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…

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.

Continue reading Day v Police

Details

AGLC: Day v Police [2005] SASC 200
Case: [2005] SASC 200
Decision Date: 2 June 2005

CaseChat Overview and Summary

In Day v Police, the appellant, Day, appealed against his conviction and sentence in the Magistrates Court of South Australia for two counts of production of cannabis. The appeal was based on the contention that the magistrate erred in requiring Day to participate in a disputed facts hearing when the fact in dispute was not alleged by the prosecution, and that the magistrate failed to correctly direct herself regarding the evidentiary value of her rejection of the defence evidence. Specifically, the appeal argued that the finding of a commercial purpose to the cannabis production was unsafe and unsatisfactory and contrary to the evidence.

The legal issues before the court were whether the magistrate erred in conducting a disputed facts hearing without the prosecution alleging a fact in dispute, and whether the magistrate correctly assessed the evidentiary value of the rejected defence evidence. The court considered the principles regarding the withdrawal of guilty pleas and the conduct of disputed facts hearings under section 32 of the Controlled Substances Act 1986 (SA). The court examined whether the magistrate’s findings were supported by the evidence and whether the sentences imposed were within the sentencing discretion.

The court held that the appeal was dismissed. The court found that the magistrate was correct in requiring Day to participate in a disputed facts hearing, as the nature of the cannabis production was inherently a matter of fact to be determined by the court. The court also found that the magistrate correctly assessed the evidentiary value of the rejected defence evidence, and that the findings of a commercial purpose to the cannabis production were supported by the evidence. The court concluded that the sentences imposed were within the sentencing discretion of the magistrate and did not constitute an error of sentencing principle. Consequently, the appeal was dismissed, and the original conviction and sentence were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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