Clarke v Police - [2016] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CLARKE v POLICE
Judgment of The Honourable Justice Hinton
8 September 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - OTHER MATTERS
Appeal against sentence. The appellant pleaded guilty to five counts of drug related offending. The Magistrate sentenced the appellant to the one term of imprisonment in respect of four of the five counts. The respondent conceded the appeal on the basis that one of four counts was not punishable by a term of imprisonment.
Held:
1. Appeal allowed and appellant resentenced to a period of imprisonment of 3 months suspended upon him entering a bond to be of good behaviour for a period of 12 months.
2. Having regard to the gravity of the offending and the appellant’s criminal history, a sentence of imprisonment is warranted. However, good reason exists to suspend that period of imprisonment.
Controlled Substances Act 1984 (SA) s 18(3); s 33K(1)(ab), s 33L(2)(a), s 33LA; Electricity Act 1996 (SA) s 85(1)(b); Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A, s 38(1), referred to.
R v O’Toole [2013] SASCFC 18, applied.
Sladic v Proud [2013] ACTSC 232; Pfeiffer v R [2009] NSWCCA 145, distinguished.

CLARKE v POLICE
[2016] SASC 147
Magistrates Appeal
HINTON J.
Introduction

On 3 June 2016, the appellant, Luke Francis Clarke, pleaded guilty in the Magistrates Court of South Australia to the following offences all charged within the one Complaint:
1Interfere with a meter for measuring the consumption of electricity supplied by an electricity entity, contrary to s 85(1)(b) of the Electricity Act 1996 (SA);
2Possess prescribed equipment without reasonable excuse, contrary to s 33LA of the Controlled Substances Act 1984 (SA);
3Cultivate a cannabis plant by artificially enhanced cultivation, contrary to s 33K(1)(ab) of the Controlled Substances Act 1984 (SA);
4Possess cannabis, contrary to s 33L(2)(a) of the Controlled Substances Act 1984 (SA); and
5Possess a prescription drug without a prescription, contrary to s 18(3) of the Controlled Substances Act 1984 (SA).
Pursuant, purportedly, to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) the appellant was sentenced to one penalty of six months imprisonment for the first four of the above offences, being counts 1 to 4, suspended upon him entering into a bond in the amount of $100 to be of good behaviour for two years. Subsequently, the appellant appealed to this Court against that sentence on the ground that it was manifestly excessive.
It may now be taken as settled that where a global term of imprisonment is imposed pursuant to s 18A of the Sentencing Act, the individual offences must all be punishable by a term of imprisonment.[1] Here the fourth offence referred to above, that of possess cannabis contrary to s 33L(2)(a) of the Controlled Substances Act 1984 (SA), is not punishable by imprisonment. Accordingly, the respondent rightly conceded that the appeal must be allowed.
[1] See R v O’Toole [2013] SASCFC 18 at [23]-[30] and the authorities referred to therein.
The parties submitted that upon allowing the appeal it was appropriate for this Court to sentence the appellant afresh. I agree.
In respect of counts 1, 2 and 3 of the Complaint, I sentence the appellant to a period of imprisonment of three months suspended upon him entering a bond to be of good behaviour for a period of 12 months. In respect of count 4 and count 5 of the Complaint, I convict the appellant but discharge him without further penalty.
My reasons follow.
The circumstances of the offending
On 8 September 2015, an employee of SA Power Networks attended the home of the appellant in Morphett Vale to conduct an electrical safety audit on an alteration job that was being carried out at that address. Upon inspection of the alteration job, the SA Power Networks employee identified that the appellant’s electrical mains had been diverted illegally. The employee then sought access to the premises to complete his audit but was denied by the appellant who stated that he did not have the requisite key for the relevant part of the property.
The SA Power Networks employee then called the police.
While waiting for the police to attend, the employee observed the appellant use a key to access the area to which the diverted electricity had been connected and remove a medium sized suitcase. The appellant left the premises with the suitcase. He returned ten minutes later.
The police attended the Morphett Vale address and, exercising their authority pursuant to a general search warrant, searched the premises. The police observed that two rooms in the house had been modified to grow cannabis hydroponically. In one of those rooms four juvenile plants were growing and there were indications of a previous crop having been harvested.
The illegal diversion of the electricity supply is the subject of count 1.
The police seized all hydroponic equipment located at the house, being, 27 globes, 33 ballast boxes, 32 light shades and 7 charcoal filters. This equipment is the subject of count 2.
The police also seized the four juvenile cannabis plants in addition to 201 grams of dry cannabis material comprised of leaf and stem pieces. Those seizures are the subject of counts 3 and 4 respectively.
In the course of searching the premises the police located two bottles containing the anabolic steroid, Clenbuterol. That substance is subject of count 5.
Counsel for the appellant submitted that the appellant had been given the hydroponic equipment and did not pay for it. Counsel further submitted that, in this respect, the appellant’s offending could be seen as opportunistic. Counsel contended that the grow rooms were small and that they had been set up by the appellant himself using his skills as a qualified tradesperson. The appellant had also diverted the electricity himself. Counsel for the appellant submitted that the cannabis was grown for personal use only. Counsel conceded that the dried cannabis seized by police was from a crop previously grown by the appellant but submitted that this was only significant in the sense that the appellant wanted to develop a continuous supply of cannabis for himself.
On the hearing of this appeal, the respondent accepted that the cultivation of cannabis engaged in by the appellant was for the purposes of his own use and to ensure a continuous supply for his own use.
The appellant’s personal history and criminal antecedents
I adopt the observations of the Magistrate where he said:
In terms of your personal circumstances, as we have just heard, you are 38, have a supportive, loving family and enjoyed a good education at a private school. You are a qualified carpenter and joiner and have, until relatively recently, had a pretty good work history.
The appellant is engaged and intends to marry early in 2017. His fiancé and his parents attended Court demonstrating their support for him.
I was informed that the appellant and a partner have recently started their own business completing office fitouts. The business is in its infancy and yet to turn a profit. Consequently, the appellant is also working part-time as a trade assistant.
From the character references submitted on his behalf, it is clear that he is a hard worker.
Much time in the course of submissions was devoted to two issues; what I am to make of the appellant’s antecedents and the significance of his on-going battle with depression.
The appellant’s offending history dates back to 1995 when he first appeared in the Children’s Court for the offence of larceny. Since then and until 2009 he has relatively frequently appeared in the Magistrates Court predominantly for driving related offences, on occasions alcohol related. That said, in that same time frame there are convictions for a number of offences of violence. He has had the benefit of a suspended sentence of imprisonment on a number of occasions. It appears that he responded to supervision in that he has never been subject to an application to enforce a breached bond. In 2007, he served a period of one month of imprisonment.
His antecedents include charges in 2001 of producing a controlled substance and possessing a nominate controlled substance. The subject substance was cannabis. The appellant was fined $200 for this offending and no convictions were recorded.
Counsel for the appellant submitted that the appellant has no recent criminal history and, in that regard, referred me to the authorities of Sladic v Proud[2] and Pfeiffer v R.[3] The factual circumstances in each of those cases are materially different to the circumstances of this case. In my view, those cases are of no assistance.
[2] [2013] ACTSC 232.
[3] [2009] NSWCCA 145.
I accept that it is significant that, with the exception of the offending subject of this appeal, since 2009 the appellant has only committed one offence; in 2012 being entering or remaining on licensed premises when he had been barred. His antecedents are suggestive of an attitudinal change in recent years, save for his lapse in 2012 and in relation the offending subject of this appeal.
Counsel for the appellant submitted that the appellant had battled with depression for a number of years and has used alcohol as a means of self-medication. The combination, it was submitted, explains much of his criminal history. More recently he has turned to cannabis for relief.
I was provided with a letter from a psychiatrist, Nick Ford, written to the appellant’s general practitioner. In that letter Dr Ford confirms that the appellant suffers Major Depression for which a number of medical solutions have been trialled. I was informed that such treatment has extended to the appellant undergoing electroconvulsive therapy. He is currently on medication. Dr Ford also refers to the appellant’s excessive alcohol consumption.
I was advised that the appellant has sought out and been in the care of a psychologist over the past eight years. There appears to be a correlation between that care and the reduction in his offending since 2009.
The maximum penalties
The maximum penalties for the offences referred to in paragraph [1] above are, respectively:
1$20,000 or imprisonment for 2 years.
2$10,000 or imprisonment for 2 years or both.
3$2,000 or imprisonment for 2 years or both.
4$500.
5$10,000 or imprisonment for 2 years.
Consideration
Counsel for the appellant conceded that s 11 of the Sentencing Act was enlivened as a result of the appellant’s criminal history. However, he urged me to exercise my discretion not to impose a sentence of imprisonment.
I accept that the appellant’s offending was for personal use and therefore less serious than drug offending for purposes involving or connected with the supply of controlled drugs to others. I also acknowledge that the appellant suffers from Major Depression. Depression can be a most debilitating disease. Some insight into the nature of the appellant’s battle can be gleaned from the content of the reference provided by his father. Further, I do not overlook the correlation between the time during which the appellant has been in the care of a psychologist and the reduction in his offending.
The offending is serious. All the more so because the appellant has had the benefit of leniency extended to him in the past. Further, whilst his prior cannabis related offending was minor and is now dated, it cannot be said that the warning it provided, indeed the warning provided by his involvement with the courts more generally, would have escaped him. Further again, his diversion of electricity bespeaks premeditation – not only did he know that what he was doing was unlawful and decided to do it nonetheless, but he set about taking steps to avoid detection.
Depression can be debilitating and it, coupled with acts of self-medication may explain much, but they cannot mitigate premeditated offending that continues over a not insubstantial period of time.
General deterrence remains a significant factor in determining the appropriate penalty in this case despite the absence of any intent to supply. Parliament having criminalised the conduct here engaged in, the courts must act to deter those who would commit such offences.
I accept that the appellant’s prospects for the future are bright. With the support of his fiancé, his parents and his treating physicians there is much hope that his contact with the criminal justice system is at an end.
I have given counsel for the appellant’s submission earnest consideration. At the end of the day, the deliberate nature of the offending in the light of the appellant’s antecedents prevents me from acceding to the submission that a fine would suffice. In my view, the offending must be marked by a period of imprisonment.
Pursuant to s 18A of the Sentencing Act I impose one penalty in respect of counts 1, 2 and 3. Counsel agree that the appellant is entitled to a discount for his pleas of guilty in the order of 40%. But for the appellant’s pleas of guilty I would have imposed a sentence of five months imprisonment. I reduce that term to three months on account of the appellant’s pleas.
Having regard to the penalty imposed for counts 1, 2 and 3, I record a conviction in respect of counts 4 and 5 but discharge the appellant without further penalty.
I consider the commencement of his new business, his pending marriage, the support of his parents and his ongoing commitment with the assistance of his treating physicians to overcome his depression, provide good reason to suspend the sentence of imprisonment pursuant to s 38(1) of the Sentencing Act. I do so on the condition that the appellant enter a bond to be of good behaviour for a period of 12 months.
Conclusion and orders
1Appeal allowed.
2The sentence imposed by Magistrates Court on 3 June 2016 is quashed.
3In respect of counts 1, 2 and 3 of the Complaint, the appellant is convicted and sentenced to a period of imprisonment of 3 months.
4In respect of Count 4, as amended, and Count 5 of the Complaint, the appellant is convicted without further penalty.
5The sentence subject of order 3 is suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months.
6I order that the appellant forfeit all of the items seized by South Australia Police on 8 September 2015.