Syme v R [2017] NZCA 228 (1 June 2017)

Last Updated: 15 June 2017

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)

[1] 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]
[2] 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]
[3] 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

[4] 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.
[5] 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.
[6] 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 when buying and selling drugs and allowed him to use her home to package and sometimes to sell the drugs from.
[7] On 29 August 2015 the police executed a search warrant at Ms Syme’s home. Mr Fung had in excess of $2,800 in cash on him and had methamphetamine with a combined weight of 4.09 grams in deal bags concealed about his body. Another two plastic bags containing further methamphetamine weighing a total of 2.47 grams were located in a bedroom. An associate of Mr Fung was at the address. He had a bag weighing approximately .54 grams of methamphetamine. Ms Syme was also present. She admitted they had all smoked some methamphetamine the previous night.

Ms Syme’s knowledge of Mr Fung’s activities

[8] While Ms Syme initially claimed she did not know about Mr Fung selling the drug from her home or using their vehicle for that purpose, by her guilty plea she acknowledged that she was aware of Mr Fung’s activity. That is also confirmed by the affidavit she swore for the purposes of her application for discharge. She accepted that:

[I]t became obvious that Kenny must have bought more drugs because he again was not coming home. Although I made it clear I was not happy about it, made him sleep in the spare room and hardly spoke to him, I didn’t specifically tell him to leave my house or give back my car keys.

[9] A text message she sent Mr Fung directly confirmed that she was aware he was dealing in drugs. On 16 August 2015 she said:

I will get through this one way or another but you and your drugs selling has only destroyed anything we did have ... I don’t see how u can fix this when they way your fixing this is going our peddling more drugs which is why we are in this shit ...

[10] While Ms Syme was upset by Mr Fung’s involvement with methamphetamine she did nothing to prevent Mr Fung from using her home and car for his drug dealing.

District Court decision

[11] Judge Roberts referred to Ms Syme’s affidavit in which she set out the difficulties a conviction would cause her. He accepted a conviction might have consequences for her. Ms Syme is an electrician. Her employer was aware of her offending. He provided a letter in which he suggested there might be difficulties for Ms Syme in the future. The Electrical Workers Registration Board was not aware of Ms Syme’s offending. The Judge accepted that when she applied for re-registration she would have to disclose her conviction and satisfy the Board that she was a fit and proper person. The Judge was also aware that Ms Syme’s mother was overseas in Australia and the conviction could possibly prevent her travelling to see her.
[12] Judge Roberts considered that employers, licensing authorities and countries were entitled to have the benefit of information that might impact on the fitness and suitability of a person for employment and country entry. He considered decisions whether to approve registration or travel were matters for those entities. While the Judge accepted there would be consequences for Ms Syme he did not consider those to be out of all proportion to the offence, noting the gravity of the offence, particularly the serious nature of the charge relating as it did to Class A drug offending. He also noted that Ms Syme had not taken any steps to prevent him from dealing from her home. She had not evicted him nor had she alerted police. He declined the application for discharge.

Discussion

[13] Ms Vidal submitted the District Court Judge had erred in:

• (a) his assessment of the gravity of the offending; and
• (b) his approach to the consequences of the conviction.

Gravity of the offending

[14] Ms Vidal submitted that the fact the offence involved a Class A drug was only one factor. She submitted that a broader approach should be taken which required an assessment of the offending itself and Ms Syme’s involvement in it. Ms Vidal referred to the decision of this Court in Rodrigo v Police and submitted the offending in that case was more serious, involving as it did, actual drug dealing.^[4]
[15] In Rodrigo this Court quashed a sentence of 10 months’ home detention and 200 hours’ community work and granted a discharge without conviction for the supply of the Class B drug Ritalin. However, as this Court noted in that case:

[18] Ordinarily drug dealing is too serious to grant a discharge without conviction but that is not to say that the test for granting one can never be met. Here the offending was low-level drug dealing for minimal profit by a young offender who was otherwise of good character, whose ADHD was undiagnosed and untreated, who has now taken steps to treat his condition, and who is unlikely to reoffend. These matters place the gravity of the offending at the low end. We consider that the consequences of conviction are out of all proportion to that offending. We consider the proper outcome in these circumstances is to discharge Mr Rodrigo without conviction.

[16] Mr Rodrigo was a university student who used Ritalin to assist him to stay awake to study. He had supplied it to three other students but only made a modest profit from one of the three he was selling to. In addition, in that case a co-offender, Mr Korin, had been discharged without conviction.
[17] Ms Syme’s case is quite different to the case of Rodrigo. While Ms Syme was not involved in selling or supplying it, the drug involved in this case was a Class A drug, methamphetamine. Ms Syme permitted Mr Fung to use both her home and car for his commercial drug dealing over the two week period of the charge. During that time Mr Fung dealt in at least four grams of methamphetamine which counsel accepted would have a value of approximately $4,000. Also, as the Judge observed, at the age of 30, Ms Syme was a woman of some maturity.
[18] Ms Vidal also referred to the case of R v Davis where a defendant, the wife of the cultivator, knew the cannabis was being grown but had no knowledge of the extent of the enterprise.^[5] She had assisted in her husband’s rehabilitation. The wife pleaded guilty and was convicted and discharged. Again that case is quite different. Ms Syme had direct knowledge of Mr Fung’s dealing in the present case 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. As noted she had also taken part in smoking the drug herself.
[19] It is also relevant the drug was the Class A drug methamphetamine which is a particularly destructive drug. The seriousness of the charge is indicated by the maximum penalty of 10 years’ imprisonment. Ms Syme’s offending enabled Mr Fung to continue dealing in it. She allowed her premises and car to be used with full knowledge of Mr Fung’s activity and over a period of at least two weeks. It was not a one-off occurrence. While we accept that Ms Syme’s offending may be explained in part by her relationship with Mr Fung, and she was angry with him and wanting him to stop, it is still serious enough to have justified the starting point the Judge took of 18 months’ imprisonment.

Consequences of the conviction

[20] Whether there may be consequences for Ms Syme in relation to her employment and ability to travel overseas is to a degree speculative. Her employer’s letter is equivocal as to whether a conviction would lead to loss of employment. He said he would have difficulty employing someone who has a conviction as he carries out work for clients who require police vetting. But he also acknowledged that Ms Syme was a well-respected member of staff, a team leader, and had staff under her direction. We also note that in the pre-sentence report the writer refers to the employer’s agreement to take Ms Syme off an after-hours roster should she be sentenced to community detention. That suggests he was prepared to support her, even in the event of a conviction. The Electrical Workers Registration Board confirmed in response to an anonymous inquiry that decisions are made on a “case by case” basis. It is appropriate that the Board have the full information before it when making the decision. No doubt that Board will take into account Ms Syme’s good work record, the support of her employer and her personal circumstances at the time of the offending.
[21] As for travel the Judge was correct to note there is no direct need for Ms Syme to travel outside New Zealand at present. Any decision on entry to Australia in the future will be made on a case by case basis.
[22] We are satisfied that the Judge was correct to decline to grant a discharge without conviction. It cannot be said that the consequences of conviction would be out of all proportion to the gravity of the offence in this case.

Result

[23] The appeal against conviction and sentence is dismissed.

Solicitors:
Southern Law, Invercargill for Appellant
Crown Law Office, Wellington for Respondent

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^[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.

^[2] R v Syme [2016] NZDC 13201.

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

^[4] Rodrigo v Police [2014] NZCA 68.

^[5] R v Davis HC Rotorua T02/3456, 28 March 2003.