not prevent Mr Sidwell from advancing his defence that the police had made it all up. He did conduct a voir dire into an allegation by Mr Sidwell that the police had lost or destroyed emails on his computer, explaining his decision to do so by saying that Mr Sidwell’s complaints risked detracting from the evidence. In a ruling of 5 November 2008 the Judge recorded Mr Sidwell’s view that the emails could establish extensive “wheeling and dealing” that explained his activities. The Judge found that the relevant police witness had not been challenged on the loss of the emails, which could be obtained from other sources (they were stored on a Telecom server, and details of his trading activities would be found on eBay and its payments system). He rejected a submission that the loss of the emails established underhand dealing by the police, or had anything to do with them. He ruled that that left Mr Sidwell with no basis for suggesting that the police had destroyed the emails, although he could complain that they were missing.
[43] The question whether the police had set about manufacturing or destroying evidence was ultimately a matter for the jury. The Judge’s ruling prevented Mr Sidwell from advancing one aspect of his defence, that the police had destroyed exculpatory evidence. However, no miscarriage resulted. The wider point that the police had acted dishonestly was squarely before the jury, and this allegation would require the jury to accept that still more police staff – the computer technicians – were party to a conspiracy to convict him. The Judge found that he failed to challenge credibly the evidence of a technician that the copying process would not affect the contents of the hard drive. And for the reasons given by the Judge, the evidence about the computer did not establish Mr Sidwell’s claim. On the contrary, the evidence did not establish that any emails had been lost, and the Crown had an answer to the claim; the emails concerned were stored not on the computer but on the Telecom server, and the details of his trading activities would also be found on eBay. For that reason, the police technicians would gain nothing from destroying any copies that he had saved to the computer. It is no answer to this point that because his account had been terminated Mr Sidwell might not have been able to get the emails from Telecom.
Jury deliberations
[44] Mr Sidwell did not appear to make anything of this point, which is difficult to understand. The jury deliberated for a long time and there is no evidence at all that they were placed under pressure to make a decision prematurely.
The conviction appeal: conclusion
[45] It is apparent that Mr Sidwell has spent much time reflecting on points that he might advance in support of his appeal. He invites us to substitute our view of the evidence for that of the jury, based on a selective, inaccurate and implausible reading of the trial record. His submissions overlook the cumulative effect of the Crown case. Nothing that he has said persuades us that the view the jury must have taken of the evidence, and his reliability, was wrong.
The sentence appeal
[46] When sentencing Mr Sidwell, the Judge found that the evidence established a little less than the extent of dealing alleged by the Crown, which analysed its evidence as establishing supply to more than ten different people and calculated that the amount supplied was approximately a quarter of an ounce. He was satisfied that at least part of the $1,100 in cash found, with four empty point bags, in Mr Sidwell’s possession was the proceeds of drug dealing. Of the cannabis charges, the most serious was Mr Sidwell’s involvement in the sale of a pound of cannabis to a Mr Purchess on 25 September 2007.
[47] The Judge took the methamphetamine charge as the lead sentence. It appeared to be common ground that the offence fell within Band 1 or the lower end of Band 2 of R v Fatu [2006] 2 NZLR 72 (CA). Mr Sidwell was a retailer, and repeated dealing in small amounts may attract a substantial sentence because he was the interface with users. Accordingly, he adopted a starting point of three years and three months’ imprisonment. Standing alone, the cannabis offending fell within the lower end of Category 2 in R v Terewi [1999] 3 NZLR 62 (CA). The Judge did not specify a starting point for the cannabis offending, but after adjustment for totality added 15 months to the starting point for the methamphetamine offending. That resulted in an overall starting point of four and a half years.
[48] The Judge declined to take previous convictions relating to drugs into account; the most recent was in 1993. He extended some leniency for Mr Sidwell’s poor health, reducing the starting point by six months. He noted the absence of any remorse.
[49] On appeal, Mr Sidwell made a number of points. He said that he had offered to plead guilty to the cannabis charges if the Crown dropped the methamphetamine charge, and he “fought fire with fire” when he realised how many lies the police were telling about him. That was the main reason for pleading not guilty to all the cannabis charges, the other being that in Court he did not know what he was doing. He expressed regret that he had denied involvement with cannabis, and explained that the cannabis helped with medical problems he was having. There is evidence that he suffered pain resulting from various ailments including a liver condition and injured shoulder. He expressed a wish that he could turn back the clock and maintains that he can now live without drugs.
[50] The conviction appeals having failed, we cannot accept Mr Sidwell’s rationale for pleading not guilty to any of the charges. Nor can he claim credit for remorse or his belated decision on appeal to admit his involvement in cannabis dealing; the latter is nothing more than a tactic to challenge his conviction on the methamphetamine charge. He chose to represent himself despite repeated encouragement to use counsel. Indeed, he conceded during the trial that he had made mistakes but insisted that he was determined to retain control, as the Judge recorded in a minute of 5 November 2008. It appears that is still the case.
[51] The starting points chosen by the Judge were orthodox, and the allowance for totality appropriate. We agree with the Judge that health was the only mitigating factor, Mr Sidwell having not only denied guilt throughout in the face of strong evidence but attributed the prosecution, against all the evidence, to police corruption. The end sentence was not manifestly excessive.
Decision
[52] The conviction and sentence appeals are dismissed.
Solicitors:
Crown Law Office, Wellington
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