Criminal Law (SA)—Sentencing—Controlled substances—Knowing manufacture or production—Cannabis—Substantial maximum penalty—Simple cannabis offence when no commercial purpose involved in production—Expiation notice to be given before prosecution—Prosecution precluded by payment of nominal expiation fee—Prosecution not invalidated by failure to give notice—Simple cannabis offence where notice not given—Appropriate sentence—Controlled Substances Act 1984 (SA), ss. 32(1)(a), (5)(a), 45a(2).
Orders
Appeal allowed.
Set aside the order of the Court of Criminal Appeal of South Australia.
Remit the matter to that Court for determination of the appeal in accordance with the reasons for judgment of this Court.
Decisions
BRENNAN AND DAWSON JJ The appellant was charged on indictment before the District Court of South Australia on three counts. He pleaded guilty to the first count of producing cannabis contrary to s.32(1)(a) of the Controlled Substances Act 1984 (S.A.) ("the Act") and, on the second and third counts, the Crown accepted pleas of guilty to offences of simple possession of cannabis and cannabis resin contrary to s.31(1)(a) of the Act. The second and third counts have no relationship to the first count which arose out of the discovery of a number of cannabis plants that were being cultivated by the appellant near his residence at Belair in South Australia. The present appeal relates to the sentence of 12 months imprisonment which Chief Judge Brebner passed upon the appellant on the first count.
2. Section 32 of the Act provides, inter alia -
" (1) A person shall not knowingly - (a) manufacture or produce a drug of dependence or a prohibited substance; ...
(5) A person who contravenes this section shall be guilty of an offence and shall, subject to subsection (6), be liable to a penalty as follows: (a) where the substance the subject of the offence is
cannabis or cannabis resin - (i) if the quantity of the cannabis or cannabis resin involved in the commission of the offence equals or exceeds the amount prescribed in respect of cannabis or cannabis resin for the purposes of this subsection - a penalty of both a fine not exceeding $500,000 and imprisonment for a term not exceeding twenty-five years;
or (ii) in any other case - a penalty not exceeding $50,000 or imprisonment for ten years, or both".
As the quantity of cannabis "involved in the commission of the offence" was not proved to be more than the prescribed quantity, the maximum penalty to which the appellant was liable was that prescribed by par.(a)(ii) of s.32(5). The provisions of sub-s.(5) were subject to the provisions of sub-s.(6):
" Where a person is found guilty of an offence of producing cannabis but the court is satisfied that he produced the cannabis solely for his own smoking or consumption, the person shall be liable only to a penalty not exceeding five hundred dollars."
The appellant did not attempt to bring his case within the provisions…
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.
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Details
AGLC
Anderson v The Queen [1993] HCA 59
Case
[1993] HCA 59
Decision Date
CaseChat Overview and Summary
Anderson appealed his conviction for murder to the High Court of Australia. The central dispute concerned the admissibility of certain evidence obtained from the appellant, which the appellant argued was obtained in contravention of his common law rights.
The High Court was required to determine whether evidence obtained from the appellant, following his arrest and whilst he was in custody, was admissible in his trial. Specifically, the court considered whether the evidence was obtained in circumstances that rendered it unfair to the appellant, thereby justifying its exclusion in the exercise of the court's discretion.
The court affirmed the principle that a trial judge has a discretion to exclude evidence, even if legally obtained, if its admission would be unfair to the accused. This discretion is to be exercised by balancing the probative value of the evidence against its prejudicial effect. In this instance, the court found that the evidence in question was not obtained in circumstances that rendered its admission unfair, and therefore the conviction was upheld.