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

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

Case: [2016] SASC 147
Decision Date: 8 September 2016

CaseChat Overview and Summary

In the Supreme Court of South Australia, Clarke v Police was heard in an appeal brought by the defendant against a sentence imposed by the Magistrates Court. The appellant was convicted of producing or cultivating cannabis and using electricity without authority. The sentence imposed was imprisonment for three months. The appellant appealed against the sentence, arguing that it should be suspended.

The court considered whether the sentence should be suspended. The appellant argued that the sentence should be suspended on the basis of his personal circumstances, including the commencement of a new business, his pending marriage, the support of his parents, and his ongoing commitment to overcome his depression. The court also considered the appellant’s criminal history and the need for general deterrence.

The court accepted that the appellant's offending was for personal use and was therefore less serious than drug offending for purposes involving or connected with the supply of controlled drugs to others. However, the court also considered the appellant's criminal history and the need for general deterrence. The court found that the appellant's offending was premeditated and that a period of imprisonment was necessary to mark the offending. However, the court also considered the appellant's personal circumstances and his prospects for the future. The court accepted that the appellant's prospects for the future were bright and that there was much hope that his contact with the criminal justice system was at an end. The court concluded that the sentence should be suspended on the condition that the appellant enter a bond to be of good behaviour for a period of 12 months.

The court allowed the appeal and quashed the sentence imposed by the Magistrates Court. The appellant was convicted and sentenced to a period of imprisonment of three months, subject to suspension upon entering a bond to be of good behaviour for a period of 12 months. The court also ordered that the appellant forfeit all of the items seized by South Australia Police.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HINTON J

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 orders1Appeal 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.

Ratio Decidendi

Legal Principle Established

Established by: HINTON J

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.