Day v Police - [2005] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DAY v POLICE
Judgment of The Honourable Justice Gray
2 June 2005
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
Appeal against conviction and sentence - appellant pleaded guilty in Magistrates Court to two counts of production of cannabis - magistrate conducted a disputed facts hearing - appeal on grounds that magistrate erred in requiring appellant to participate in disputed facts hearing when fact in dispute was not alleged by prosecution; that magistrate failed to correctly direct herself in relation to the evidentiary value of her rejection of the defence evidence - the finding that there was a commercial purpose to the cannabis production was unsafe and unsatisfactory and contrary to the evidence.
Discussion of section 32 of the Controlled Substances Act 1986 (SA) - consideration of principles regarding withdrawal of guilty pleas - discussion of principles regarding disputed facts hearings.
Held -appeal dismissed.
Controlled Substances Act 1984 (SA) s 32, s 44; Criminal Law (Sentencing) Act 1988 (SA) s 6, referred to.
R v Frantzis (1995) 66 SASR 558; Meissner v The Queen (1995) 184 CLR 132; Soteriou v Police (2000) 210 LSJS 217; R v Marchando (2000) 110 A Crim R 337; Block v SA Police (1994) 177 LSJS 103; O'Malley v French (1971) 2 SASR 110; R v Perre (1986) 41 SASR 105; R v Corbett (1999) 206 LSJS 125; R v Nemer (2003) 87 SASR 168; Law v Deed [1970] SASR 374; R v Smith (1993) 69 A Crim R 47; Lawson v Lee (1978) 19 SASR 442, considered.

DAY v POLICE
[2005] SASC 200
Magistrates Appeal
GRAY J:

This is an appeal against conviction and sentence.
This appeal raised a number of issues concerning the procedures and processes followed by the magistrate. Those issues included a challenge to the magistrate’s refusal to allow the appellant to withdraw a plea of guilty to one count and to the magistrate’s decision to conduct a disputed facts hearing. A challenge was also made to the magistrate’s findings as a result of that hearing.
History of the Proceedings
Cameron Philip Day, the appellant, was charged with two counts of producing cannabis contrary to section 32(1)(a) of the Controlled Substances Act 1984 (SA). The charges were as follows: between 3 and 11 March 2004 at Morphett Vale the appellant produced cannabis, namely eight plants; and between 1 and 13 March 2004 at Huntfield Heights produced cannabis, namely seven plants.
A hydroponic system was discovered at the Morphett Vale premises along with cannabis plants in the second and third bedrooms. A hydroponic system and plants were also discovered at the Huntfield Heights premises.
On 31 May 2004 the matter was heard in the Magistrates Court. The charges were read and the appellant, who was represented, entered guilty pleas to both counts. The facts of the matter were then outlined by the prosecutor to the court and the allegations were agreed by counsel for the appellant. These allegations included the fact that the appellant had told police that he owned both houses at Morphett Vale and Huntfield Heights at which the cannabis crops were found growing.
Counsel for the appellant submitted that there was no commerciality involved in either crop and that in relation to both charges the appellant should be sentenced on the basis that the crops were for his personal use.
The magistrate then indicated that the appellant and the police would need to give evidence about whether the cannabis was for personal or commercial use. The magistrate indicated that in the absence of such evidence she may be obliged to find a commercial aspect to the production of the cannabis.
On 13 August 2004 counsel for the appellant maintained that the cannabis was for personal use and that he was instructed to call evidence.
On 27 September 2004 a disputed fact hearing commenced. The appellant gave evidence. He said that the cannabis at Huntfield Heights belonged to Karli Ball and was for personal use. At this point the magistrate raised with counsel for the appellant the basis for the guilty pleas, as the effect of his evidence was that he was not guilty of the second charge. The following interchange took place:
In order for a properly informed, properly instructed plea of guilty to be struck out, I need to be persuaded that [the appellant], having had the benefit of legal advice, was under some misunderstanding as to the basis of the plea that he entered when he entered a guilty plea to producing cannabis. Is there any information that you wish to put before me in relation to that?
Counsel for the appellant then formally made application for the appellant to be granted leave to withdraw his plea of guilty to the second count. This was opposed by counsel for the Crown. The application was refused.
On 1 November 2004 further evidence was led. Ms Ball said that she installed the hydroponic system with the help of the appellant at the Huntfield Heights premises. She claimed that she smoked cannabis regularly and that the plants were intended for her personal use. Ms Ball said that both she and the appellant smoked cannabis obtained from the crop at Huntfield Heights.
On 3 December 2004 the magistrate found the appellant guilty of both charges.
Magistrate’s Ruling
Withdrawal of Plea
The application leave to withdraw the plea of guilty was refused on the ground that the appellant had not established a proper reason for setting aside the plea of guilty. The magistrate referred to the authorities of Frantzis[1] and Meissner[2], before refusing the application:
I consider in this case that [the appellant] pleaded guilty knowing the elements of the offence, knowing what the charge actually meant, with proper legal advice, and, for the reason that is adverted to by [Lander J in Meissner], I therefore consider that it is not appropriate to allow him to withdraw his plea and that application is refused.
[1] (1995) 66 SASR 558.
[2] (1995) 184 CLR 132 at 157.
The Disputed Facts Ruling
The magistrate explained that, having regard to the appellant’s guilty pleas, the matter had proceeded as a disputed facts hearing to determine whether or not there was any aspect of commerciality in the first crop and as to whether or not the second crop was solely for the defendant’s consumption.
The magistrate went on to summarise the Crown case, including the detail of the appellant’s financial affairs. The magistrate described the appellant as “an unimpressive witness” and that his account of events at trial as contradictory in itself and when compared with his record of interview. The magistrate rejected the appellant’s evidence. In particular, the magistrate rejected the appellant’s assertion that police advised him to plead guilty to both counts. She noted that the appellant had been consistently in receipt of legal advice.
The magistrate concluded:
Here the defendant owned two properties. Whether he lived there occasionally or for more than that at the relevant time, he was using one (Morphett Vale) as a place from growing two lots of plants. At the same time he was using a bedroom at Huntfield Heights to grow another hydroponic crop, was building a further ‘growing room’ in the garage at Huntfield Heights and had yet another plant growing outside in a pot at Huntfield Heights which he described in his Record of Interview as his ‘stash’.
Despite the fact that he was on unemployment benefits and paying $250 per fortnight on mortgages alone, he did not rent out the Morphett Vale property. It follows that it must have been economically preferable to him to use that property in effect as a greenhouse. In addition there was the $1,500 which he claimed to have saved during the relevant period as well as the costs associated with the birth of a child. He was also undertaking improvements to both houses. I therefore conclude that his motive for growing cannabis at Morphett Vale was, at least in part, of a commercial nature.
Ms Ball’s evidence was vague and unconvincing as well as being not consistent with the defendant’s evidence. It sounded very much as if she had been schooled to give her evidence in support of the defendant. She lacked any detailed knowledge about the equipment and the plants themselves. I reject her evidence that she had set up the hydroponic equipment at Huntfield Heights in its entirety. Where she appeared to be being honest was about the use that would be made of the plants at Huntfield Heights. I accept her evidence that the two of them would share those plants. It follows that I cannot be satisfied that those plants were solely for the defendant’s smoking or consumption.
The Morphett Vale plants were being grown at the same time as the Huntfield Heights plants which were to be shared. The Huntfield Heights hydroponically grown plants were yet to be harvested. The Morphett Vale plants were being harvested as at March 2003. Both the defendant and his partner would also have shared some of that cannabis from Morphett Vale as well. It follows that the plants at Morphett Vale were not grown solely for the defendant’s smoking or consumption.
The appropriate penalty for each of the charges must therefore be in accordance with section 32(5)B(a)(iii) of the Act.
In respect of count 1, a conviction was recorded and a fine of $1000 imposed. With respect to count 2 the magistrate recorded a conviction and imposed a sentence of three months imprisonment to be suspended upon the appellant’s entry into a $1000 good behaviour bond for 12 months. It was further ordered that the cannabis be forfeited to the Crown.
Controlled Substances Act 1984 (SA)
Section 32 of the Controlled Substances Act sets out the offences with which the appellant has been charged and matters relating to sentencing. Section 32 relevantly provides:
(1)     A person must not knowingly—
(a)     manufacture or produce a drug of dependence or a prohibited substance; or
(b)     take part in the manufacture or production of such a drug or substance; or
(c)     sell, supply or administer such a drug or substance to another person; or
(d)     take part in the sale, supply or administration of such a drug or substance to another person; or
(e)     have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
…
(4)Without limiting the generality of this section, a person takes part in the manufacture, production, sale, supply or administration of a drug of dependence or prohibited substance if the person—
(a)     takes, or participates in, any step, or causes any step to be taken, in the process of that manufacture, production, sale, supply or administration; or
(b)     provides or arranges finance for any such step in that process; or
(c)     provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which he or she is the owner, or in the management of which he or she participates.
(5)A person who contravenes this section is guilty of an offence and is, subject to subsection (6), liable to a penalty as follows:
…
B     For any other offence under this section:
(a)     where the substance the subject of the offence is cannabis or cannabis resin—
(i)if the quantity of the cannabis or cannabis resin involved in the commission of the offence equals or exceeds the amount prescribed in respect of cannabis or cannabis resin for the purposes of this subsection—a penalty of both a fine not exceeding $500 000 and imprisonment for a term not exceeding 25 years; or
(ii)if the quantity of cannabis or cannabis resin involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection but one-fifth or more of that amount—a penalty not exceeding $50 000 or imprisonment for 10 years, or both; or
(iii)if the quantity of cannabis or cannabis resin involved in the commission of the offence is less than one-fifth of the amount prescribed for the purposes of this subsection—a penalty not exceeding $2 000 or imprisonment for 2 years, or both;
…
(5a)The amounts of cannabis or cannabis resin prescribed for the purposes of subsection (5) are—
(a)     for cultivation of cannabis plants—100 plants or, if a lesser number is prescribed by regulation, that number;
(b)     for any other offence involving cannabis—10 kilograms or, if a lesser amount is prescribed by regulation, that amount;
(c)     for an offence involving cannabis resin—2.5 kilograms or, if a lesser amount is prescribed by regulation, that amount.
(6)Where a person is found guilty of an offence involving cultivation of not more than the prescribed number of cannabis plants and the court is satisfied that the person cultivated the plants solely for his or her own smoking or consumption, the person is liable only to a penalty not exceeding $500.
Section 44 of the Controlled Substances Act provides:
Matters to be considered when court fixes penalty
In determining the penalty to be imposed upon a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a)     the nature of the substance or goods involved in the commission of the offence; and
(b)     the quantity of the substance or goods involved in the commission of the offence; and
(c)     the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any drug of dependence or prohibited substance; and
(d)     in the case of an offence involving the manufacture, production, sale or supply of a drug of dependence or prohibited substance, or the possession of a drug of dependence or prohibited substance with intent to sell or supply it to another—
(i)the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if an application for forfeiture of property has been made under the Criminal Assets Confiscation Act 1996 in respect of that financial gain); and
(da)   in the case of an offence involving the sale, supply or administration, or taking part in the sale, supply or administration of a drug of dependence or prohibited substance to a child—whether the offence occurred within a school zone or at or near any other prescribed place; and
(db)   in the case of an offence of being in possession of a drug of dependence or a prohibited substance for the purpose of the sale, supply or administration of the drug or substance to another person (not being an offence committed within a school zone)—whether the offence occurred at or near any other prescribed place; and
(e)     any other relevant factor.
The Appeal
The grounds of appeal advanced by counsel for the appellant were as follows:
-    the magistrate erred in requiring the defendant to participate in a disputed facts hearing when the fact in the dispute (the commerciality of the cannabis production) was not alleged by the prosecution.
-    having rejected the defence evidence, the magistrate failed to direct herself correctly in relation to the evidentiary value of that rejection .
-    the finding that there was a commercial purpose to the cannabis production was unsafe and unsatisfactory and contrary to the evidence.
Setting Aside the Plea
Counsel for the appellant submitted that the magistrate’s refusal to permit a withdrawal of the appellant’s guilty plea constituted a miscarriage of justice. This was said to be the case even though the appellant had intentionally pleaded guilty.[3] It was further contended that justice required the setting aside of the plea where the magistrate’s attitude to the evidence, and its consequences in relation to the guilt of the offence charged, resulted in prejudice to the accused.
[3] Soteriou v Police (2000) 210 LSJS 217.
Counsel for the respondent submitted that an informed and deliberate plea of guilty should be treated as final unless the appellant could establish that a miscarriage of justice would result if the appellant were bound by the plea. It was said that the essential question was whether the appellant had discharged the onus to show that the plea was not attributable to a consciousness of guilt.
In Marchando,[4] the New South Wales Court of Criminal Appeal summarised the general principles relating to the withdrawal of guilty pleas[5]:
The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599 ... Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: Davies (1993) 19 MVR 481.
[4]Marchando (2000) 110 A Crim R 337.
[5](2000) 118 A Crim R 337 at 338.
Where a plea has been entered following legal advice, a withdrawal will only be warranted where it has been established that there has been a mistake, misunderstanding or improper inducement and there exists a substantial issue to be tried. In Block v Police[6] Olsson J observed:[7]
A perusal of the authorities suggests that, in general, where a plea has been entered after advice, a defendant will not be allowed to retract that plea unless two broad conditions are satisfied, namely:- (1) That it is shown that the plea was the product of a material mistake, a lack of understanding by the defendant of his legal rights, or an improper threat or inducement of some type; and, equally importantly, (2) That it is made to appear that, if the plea had not been entered, there would have been a substantial issue to have been tried which could, on the face of it, have had the potential to significantly affect the outcome.
In the instant case there is no doubt that, on the applicant’s own story he not only received legal advice, but also understood the nature of the charges and the fact that his plea admitted his guilt of them. As to this the comments made by Herring CJ and Adam J in their joint judgment in R v Murphy [1965] VR 187 at 189 would appear apposite, in so far as they are applicable to the present circumstances:-
It is not suggested by this ground that the applicant was not perfectly well aware that by pleading guilty she was admitting and intending to admit her guilt of the offences charged. All that can be said is that the advice given to her by her counsel was unduly pessimistic as to the consequences of her standing her trial, and unduly optimistic regarding the sentence upon her pleading guilty. These may provide the motives for the course she took, but that is all. Although in this ground she alleges that she was unduly influenced by her counsel, it is made clear enough from the evidence which we heard from her counsel and indeed from herself, that the decision to plead guilty was her own decision, taken after consultation, it seems, with her husband. The strength of the advice given would appear to be a matter between the applicant and her chosen legal representative, and in the absence perhaps of fraud, duress or the like, which is not suggested, cannot, we think, on any recognised principle afford ground for relief in this Court. After all, it is the duty of counsel to advise his clients of the course which he honestly believes in the exercise of his judgment to be in their own interests in all the circumstances, and it is for his clients to accept or reject that advice and, if thought fit, change their counsel. Furthermore, there would appear to be the strongest reasons based on policy for refusing to allow an appeal from a conviction based on a plea of guilty merely because the sentence of the Court has turned out to be more severe than an accused was led to expect. The proposition that an accused, after being awarded an unexpected and unwelcome sentence following upon his plea of guilty, may then on appeal be given the opportunity of a trial by jury on a plea of not guilty with the chance of an acquittal or perhaps a lighter sentence if found guilty, needs only to be stated to be denied. And this, it would seem, is in substance the proposition advanced by this ground of appeal.
[6] (1994) 177 LSJS 103.
[7] (1994) 177 LSJS 103 at 106.

In the present case, the appellant was in receipt of legal advice at the time of his guilty plea. His plea was intentional. There is no suggestion that the appellant was other than of sound mind and understanding.[8]
[8] Soteriou v Police (2000) 210 LSJS 217.
The magistrate appropriately addressed herself to the issue of the withdrawal of the plea. The appellant was represented at the time of the plea. The appellant was aware that by pleading guilty he admitted his guilt to the offence. He made a solemn confession to the essential elements of the offence. There was no suggestion that the appellant had not understood or appreciated the significance of his plea. Nothing was put before the magistrate to suggest that the appellant had been influenced by any threat or other inappropriate conduct. The rejection of the application was a course open to the magistrate on the evidence before the court and was within her discretion. The rejection of the application did not constitute a miscarriage of justice.
The Adequacy of Reasons
Counsel for the appellant submitted that the magistrate failed to provide adequate reasons for her findings on the disputed facts hearing.
It was acknowledged by the Crown that where it is necessary to resolve disputed facts for the purposes of sentencing, the court should state its findings on those facts.[9] As observed by the court in Lawson v Lee[10], it is necessary for the magistrate to disclose findings of fact on disputed facts hearings in order to determine how the magistrate arrived at his or her decision:[11]
… [Magistrates] ought to give reasons in which they state their findings on disputed issues. These reasons do not have to be long but they should be coherent, intelligible and comprehensive. A court of appeal will more readily uphold the ultimate finding (ie as to guilt or non-guilt) of a defendant if it is supported by such reason.
[9] R v Smith (1993) 69 A Crim R 47 at 48.
[10] (1978) 19 SASR 442.
[11] Lawson v Lee (1978) 19 SASR 442 at 44; Papps v Police (2000) 77 SASR 210
In the present case, the magistrate gave detailed reasons for her factual findings. She noted the prosecution’s obligation to prove beyond reasonable doubt all facts relied upon. The magistrate analysed the evidence, identified the evidence that she found reliable and that which she rejected, explained her reasons for those conclusions as well as her findings of fact and ultimate conclusions. There was no inadequacy in the magistrate’s reasons.
The Disputed Fact Hearing
The Procedure Followed
Counsel for the appellant submitted that on a plea of guilty, the court should proceed to sentence on the version of facts which, within the bounds of possibility, are most favourable to the accused.[12] It was accepted that it was open to the magistrate to reject the appellant’s version of the facts, however it was said that the magistrate should have been slow to interfere where the appellant’s version was plausibly open on the evidence, was accepted by the prosecution and was not inherently unbelievable or an affront to common sense.
[12] O’Malley v French (1971) 2 SASR 110.
Counsel contended that the magistrate’s findings of commerciality were unmaintainable in light of the evidence adduced by the appellant, particularly given the fact that the prosecution failed to assert that the production was commercial. It was said that the appellant’s version was not inherently unreliable or an affront to common sense and was reasonably open on the evidence. Further, it was submitted that in such circumstances, the magistrate ought not have continued to interfere in the adversarial process between prosecution and defence.
The sentencing process did not miscarry as a result of the magistrate requiring the appellant to participate in a disputed facts hearing. It was for the magistrate to determine, on the whole of the evidence, the basis upon which she should sentence the appellant, regardless of whether or not the evidence is disputed by the prosecution, as observed by King CJ in Perre:[13]
Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant’s role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. I reject completely the suggestion which surfaced faintly on this appeal and has been made to the Court of Criminal Appeal in other cases, that the judge is bound to act upon the interpretation or version put forward by the defence unless it is disputed by the prosecution. It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence. Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.
[13] (1986) 41 SASR 105 at 105-106.
These remarks were cited with approval by the court in Corbett,[14] and more recently in Nemer[15] where it was observed:[16]
[I]f the respondent wished to press his own version of events he needed to give evidence in support of it: R v Vecsey [1962] SASR 127; R v Maitland [1963] SASR 332; R v Perre (1986) 41 SASR 105. These were not matters of inference or interpretation, but concerned the primary facts of the offence.
[14] (1999) 206 LSJS 125 at [36].
[15] (2003) 87 SASR 168 at [105].
[16] (2003) 87 SASR 168.
It was open for the magistrate to reject the appellant’s assertion that there was no issue of commerciality. Despite the assertion at trial of counsel for the appellant that there was no commerciality involved in the growing of cannabis at either house, there was undisputed allegations before the court that the appellant owned both houses in which the cannabis was found to be growing, that one of the houses was vacant and that the appellant was not receiving any rent for that property. The court may reject a defendant’s explanation if, having heard that explanation, the court is of the view that it “passes the bounds of reasonable possibility”. As observed by Bray CJ in Law v Deed:[17]
[T]he court must within “the bounds of reasonable possibility” accept the defendant’s version …
The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving the defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call.
[17] [1970] SASR 374 to 378.
The magistrate’s approach to the question generally was in accordance with section 6 of the Criminal Law (Sentencing) Act1988 (SA) which provides:
For the purpose of determining sentence, a court—
(a) is not bound by the rules of evidence; and
(b) may inform itself on matters relevant to the determination as it thinks fit.
Although section 6 does not make the prosecution’s submissions on sentence unchallengeable, it allows the court to act on uncontested documentation where no objection has been taken.
The prosecution case at the disputed facts hearing consisted of documentary evidence tendered by consent. This evidence included affidavits from police officers, photographs taken at both addresses and a record of interview with the appellant conducted by Constable Logan on 13 March 2004. These matters were not disputed by the appellant. In addition, the allegations read by the prosecutor on 31 May 2004 were agreed by the appellant. Once this evidence and material was before the court, it was for the magistrate to determine an appropriate sentence, and in doing so determine the facts upon which the sentence should be based. It was open to the magistrate to proceed by way of a disputed facts hearing and, having heard and considered the evidence, to consider whether the appellant’s production of cannabis was for a commercial purpose.
Personal Circumstances of the Appellant
The appellant was in a de facto relationship with Ms Ball. The two lived together and took care of their child and Ms Ball’s child from a previous relationship. The appellant was the primary caregiver of the children and was unemployed. He received a child support allowance.
When giving evidence, the appellant provided the following information as to his financial situation at the relevant time:
-    he had been the owner of a property at Morphett Vale for six years;
-    he had been the owner of a property at Huntfield Heights for two years;
-    at the time he purchased the properties he was employed and borrowed 100% of the value of the Huntfield Heights property from a mortgage broker.   The Morphett Vale property was also the subject of a mortgage;
-    after purchasing the Huntfield Heights property he immediately rented it out to Ms Ball. Ms Ball is still living at the property and paying rent;
-    he suffered from back pain (degenerative disc disease of the lumbar spine and resultant instability) which was aggravated by his employment as a process worker;
-    when he was working as a process worker prior to December 2002 he was earning an annual wage of around $37,000.
-    when he moved into the Huntfield Heights premises with Ms Ball, he arranged for his mother to move into the Morphett Vale premises;
-    when he ceased employment he was receiving funds from a workers compensation payout, rent and the welfare benefits;
-    -he had also sold a Roman coin collection on eBay.
Commerciality of the Cannabis Production
Counsel for the appellant described the central issue at the disputed facts hearing as the appellant’s reasons for not having utilised the opportunity of renting out his Morphett Vale property. It was said that the magistrate considered that this failure indicated commerciality in relation to the production of cannabis. Counsel contended that the appellant was entitled to have his explanation for not renting the Morphett Vale property considered by the magistrate. Where there was a reasonable explanation offered by the appellant for not renting the property, counsel submitted it was not open for the magistrate to draw an adverse inference of commerciality of production.
Counsel for the appellant submitted that the magistrate did not make a positive finding that the production of cannabis was for a commercial purpose. Rather she inferred commerciality from the appellant’s failure to exploit the commercial opportunity arising from the possibility of renting the Morphett Vale property.
Counsel for the respondent rejected this analysis of the magistrate’s findings, instead submitting that the finding of commerciality flowed from the evidence adduced at trial, in particular, Ms Ball’s evidence that the cannabis was not solely for the consumption of the appellant. The findings of the magistrate as to commerciality have been earlier referred to, and also included the following:
The police evidence was tendered by consent. It was not challenged in any way. I accept it. Where there is conflict between the police evidence and that of the defendant and his witness, I indicate that I accept the evidence of the police beyond reasonable doubt and reject that of the defendant and his witness. I indicate that I am satisfied that he grew the plants, which are essentially two crops at Morphett Vale, when he was out of work. At this point, he was paying out $250 per fortnight on his two mortgages in excess of the rent he received. He was living for at least part of this period on the unemployment benefits. This does not take into account additional amounts he would have had to have spent on electricity, rates and living expenses. The fact that he was prepared in those circumstances to forgo renting out the Morphett Vale property leads me to conclude, together with the expensive and sophisticated hydroponic set-up there, that there was an aspect of commerciality involved in the crops. In this context I also take into account the lights and other expensive apparatus at both houses, together with the fact that cannabis had been harvested at both places and yet there were still three crops growing as at early March 2003. In addition to the authorities to which I have been referred, I consider that the case of DPP (SA) v McHugh unreported [2002] SASC 271 is relevant here.
Furthermore, even if I am wrong as to the ‘commerciality’ of the crop in the strict sense of indication of any sales, I note that section 44(d)(i) of the Act requires me to consider ‘the commercial or other motives…’ involved in the commission of the offence.
The magistrate had the advantage of seeing and hearing the witnesses. She made the following findings as to the evidence of the appellant and Ms Ball:
I indicate that I found the defendant to be an unimpressive witness. His story was contradictory both in itself and with what he had said in his Record of Interview. At times his responses were evasive and improbable. I reject his evidence. In particular I reject his evidence that the police gave him advice to plead guilty to both charges. He had consistently had legal advice. This matter was never raised until his cross-examination. I consider it to be a recent invention.
…
Ms Ball’s evidence was vague and unconvincing as well as being not consistent with the defendant’s evidence. It sounded very much as if she had been schooled to give her evidence in support of the defendant. She lacked any detailed knowledge about the equipment and the plants themselves.
The findings of the magistrate concerning commerciality were made having regard to the oral and documentary evidence. The findings as to commerciality were open to the magistrate. The evidence fully supported the magistrate’s conclusions.
Recent Invention
Counsel for the appellant submitted that it was not open for the magistrate to refuse to allow the appellant to withdraw his guilty plea on the grounds that the appellant’s account of the events surrounding his plea was a matter of recent invention. When cross-examined the appellant gave evidence that the police encouraged him to plead guilty to the offences with which he was charged. The magistrate found that this was the first occasion on which the appellant had alleged that the police in some way induced his guilty plea.
Counsel for the appellant submitted that the appellant’s allegation that the police had advised him to plead guilty was raised in correspondence between the appellant’s counsel and the prosecution prior to the disputed facts hearing. However that correspondence was not tendered before the magistrate. The topic of the letter was not raised in examination-in-chief nor was it mentioned during the appellant’s application to withdraw his guilty plea.
The letter referred to by counsel for the appellant was attached to an affidavit tendered during the hearing of the present appeal. The letter, from the appellant’s solicitor dated 29 June 2004, included the following:
I have taken instructions from Cameron Day in relation to his matter. He advises me that when the officers attended at the Huntfield Heights address … it was suggested that if he took responsibility for all of the cannabis plants it would save his girlfriend from getting into trouble. He did this and admitted his involvement with those plants.
Mr Day is still guilty of the offence in that he was the owner of the property and knew of the existence of the plants. He does not deny his involvement with the setting up of the cannabis in the house but the plants were for the personal use of his girlfriend Karli. It is evident from his record of interview that they [sic] system was set up months before he actually moved.
I dot not say that the officers have acted improperly nor has any of the evidence been misleading to the court. From the record of interview the issue of Karli’s involvement is not discussed. It is clear that officers have exercised their discretion not to report his girlfriend.
The contents of this letter are of concern. The author of the letter has duties as an officer of the court. The allegations of police inducement of the guilty plea ought to have been put before the magistrate by the appellant at the earliest opportunity. On the basis of the allegations contained in the letter, the guilty pleas themselves were misleading. The solicitor and the appellant must have been aware that the court was relying upon the evidence of the police interrogation of the appellant. Having regard to the appellant’s version of events, counsel was obliged to inform the court that to rely on such evidence would be misleading.
However, in relation to the present appeal, the contents of the letter appear to be of little consequence. The letter was not tendered in evidence before the magistrate. No further evidence was put before the court in an attempt to substantiate the allegations contained in the letter. The appellant did not provide this account of events during examination-in-chief. Police officers giving evidence were not challenged as to their account of the police interrogation or questioned in relation to the allegations contained in the letter. The suggestion that police had induced or encouraged his plea of guilty was first revealed to the court during cross-examination of the appellant. In these circumstances, it was entirely appropriate for the magistrate to describe the appellant’s account as one of recent invention.
Sentence
When considering an appeal against sentence, the appellant bears the onus of demonstrating that the sentencing process miscarried, either by an error of law or fact or by taking into account irrelevant matters or failing to consider material matters. In the present case, the approach taken and findings made by the magistrate were open on the material before her. In the circumstances it was entirely appropriate for the magistrate to call for sworn evidence in order to determine matters relevant to sentence. She directed herself appropriately as to the evidentiary value of this evidence and made findings that were open on this evidence. The sentencing process did not miscarry.
Once it is concluded that the findings made by the magistrate as to the commercial aspects of the appellant’s conduct should not be disturbed, it cannot be said that the sentences imposed were manifestly excessive. No error of sentencing principle has been identified, no relevant factors were overlooked, no irrelevant matters were considered. The sentences imposed were within the sentencing discretion of the magistrate.
Conclusion
The appeal is dismissed.