Crosby v Police

[2002] SASC 213

CROSBY v POLICE
[2002] SASC 213

MAGISTRATES APPEAL

1. BLEBY J (ex tempore):    The applicant seeks an extension of time within which to lodge an appeal and to appeal against a magistrate’s decision to record a conviction.

2. The applicant appeared in the Elizabeth Magistrates Court on 11 April 2002 where he pleaded guilty to knowingly producing cannabis, namely six plants, contrary to s 32(1)(a) of the Controlled Substances Act 1984. The original charge involved the cultivation of 13 plants. The complaint was amended, by consent, whereupon the appellant pleaded guilty. The appellant was convicted by the magistrate and fined $350.

3. I turn to the application for an extension of time. The delay in commencing this appeal was not lengthy. The appeal was instituted only five days outside the 14 day period which is allowed under rule 96C.02.  Under r 3.04(d) of the Supreme Court Rules the Court has a discretion to extend the period of time if it thinks it just to do so.

4. The appellant returned to his home state of Queensland three days after this matter was dealt with in the Elizabeth Magistrates Court. He states that he has applied for a number of jobs in Queensland since his conviction. Many of his applications have been unsuccessful because he has been required to disclose the fact of his conviction.

5. The notice of appeal states that the applicant seeks an extension of time in which to lodge an appeal because “the practical consequences of a conviction have only recently become clear to the appellant”.  In his affidavit he deposes to the difficulty he has encountered in obtaining employment.  He adds:

   “I now realise that my prospects of obtaining employment are significantly reduced by having had a conviction recorded. The significance of the conviction only became apparent after my job applications were rejected.”

6. I have some difficulty in accepting that submission. The practical consequences of a conviction were certainly apparent to the applicant’s solicitor at the time he pleaded guilty to the offence. That was the main thrust of her submission to the Magistrate. His solicitor in her affidavit confirms that in her submission to the Magistrate, and in the presence of the applicant and, it must be presumed, on his instruction, she made the point that a conviction would hinder his attempts to obtain employment. It seems to me, therefore, that this ground alone cannot excuse subsequent delay. Even if the applicant’s awareness of the problem only subsequently arose that would be insufficient excuse to justify an extension:  Leathley v Police [1999] SASC 246, at [5].

7. No other grounds are put forward in support of the extension of time save, perhaps, the self-evident ground that the delay is relatively short. I, therefore, consider whether the appeal has any prospect of success, that being relevant to the question of extension of time:  Maurovic v  Police  (Doyle CJ, 7 August 1996, jdgmt S5771, unreported); Davies v SA Police (1993) 174 LSJS 8.

8. I consider that there is little merit in the argument on the substantive issue which is put forward on behalf of the applicant, and that the appeal is unlikely to succeed.

9. The only ground of the applicant’s appeal is:

   “The learned sentencing magistrate erred in failing to exercise his discretion to refrain from recording a conviction.”

10. Section 16 of the Criminal Law (Sentencing) Act 1988 provides a court with a discretionary power to impose a penalty without recording a conviction. It provides:

    “Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion -

    (a)    that the defendant is unlikely to commit such an offence again; and

    (b)   that, having regard to

    (i)     the character, antecedents, age or physical or mental condition of the defendant;

    (ii)    the fact that the offence was trifling; or

    (iii)   any other extenuating circumstances,

    good reason exists for not recording a conviction,

    the court may impose the penalty without recording a conviction.”

11. The first limb of s 16 is satisfied in this case, namely, that the Magistrate intended to impose a fine. The magistrate did, in fact, impose a fine, of $350, and also made an order that the appellant forfeit the cannabis and hydroponic equipment to the Crown.

12. However, there are other conditions precedent to the possible exercise of the discretion under s16. Section 16 cannot be applied unless the court is of the opinion “that the defendant is unlikely to commit such an offence again”. Although counsel for the appellant submitted to the Magistrate that the appellant had no previous record and that no conviction ought to be recorded, the Magistrate did not make any finding on the question of whether the appellant was unlikely to commit such an offence again”. In the absence of such a finding, unless the failure so to find was quite unreasonable or contrary to the evidence, there was no justification for the Magistrate to exercise the powers conferred by s 16.

13. There is no evidence before this Court which would justify this Court in forming such an opinion. Indeed, although the applicant pleaded guilty, he only did so after having been caught, as it were, red-handed, and after lying to the police about his purpose in cultivating the plants. He admitted to being a regular and reasonably heavy user of cannabis. I could not be satisfied that the applicant is unlikely to commit such an offence again. On that basis alone, the appeal would have to fail.

14. However, even if I were to form such an opinion, that does not require the Court to make a finding that no conviction ought to have been recorded. It would merely enliven the Court’s discretion to move to the second stage of the process and consider the possible application of the factors listed in par (b) of s 16, including character, antecedents, the physical or mental condition of the defendant, whether the offence was trifling or whether there are any other extenuating circumstances.

15. The assumption behind s 16 is that, in most cases, a conviction will be recorded. Section 16 provides the discretion as an exception to the normal rule:  Sims v Police [2000] SASC 102 and Roder v Police (2000) SASC 432. The matters in pars (a) and (b) of s 16 are conditions precedent to the exercise of the power. The Act is to be construed as a whole, and the exercise of the discretion in s 16 is not to be read in isolation from other sections of the Act, such as the matters listed in s 10.

16. The magistrate’s reasons in this case were brief. He said:

    “Defendant, I cannot see how I can refrain from recording a conviction. The complaint was amended by consent this day. Although I am prepared to sentence you on the basis you were growing plants for your own personal use, you were obviously growing far, far more than what you required for your own personal use.”

17. This finding is attacked by the applicant because, in an unreported discussion with counsel and, indeed, in the course of those remarks, the Magistrate made it clear that he considered that the quantity concerned could not be merely for the applicant’s own personal use. However, notwithstanding the Magistrate’s expressed doubts, the Magistrate did sentence the applicant on the basis that the plants were for his own use. That is made quite explicit in the reasons which he gave.

18. However, even if that complaint were made out, and there was an irrelevant consideration, and the exercise of the discretion did, on that account, miscarry, there is no proper basis on which I could act to apply the provisions of s 16 of the Criminal Law (Sentencing) Act. The offence was not trifling. An offence is trifling only if it is “so far out of the ordinary or typical case of its type that Parliament cannot have contemplated it as falling within the statutory prohibition, so as to invoke the full rigour of the law”:  Coles Myer Ltd v Catt (1992) 58 SASR 298 at 308. That is clearly not the case in the present circumstances. Section 45A(8)(d) of the Act and reg 4(3) of the Controlled Substances (Expiation of Simple Cannabis Offences) Regulations 1987 provide a regime for the expiation of offences involving the production, at the time in question, of no more than one cannabis plant. For what might be regarded as trifling for this type of offence, Parliament has provided a specified expiation fee. It cannot be said, therefore, that the production of six plants is a trifling offence.

19. Other than the applicant’s age, there is nothing in his character, antecedents or physical or mental condition, or any other extenuating circumstances that would require the exercise of the powers contained in s 16. Indeed, although, as I have said, there was a plea of guilty, it was accompanied by initial lying to the police for the reasons of the cultivation of the plants.

20. Therefore, it appears to me that, for a number of reasons, the appeal has no prospect of success.  Coupled with the failure to advance any reasonable grounds for the extension of time, the application for an extension of time must be refused, and the appeal is, therefore, dismissed.

21. There will be a further order that the appellant pay the respondent’s costs fixed at $150.