Coleman v DPP

[2002] VSC 10

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8756 of 2002

JASON COLEMAN	Plaintiff
v.
THE DIRECTOR OF PUBLIC PROSECUTIONS AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 JANUARY 2002
DATE OF JUDGMENT:	15 FEBRUARY 2002
CASE MAY BE CITED AS:	COLEMAN v. THE DIRECTOR OF PUBLIC PROSECUTIONS AND ANOR.
MEDIUM NEUTRAL CITATION:	[2002] VSC 10

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CATCHWORDS: Certiorari – Allegation of want of jurisdiction – Offence punishable by imprisonment – Drugs, Poisons and Controlled Substances Act 1981 ss.73(1) and 75, Sentencing Act 1991 s.31(1) – No lack of jurisdiction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. S. Johns	Victoria Legal Aid
For the First Defendant	Mr. J.D. McArdle Q.C.	Solicitor for Public Prosecutions

HIS HONOUR:

1. On 11 January 2001 the plaintiff Jason Coleman appeared before the Magistrates' Court at Ballarat charged with one count of obtaining property by deception and one count of causing criminal damage.  He was convicted of each charge.  In respect of the charge of obtaining property by deception he was sentenced to a term of two months' imprisonment.  In respect of the  charge of causing criminal damage he was placed on a 12 month Community Based Order.

1. The plaintiff appealed to the County Court in respect of the convictions and sentences. The appeal came before his Honour Judge Crossley at Ballarat on 21 February 2001. As his Honour was required to do by the provisions of s.86(1)(a) of the Magistrates' Court Act 1989, his Honour set aside the orders of the Magistrates' Court then re-convicted the plaintiff of each charge. He then sentenced the plaintiff to a period of two months' imprisonment in respect of the charge of obtaining property by deception but wholly suspended the sentence for a period of 12 months, and placed the plaintiff on a Community Based Order in respect of the charge of causing criminal damage.

1. On 6 September 2001 the plaintiff appeared before the Magistrates' Court at Ballarat charged with possession of a drug of dependence, namely cannabis, and use of a drug of dependence namely cannabis.  The plaintiff pleaded guilty to both charges.

1. The prosecution then proceeded to read the following summary of the police evidence in relation to the charges to the Magistrate:

"Your Worship at approximately 7.25 a.m. on Friday 6 July of this year the police attended at the address of 32 Albert Street, Sebastopol and there executed a search warrant issued under the Drugs Enforcement Control Substances Act.  After gaining entry to the premises the police gave the defendant Coleman an opportunity to declare location of any illegal substances in the house prior to searching the property.  Coleman then removed from a cigarette packet that was sitting on the bedside table a piece of silver foil containing a small quantity of cannabis.  Police took possession of that, search of the address was conducted and located other items that were not relevant to this defendant and another male that resides at this address was charged with these items.  The defendant was conveyed back to the Ballarat Regional Response office and was interviewed in relation to the matter.  During the interview the defendant made full admissions in relation to the possession and use of cannabis and stated that the foil contained just under ½ gram of cannabis.  He stated that he bought it the previous night as a 1 gram stick for $20 from an unknown male at a Hotel in Ballarat.  He further stated that he smoked some of it the prior night at home from a bong and admitted that he was a regular user of cannabis and admitted that he smoked about a gram every one or two days as it helped him relax.  That’s the summary your Worship."

The plaintiff’s counsel agreed that the summary was fair.  After an exchange between the learned Magistrate and counsel for the plaintiff which is irrelevant for present purposes the following occurred:

"Counsel:Just in regard to the summary you probably already noted that the warrant and if not I will tell you now.  The warrant wasn’t actually issued with a view to searching any premises occupied by my client in particular the warrant was actually directed at the nominal occupier of the house.

Magistrate:Mr. Howe he’s got a modest amount of cannabis although he has a string of priors I would normally propose dealing with it by way of a fine.

Counsel:Certainly Sir his income is $160 Newstart allowance per week and on that basis that is also still undergoing counselling for drug problems and doing his best to get over this and I will say no more.

Magistrate:Thank you.  Stand up please Mr. Coleman.  Mr. Coleman I frequently say to people that it is still illegal in this State and I know a lot of people do smoke and a lot of people have it around the place but it is still illegal.  You have got enough priors and you have been to court often enough to well understand that.  However it is a very small amount and you were co-operative with the police and I will take into account your plea of guilty today.  You will be convicted on each of these matters and you will be fined an aggregate fine of $400 and you need time to pay that?

Counsel:      2 months stay.

Magistrate:  A stay of 2 months.

Counsel:      As the Court pleases."

Following his conviction in the Magistrates' Court the plaintiff was charged with breach of the sentence imposed upon him in the County Court.

1. The matter came before his Honour Judge Crossley on 21 November 2001.  The plaintiff admitted the breach whereupon his Honour confirmed that the plaintiff was “to serve 2 months' imprisonment forthwith”.

1. On 14 December 2001 the plaintiff caused an originating motion to be filed in this court whereby he seeks an order in the nature of certiorari quashing the order of the County Court of 21 November on the ground that in finding that the plaintiff had breached the suspended sentence previously imposed, the learned County Court Judge erred in law.

1. To understand the basis upon which that contention is made it is necessary first to have regard to the provisions of ss.73(1) and 75 of the Drugs, Poisons and Controlled Substances Act 1981 (the Drugs Act). The sections read:

"73.     Possession of a drug of dependence

(1)A person who without being authorized by or licensed under this Act or the regulations to do so has or attempts to have in his possession a drug of dependence is guilty of an indictable offence and liable –

(a)where the court is satisfied on the balance of probabilities that –

(i)the offence was committed in relation to a quantity of cannabis or tetrahydrocannabinol that is not more than the small quantity applicable to cannabis or tetra-hydrocannabinol;

(ii)the offence was not committed for any purpose related to trafficking in cannabis or tetrahydrocannabinol –

to a penalty of not more than 5 penalty units;

(b)subject to paragraph (a), where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in the drug of dependence – to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment;  or

(c)in any other case – to a penalty of not more than 400 penalty units or to level 6 imprisonment (5 years maximum) or to both that penalty and imprisonment."

"75.     Use of drug of dependence

A person who, without being authorized by or licensed under this Act or the regulations to do so uses or attempts to use a drug of dependence is guilty of an offence against this Act and liable –

(a)where the court is satisfied on the balance of probabilities that the offence was committed in relation to cannabis or tetrahydrocannabinol – to a penalty of not more than 5 penalty units;  and

(b)in any other case – to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment."

The small quantity of cannabis referred to in s.s.(a) of s.73(1) is 50.0 grams – see Part 2 of Schedule 11 of the Drugs Act.

1. It is argued that when the plaintiff was apprehended by the police and charged with the two drug offences in question the quantity of cannabis in his possession was less than 1 gram and was for his own use, not for any purpose related to trafficking in cannabis. In that situation it is said the plaintiff fell squarely within the provisions of s.s.(a) of s.73(1) and could not be sentenced to any term of imprisonment in respect of the charge of possession. Nor could he be sentenced to a term of imprisonment on the charge of using a drug of dependence. The next step in the argument requires a consideration of s.31(1) of the Sentencing Act 1991. The section reads:

"31.     Breach of order suspending sentence

(1)If at any time during the operational period of a suspended sentence of imprisonment, the offender commits, whether in or outside Victoria, another offence punishable by imprisonment, the offender is guilty of an offence for which he or she may be proceeded against on a charge filed by a prescribed person or a member of a prescribed class of persons."

For present purposes it is necessary to consider only the charge of possession.

1. What is argued on behalf of the plaintiff is that as the plaintiff could not be sentenced to a term of imprisonment in respect of the offence of possessing a drug of dependence because of the small quantity of cannabis in his possession and because of the use he proposed to make of the cannabis, he had not committed another offence punishable by imprisonment and his Honour erred in law in taking the view that he had committed such an offence.

1. Whether or not his Honour turned his mind to that aspect of the matter when the plaintiff appeared before him on 21 November 2001 is a moot point. I say that for the reason that the only record of what occurred before his Honour that day is the relevant entry in the records of the County Court. Not surprisingly it does not advert to the matter. Further, in his affidavit of 11 January sworn in support of the plaintiff’s present application the plaintiff’s solicitor has stated that on 10 January 2002 he was informed by counsel who appeared for the plaintiff both at the Magistrates' Court proceedings and the County Court proceedings that the issue of whether or not the offence alleged to be the breaching offence was “punishable by imprisonment” within the meaning of the Sentencing Act was not raised.

1. Nevertheless whether his Honour considered the matter or not, is the point now raised, valid.

1. In my opinion it is not.  I say that for the following reasons.

1. The plaintiff was charged with possession of a drug of dependence namely cannabis. Unless there is more that is an offence punishable by imprisonment. However, it is open to a person found guilty of possession to establish to a court's satisfaction that the offence was committed in relation to a quantity of cannabis that was not more than “the small quantity” applicable to cannabis as stipulated in the Drugs Act, and that the offence was not committed for any purpose related to trafficking in cannabis. The onus of so doing rests upon the defendant. See R. v. Pantorno[1].

   [1][1988] VR 195

1. If such a person does not satisfy the Court on the balance of probabilities of both matters then he or she is liable to be sentenced to a term of imprisonment.

1. In the present case there was no finding of the Magistrates' Court in respect of either matter.  That much is clear from the transcript of the proceedings before the Ballarat Magistrates' Court on 11 January 2001.  Further the issues were not argued before the County Court on 22 November 2001 and accordingly his Honour Judge Crossley made no finding in the matter.

1. In that situation I am not persuaded that his Honour made any error in the matter. Of more importance I am not persuaded that his Honour did not have jurisdiction in respect of the charge brought against the plaintiff pursuant to s.31 of the Sentencing Act.

1. The County Court had jurisdiction to hear and determine the charge brought pursuant to s.31 if the suspended sentence was imposed by the County Court as it was in this case. See s.31(3)(b)(ii).

1. The charge having been brought before the Court, it was then for the Court to determine whether it was made out.  In that regard the plaintiff admitted the breach and there was no debate in relation to it.  In my opinion it was open to his Honour to adopt the course he did in the matter and order that the plaintiff serve the period of imprisonment in question.

1. The originating motion will be dismissed.  I order that the plaintiff pay the first defendant’s costs of the proceeding including any reserved costs.

1. I order that the bail of the plaintiff be revoked forthwith.

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