SINCLAIR v NEW ZEALAND POLICE [2021] NZHC 2788

SINCLAIR v NEW ZEALAND POLICE [2021] NZHC 2788 [18 October 2021]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2021-412-00032[2021] NZHC 2788BETWEEN ANGUS SINCLAIRAppellantAND NEW ZEALAND POLICERespondentHearing: 18 October 2021Appearances: M J Scally for Appellant (on instructions for A M Dawson)R D Smith for RespondentJudgment: 18 October 2021ORAL JUDGMENT OF GENDALL JIntroduction[1] The appellant, Mr Sinclair, was sentenced to 23 months' imprisonment byJudge Robinson on charges of selling cannabis,1 possessing cannabis for supply,2 anddriving while suspended.3[2] Mr Sinclair appeals that sentence. He seeks leave to file fresh evidence andcontends that the sentence itself is manifestly excessive and that he should have beensentenced 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).Facts[3] Turning now to the factual background in this matter, in June 2020 the policecommenced an investigation into the sale of cannabis within the Dunedin area.Mr Sinclair was identified as selling cannabis for an associate under the alias "MrGreen".[4] In August 2020 Mr Sinclair purchased the Mr Green business cell phone andclient base from an associate. He purchased an average of five ounces of cannabisweekly from local sources then packaged it into 2.3 g bags to sell for $50. Between1 August 2020 and 18 March 2021, he sold approximately 5 ounces of cannabis aweek, generating $80,000. He text messaged his clientele under the name "Mr D" toarrange pick-ups or deliveries, selling from prominent city locations on and off thestreet. He only sold to his clients though accepted new referrals on confirmation ofthe client's mobile number.[5] So far as the driving conviction is concerned, on 16 February 2021, Mr Sinclairwas issued with a 3-month demerit suspension notice and was suspended from drivinguntil 16 May 2021. At approximately 6 pm on 18 March 2021, he was seen drivinghis partner's vehicle through various streets in central Dunedin city.[6] Mr Sinclair stopped the vehicle on the side of the road meeting unknownpersons who approached his driver's door window. He exchanged a bag of cannabisfor $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 vehiclerevealed a snap lock container of 34, 2.3-3 g bags of cannabis and $375 cash. Thebags 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 $32,590in cash. The bags of cannabis have a value, when sold as $50 bags, of $3,250.[8] Mr Sinclair admitted the offending and stated it took him approximately13 weeks to pay his associate the $10,000 for the "Mr Green" business phone numberand client base. He stated he only sold cannabis in $50 bags and that the money foundby police was made from the sale of cannabis. He thought it was just over $20,000.He said he sold cannabis to support his family and mother. He admitted he was awarehis driver's license was suspended.District Court decision[9] Turning now to the District Court decision, Judge Robinson had previouslygiven Mr Sinclair a sentence indication of 23 months' imprisonment. He referredbriefly to that indication where he set out the background to Mr Sinclair's offendingand analysed the appropriate sentence.[10] In the sentence indication he placed the offending in band two of R v Terewi4and adopted a starting point of 36 months' imprisonment after referring to Harriederv R.5 The Judge declined to uplift the sentence for Mr Sinclair's relatively minorconviction history. He granted discounts of 25 per cent for Mr Sinclair's guilty plea,five per cent for addiction and five per cent for attending counselling. He signalled atthe sentence indication that he was not prepared to indicate a sentence of homedetention and that "it [seemed] to [him] that home detention may not be appropriatewhere the considerations of deterrence and denunciation are to the fore". He notedthe cases indicate deterrence and denunciation are generally prioritised in cases ofcommercial level drug dealing.[11] The Judge adopted this analysis from the sentence indication leading to an endsentence of 23 months' imprisonment. He then considered whether home detentionwas appropriate.[12] The Judge noted Mr Sinclair's age, at 27, submissions from counsel that homedetention can meet principles of deterrence and denunciation, that Mr Sinclair isemployed, that he has sought assistance for his cannabis use and that he was presentlyabstinent. In summary, the Judge found Mr Sinclair had made some positive changes.4 R v Terewi [1999] 3 NZLR 62 (CA).5 Harrieder v R [2020] NZHC 2548.[13] On the other hand, the Judge found this was commercial offending whichMr Sinclair engaged in for profit. He considered the principles of deterrence anddenunciation and that to meet these the sentence needed to be at a level that ensuredMr Sinclair and others who might contemplate purposefully entering into commerciallevel dealing in cannabis understood the outcome would be imprisonment. The Judgedid not think home detention offered sufficient deterrence.[14] Following that analysis, and after concluding the essential sentence, the Judgecommented that many people seem to think cannabis is a harmless drug. He noted thecomment in the pre-sentence report that Mr Sinclair had used cannabis to the extenthe suffered drug-induced psychosis. The Judge considered that aggravated hisoffending as Mr Sinclair knew the harm that can result from cannabis usage.Principles on appeal[15] Turning now to the principles to be applied on this appeal, home detention isan alternative to a short-term sentence of imprisonment.6 The court must be satisfiedthat the purposes for which the sentence is being imposed cannot be achieved by anyless restrictive sentence.7[16] An appeal court must focus on the identification of error, having regard to thediscretionary nature of the decision.8 From the Court of Appeal in Manikpersadh v Rthe appropriate approach in appeals of this type was set out in this way:9an appeal against a refusal to grant home detention does not providean opportunity to revisit or review the merits. The question is whether[the judge] erred in exercising his sentencing discretion: that is, did heapply an incorrect principle, give insufficient or excessive weight to afactor, or was he plainly wrong? Ms Guy Kidd for the Crown properlyaccepts that home detention can satisfy the objectives of deterrenceand denunciation, but to a degree. We are satisfied, in accordance withearlier authority in this Court, that the decision about whether homedetention will meet those objectives in a particular case is a strictlyevaluative exercise. It is a matter of judgment for the sentencingJudge to determine whether home detention is an adequate responseto the seriousness of the offending.6 Sentencing Act 2002, s 15A(1)(b).7 Section 15A(1)(a).8 Doolan v R [2011] NZCA 542 at [39].9 Manikpersadh v R [2011] NZCA 452 at [11].And there the Court also said:10the proper approach of an appellate Court in cases such as this is that "thechoice between home detention and a short sentence of imprisonment is theexercise of a fettered discretion, with appellate review focusing on theidentification of error, if any, in the court below."[17] In Fairbrother v R, the Court of Appeal stated:11[30] the judge must make a considered and principled choice betweenthe two forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them better qualifies asthe least restrictive sentence to impose taking into account all the purposes ofsentencing.[31] Sometimes, as this Court said in R v D (CA253/2008), that can provea very difficult exercise of judgment; and "the closer one gets to the dividingline, the more difficult it becomes to articulate reasons for preferring oneapproach to the other"Fresh evidence[18] I turn now to an issue concerning an application to adduce fresh evidence here.Ms Scally, counsel for Mr Sinclair, applied to adduce fresh evidence, namely, a recordof consultation between Mr Sinclair and his general practitioner in 2016. That recordstates Mr Sinclair:Started using cannabis heavily 5 years ago to block out anxiety/feelings onsocial situation, developed anxiety attacks around 6 weeks ago and felt thatcannabis wasn't helping, came off, panic attacks still persisting.[19] The Court of Appeal set out the test for the admission of fresh evidence in anappeal against sentence in Mark v R.12 It is the same as that for fresh evidence for aconviction appeal.13 The first question is whether the evidence is credible. If not, itwill not be admitted. The second is whether it is fresh, meaning whether or not it couldhave been presented to the sentencing court with reasonable diligence. If the evidenceis credible and fresh it should be admitted, unless it would have no impact. If it iscredible but not fresh the Court must assess its strength and potential impact.10 Manikpersadh v R, above n 9 at [12].11 Fairbrother v R [2013] NZCA 340.12 Mark v R [2019] NZCA 121 at [16].13 Lundy v R [[2013] UKPC 28, [2014] 2 NZLR 273.[20] The evidence in question here is credible in the sense that there is no reason todoubt the doctors record, though it relies on Mr Sinclair's self-reporting. In my view,however, the evidence is also credible as it is largely consistent with Mr Sinclair'ssubsequent statements to the pre-sentence report writer and plausible in the context ofhis cannabis use. There was also seemingly little motivation for Mr Sinclair to lie tohis doctor at the time. Mr Smith, for the Crown, however, quite properly notes thatMr Sinclair has not sworn an affidavit or otherwise provided evidence confirming thetruth of his statements to the doctor.[21] The evidence is not fresh, however, because it could have been obtained atsentencing with reasonable diligence. However, Mr Smith did accept that counsel forMr Sinclair could not have anticipated that his prior medical consultations would haveassumed prominence at sentencing (at least until the pre-sentence report had beenreceived). This, at its highest, means counsel was justified in not obtaining theevidence pre-sentencing, although they plainly could have.The relevance of the evidence[22] Turning now to the relevance of the evidence, ultimately whether the evidenceis fresh or not here, in my view, is irrelevant as it largely accords with the otherinformation before the Court and therefore would not have impacted the sentence.[23] Ms Scally endeavours to argue the information is important because of theJudge's comment that Mr Sinclair had suffered a "drug-induced psychosis". Ms Scallyelaborates that, in light of the information contained in the consultation record, thecomments in the pre-sentence report relied on by the Judge are incorrect. She says itis in the interests of justice for the Court to consider the evidence, so Mr Sinclair is atleast dealt with on correct information. Again, I do note, however, that Mr Sinclairhas not provided an affidavit nor a statement in support of these submissions.[24] Mr Smith has provided a signed letter from the pre-sentence report writer. Shestood by her statement that Mr Sinclair had suffered "psychotic symptoms" on thebasis of information he gave her. She stated, however, she did not intend to diagnosehim. She elaborated that Mr Sinclair told her of a significant and distressing eventthat motivated him to abstain from cannabis for a time. That fits into the context ofhis long-term cannabis use. She provided her hand-written notes made at the time sheinterviewed Mr Sinclair. The Court has no reason at all to doubt her credibility.[25] Where the record speaks it is consistent with the pre-sentence report. It isentirely silent, however, on whether or not Mr Sinclair suffered a psychotic event orpsychotic symptoms. This omission may be due to Mr Sinclair not reporting the eventto his doctor, or the event may have occurred after the record was made. In any event,the "fresh evidence" is insufficient to support Ms Scally's categorisation of the pre-sentence report as containing incorrect information. Accordingly, whether or not theevidence is admitted, and I accept it will be admitted here, it should not impact theoutcome of this appeal.The appeal[26] The sole ground of appeal here is that the Judge erred in not commuting thesentence to one of home detention. Ms Scally submitted in doing so the Judge erredin four ways, by:(a) focusing almost entirely on the need to denounce and deter theoffending;(b) not placing any weight on the need to rehabilitate Mr Sinclair,especially given his efforts to change;(c) finding that sentencing principles could not be met through a sentenceof home detention; and(d) relying on incorrect information about Mr Sinclair's experience withcannabis.[27] Ms Scally referred to the relevant principles expressed in the Court of Appealthat I note above. She analysed McLean v Police, among other cases. This was adecision of this Court where Churchman J found the Judge in the lower court erred byonly taking into account the purposes of deterrence and denunciation and in failing toproperly consider home detention as an option.14 I accept her submissions as to thegeneral principles governing the sentence of home detention.[28] Although the Court of Appeal has provided clear authority that home detentionis a deterrent sentence that can denounce offending, the question must ultimately bewhether or not it is sufficient deterrence and denunciation of the offending before theCourt. One would not ordinarily suggest, for example, that home detention will besufficient deterrence or denunciation for serious sexual offending or murder. Justbecause the sentence can address those purposes in one case, does not mean it can inanother. In my view, while it would be an error to state home detention is not adeterrent sentence on the basis of the Court of Appeal authority, it must not be an errorfor the Judge to consider whether home detention is sufficient deterrence ordenunciation in the circumstances before them. That is what the Judge did here.[29] This analysis accords with Mr Smith's submissions so I agree with him on thisissue.[30] Ms Scally is right, however, that the Judge was obliged to consider the otherpurposes of sentencing.15 In my view, he clearly did so, noting Mr Sinclair has madesome positive changes (the plain inference being that there is the potential forrehabilitation). This was, therefore, not a case where the Judge made an error of lawby ignoring relevant purposes of sentencing.[31] However, the Judge did find this was offending at the level requiringprioritisation of deterrence and denunciation. That was not, as I see it, an error, as theCourt of Appeal in R v Terewi confirmed, deterrence and denunciation are theparamount considerations when dealing with commercial level dealing.16 I agree withMr Smith that Mr Sinclair was not labouring under an addiction to the degree that hewas unable to make a rational choice whether or not to offend. In that instance itwould have been inappropriate to prioritise deterrence for the reasons set out in14 McLean v Police [2018] NZHC 102 at [47].15 Fairbrother v R, above n 11.16 R v Terewi, above n 4, at [13].Zhang v R and on the basis of the expert evidence considered there (in relation tomethamphetamine offending).17[32] Here, Mr Sinclair made $80,000 over the eight-month period he was sellingcannabis. That amounts to an annual income of $120,000. It indicates this was aserious operation, significantly, one which he had purchased as a going concern andfrom which Mr Sinclair derived considerable financial gain. In her submissions,Ms Scally accepted the offending here was serious and contained a commercialelement. Mr Sinclair had in fact purchased the cannabis operation and customers, justas one purchases some other kind of business. Such black-market economics warranta sentence of imprisonment and elevates the importance of the purposes of deterrenceand denunciation.[33] The preceding analysis means that I reject the first three grounds of appealwhich I note above at [26]. Although the Judge focused on deterrence anddenunciation, that was not an error. He did consider Mr Sinclair's rehabilitative steps(or efforts to change) and did not err in finding deterrence and denunciation could notbe met by home detention in this case.[34] In relation to the fourth ground of appeal, I agree with Mr Smith's analysishere. He submitted the issue was not whether or not Mr Sinclair's experienceamounted to "psychotic symptoms". Rather, it was whether Mr Sinclair was aware ofthe harm cannabis was having or had previously had on him. The Judge found that hehad been so aware. He must have been, as I see the position, as both the pre-sentencereport and doctor's record indicate this was the reason why he stopped using.Mr Smith submitted this was appropriately taken into account as an aggravating factoras Mr Sinclair was aware of the harm cannabis can have yet chose to deal it regardless.Mr Smith's characterisation is appropriate where he notes the Judge approachedsentencing on the basis "[Mr Sinclair] appreciated that cannabis was a potentiallyharmful substance and, notwithstanding that appreciation, sold the drug at a significantlevel for his own commercial gain". That was plainly relevant to the issue of whetherhome detention was appropriate.17 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [90], [92] and [148][35] Ms Scally has relayed to the Court the fact that Mr Sinclair says his time inprison has been very difficult for him. At one level, that indicates the effectiveness ofthe sentence imposed – he will think twice before committing offences of this natureagain (and has expressed his desire not to return to prison). She also relayedMr Sinclair's unwavering desire to change his life, indicating imprisonment has not infact displaced the purpose of rehabilitation.[36] Judge Robinson in the District Court did comment at the sentence indicationhearing that he was not sure home detention was appropriate, so counsel andMr Sinclair were accordingly on notice of this at the sentencing hearing. Mr Sinclair,as I see it, ought not to have expected that he was immediately entitled to a sentenceof home detention.Conclusion[37] In conclusion, for all the reasons I have outlined above, I find that Mr Sinclairhere has failed to demonstrate any error in Judge Robinson's sentencing decision. Thisappeal is dismissed....................................................Gendall JSolicitors:Public Defence Service, DunedinRPB Law, Dunedin