Brown v Police No. Scgrg-98-1142 Judgment No. S6870

BROWN v POLICE
[1998] SASC 6870

Magistrates Appeal

Perry J (Ex tempore)

This is an appeal from a sentence of two months imprisonment imposed in the Magistrates Court sitting at Elizabeth on an admitted charge that the between 1 July 1997 and 16 September 1997 at Elizabeth South or another place in said State, the appellant knowingly sold a quantity of cannabis, a prohibited substance, to another person contrary to s32(i)(c) of the Controlled Substances Act 1984.
Upon the appellant's plea of guilty to that count, two other counts, namely production of cannabis and possession of a piece of equipment for use in connection with the smoking of cannabis, were withdrawn.
The appellant was represented by counsel in the court below, Mr Dixon, who also appeared on the hearing of the appeal before me.
In the Notice of Appeal, the appellant complains that the learned magistrate erred in failing to suspend the sentence of imprisonment, and further that the sentence imposed is manifestly excessive having regard to the circumstances of the offence and the appellant's antecedents.
I have had the benefit of an affidavit from the police prosecutor in which he summarises the facts as outlined to the learned sentencing magistrate.
It appears from that summary that on 16 September 1997, police officers attended at premises occupied by the appellant. On searching the premises, in a shed, they located eight rectangular pots containing nine cannabis plants. The plants had been cut and had started growing again, and were approximately six inches to a foot in height.
When questioned, the appellant admitted that from the plants, he had previously sold about a third of the crop. He stated that he had made about $1,600, and had only sold to friends who asked him for it. He further stated that he used the money to pay bills and a small amount of about $150 for the purchase of a secondhand car. He said that he did not sell the cannabis in large quantities, but sold only small amounts such as $25 bags.
The appellant has no prior convictions. He is a 28 year old man who has the sole custody of an eight year old daughter from a failed relationship. It is clear that the laying of the charge to which the appellant eventually pleaded guilty was only possible because of the admissions made by the appellant to the investigating police officers, and that is a strong point in the appellant's favour, as I was reminded by Mr Dixon.
That factor was however taken into account by the learned sentencing magistrate, who made the following observations during his remarks on sentence:
“Your plea of guilty and your co-operation with the police require and oblige the court to impose a lesser penalty properly than would otherwise be the case. My view is that it is not appropriate to order a non-custodial sentence. In making an order, as I shortly will, for your imprisonment, the aspect of the matter that requires, in my opinion, considerable reinforcement from the court is the issue of deterrence. Parliament has firmly set its face against people who are involved in the selling of drugs and that policy should be given credence to.”
He then proceeded to pronounce the sentence under appeal.
Mr Dixon has put everything which could possibly be advanced in favour of the appeal. He draws attention to the relative youth of the appellant, 28 years, the fact that there were no prior convictions, the plea of guilty, the full and frank admissions, including admissions as to selling, and the fact that the appellant is the sole carer for his eight year old daughter. He emphasised also that the offending is, as he put it, at the lower end of the scale of offending of this type.
He suggested that the learned magistrate failed to appreciate this in another passage from his remarks on sentencing, when he said:
“I don't personally find it helpful to delineate between the nature of the drugs that are associated with these offences of selling, but in traditional terms cannabis has been regarded as the least culpable of drugs available.”
What the magistrate personally found to be unhelpful was not strictly relevant to the sentencing process, so that I would have to agree that this part of his remarks were unfortunate. However the learned sentencing magistrate reminded himself that cannabis is generally regarded as the least “culpable” of available drugs. I am not prepared to accept that this experienced magistrate, in making the remark to which I have referred, should be taken to have fallen into error.
The maximum penalty which could be imposed summarily for this offence was a fine of $2,000 or two years imprisonment.
Counsel referred to the well known case of Manglesdorf [1], a decision of the Full Court. In the course of his judgment in that case, Doyle CJ, said [2]:
“... one also needs to bear in mind the seriousness of the present offence. ... this court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of possession of cannabis for sale when that takes place against a background of substantial involvement in cannabis trading. In my opinion, that is the case here in the sense that the quantity of cannabis indicated an intention to engage in substantial trading. The court has, on a number of occasions, revoked orders for suspension made in such cases despite the considerations which tell against doing so on an appeal by the Director of Public Prosecutions against sentence.”
[1] (1995) 66 SASR 60
[2] Ibid
Mr Dixon quite properly pointed out that the evidence here of any substantial quantity of cannabis was lacking, given that the number of plants was not large. But the court was faced with the concession made to the investigating police officers by the appellant that he had sold no less than $1,600 worth by amounts, the individual price of which was of the order of $25. This means that there were a relatively substantial number of sales over a period of time.
True it is that the appellant says that he sold to his friends only. But one can imagine that a volume of sales to a number of ready and willing friends, has little to distinguish it from ordinary commercial activity.
Be that as it may, the significance of the amount of $1,600 is that whether the sales were to friends or not, it does indicate a relatively substantial operation of selling.
I was referred also to the observations made by Doyle CJ, in the case of R v Gjoka [3], 1 July 1997, judgment number S6211. That was a case of selling heroin, but after referring to the discretion to suspend the sentence conferred by s38 of the Criminal Law Consolidation Act, Doyle CJ went on to say:
“It is appropriate for this court in particular cases to determine, as it did in Manglesdorf, that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of the certain type of offence and the appropriate approach to punishment for that offence might combine to mean that it will be very difficult to justify suspension.”
[3] Unreported, 1 July 1997, Judgment No. S6211
I refer also to the observations made by the Honourable Justice King in an unreported case, Thatcher v SA Police [4]. That was a case of sale of cannabis by a first offender. In the course of his judgment, King CJ said:
“The learned magistrate was correct in stating that an offence of this kind is one for which imprisonment was the usual penalty. The maximum penalty provided by law for the offence of possessing for sale a quantity of cannabis less than two kilograms is imprisonment for two years and a fine not exceeding $2,000. The sentence of one month imprisonment is therefore a moderate sentence when measured against the maximum prescribed by law. I cannot regard it as excessive, and even looking at the matter afresh for myself, I would regard it as the minimum sentence which could properly be imposed. . . . an immediate custodial sentence is the ordinary penalty for this offence.”
[4] 31 July 1997, Judgment No. S6289
Eventually, in the course of presenting his argument, Mr Dixon conceded that this was not a case where he could point to any error manifest in the learned sentencing magistrate's remarks on sentence. He submitted that this was in that category of case where, standing back from the sentence which was imposed and having regard to the surrounding circumstances, it was obvious that the sentencing discretion had miscarried.
I would concede that a custodial term may not have been applied by every magistrate or judge who might have sat on the case, but, with respect to Mr Dixon, I am unable to categorise it as one in which it is obvious that the sentencing discretion miscarried.
The cases to which I have referred emphasise the seriousness of this offence. That the appellant was engaged in a there was a moderately substantial business of selling, seems plain from the concession that of the order of $1,600 worth of cannabis was sold over a period of time. Whatever mitigating circumstances there were appear to have been taken into account by the learned sentencing magistrate.
The question of deterrence is the major factor to which regard must be had in sentencing for offences of this kind. Furthermore, the authorities make it clear that magistrates must be given some latitude to determine what seems to be appropriate in the particular area in which they regularly sit, by way of a sentence which the magistrate thinks is necessary in order to send the right signals to the community. This court should hesitate to overturn the exercise of a discretion by an experienced magistrate sitting in a particular locality where he or she has thought it appropriate in the interests of general deterrence and, given the seriousness of the offence, that a custodial term of imprisonment should be imposed.
In all the circumstances, for those reasons, in my opinion the appellant has not demonstrated either that the learned sentencing magistrate erred in failing to suspend the term of imprisonment which he ordered, or in demonstrating that the sentence was otherwise manifestly excessive.
The appeal is dismissed.
I direct that the appellant appear before a magistrate in the Magistrates Court within seven days of today to enable the sentence to be carried out.
No order as to costs.

[1998] SASC 6870

23 September 1998