Director of Public Prosecutions (SA) v McHugh and McHugh No. Scciv-02-816, Scciv-02-817

[2002] SASC 271

DPP (SA) v McHUGH and McHUGH
[2002] SASC 271

Magistrates Court:  Criminal

1. PERRY J.  (ex tempore)     These are two appeals by the Director of Public Prosecutions against sentences imposed in the Magistrates Court sitting at Adelaide.

2. The respondents, who are brothers, were charged jointly on a complaint laid in that court, which alleged two offences under the Controlled Substances Act 1984: knowingly producing cannabis, a prohibited substance, such production being 19 plants or less, namely, six plants; and knowingly having cannabis, a prohibited substance, in their possession for the purpose of selling it to another person.

3. The respondents pleaded guilty to both offences.

4. After hearing submissions from counsel for the complainant and for the respondents the learned sentencing magistrate, without entering a conviction against either defendant, imposed a fine on each of them of $800.

5. The appellant advances two grounds of appeal:

   1.     That the sentences imposed by the learned magistrate were manifestly inadequate; and

   2.     The learned magistrate erred in not recording a conviction.

6. I have had the benefit of an affidavit sworn by Ms Emily Telfer, who appeared as counsel for the appellant in the court below. In brief, the circumstances narrated by her to the court were as follows.

7. On 9 March 2002, police attended at an address at Marion Road, Marion as a result of information given to Crime Stoppers. They spoke with the respondent Todd McHugh, who allowed them to enter the unit. In one of the rooms the police officers located six cannabis plants, which were being grown under hydroponic conditions. These are the plants which are the subject of count 1. In an adjacent room police located cannabis in two bins. One bin was full of cannabis waste and the other contained 973.5 grams of flowering cannabis head. It is that cannabis which was the subject of count 2.

8. The respondent Todd McHugh declined to answer any questions, but the respondent Paul McHugh informed the police that he would “sell cannabis here and there” to supplement his wages.

9. Ms Telfer tendered a book of photographs taken of the plant and equipment and of the cannabis, which I have had the benefit of perusing on the hearing of the appeal.

10. Neither of the respondents had any prior convictions. On the other hand, it is clear that they were engaged in a commercial operation, or at least an operation which had a commercial dimension to it.

11. Counsel for the respondents admitted in the court below that his clients smoked cannabis and that they would sell some of it to friends and associates. He submitted that they worked long hours in their family mechanics business and he emphasised their previous good character.

12. In the case of Paul McHugh, he submitted to the learned sentencing magistrate that he had a back problem and that he smoked cannabis which he found helped with that.

13. The respondent Todd McHugh is the younger of the two brothers, being 24 years of age, and is living with his parents. He also worked in the mechanical repair business and had been smoking cannabis for a number of years. It was submitted that the majority of the use of the cannabis was personal use for him and for his brother. He submitted that they were of the belief that they were entitled to grow three plants each.

14. Counsel for the respondents went on to submit that a fine was an appropriate penalty in all of the circumstances.

15. Following an intimation by the learned sentencing magistrate that he was proposing to deal with the matter without conviction, Ms Telfer submitted that the offences were commercial in nature and that a fine was not appropriate. She intimated, however, that the prosecution was “not seeking an immediate term of imprisonment, but that a fine would be an inadequate penalty”. She opposed the suggestion that the magistrate might proceed by not recording a conviction, and in response to that suggestion, she emphasised that the activities which had been proved against the respondents showed a degree of organisation and professionalism. The plants had been growing for sometime, which suggested that this was not a spur of the moment “or one-off deal in cannabis”.

16. Notwithstanding those submissions put on behalf of the prosecution, as I have indicated, the learned sentencing magistrate did not record a conviction and imposed a fine being the fine to which I have referred in each case.

17. Mr Muscat, who appeared for the appellant, submitted that it was not uncommon - indeed, it was the norm - to impose an immediate custodial sentence in a case of this kind, particularly when there was a commercial dimension to the operation. He referred to a number of authorities in support of that view, notably Mangelsdorf.[1]

    [1] (1995) 66 SASR 60. See also R v Taddeo (1993) 67 A Crim R 338; R v Harris, unreported CCA judgment No [2001] SASC 227; R v Barilla and Ors, unreported CCA judgment No [2002] SASC 106; R v Zahra, unreported CCA judgment No S7010 delivered 22 December 1998; R v Palumbo, unreported CCA judgment No [1999] SASC 416; Brown v Police, unreported judgment No S6870, Perry J, delivered 23 September 1998; Thatcher v Police, unreported judgment No S6289, King J, delivered 31 July 1997; R v Williamson, unreported CCA judgment No S6464, delivered 19 November 1997; R v Leung and Monaghan, unreported CCA judgment No [1999] SASC 130.

18. Although he was unable to point to any overt error in the short ex tempore remarks on sentence made by the learned magistrate, he submitted that this was a case where the inadequacy of the sentence was manifest, having regard to the course taken by the magistrate, particularly in failing to impose a conviction.

19. In support of his contentions, he submitted that this was a sophisticated hydroponic system which clearly would have yielded a substantial amount of cannabis. At the same time he acknowledged the heavy onus which falls on the Crown when it seeks to appeal against a sentence, and he referred to the oft quoted authority of this Court in Osenkowski.[2]

    [2] (1982) 30 SASR 212. See also Everett v Reg (1994) 181 CLR 295.

20. Mr Caldicott for the respondents submitted that the element of commerciality in this operation was minor; that his clients were hard-working young men with no prior record of offending; and that, in all the circumstances, although the sentence imposed might be thought to be modest, even light, it was within a proper exercise of the sentencing discretion.

21. After giving the matter careful consideration, I have reached the view that the learned sentencing magistrate failed to give sufficient weight to the obvious element of commerciality in the operation and its extent, having regard to the number of lights and the extent of the apparatus which was being used, together with the quantity of harvested and still-growing cannabis which was apparent on the entry by the police into the premises.

22. Certainly, in my view, his failure to record a conviction must be regarded as an error and one which ought to be corrected on appeal. It does not seem to me that this was an appropriate case in which to exercise the discretion to refrain from recording a conviction. To do so would be to place too little weight on the scope and the nature of the operation which was being jointly undertaken by the respondents.

23. I think also that, consistent with authority, this was a case where some short sentence of imprisonment should have been imposed and suspended. In my view, this case gets over the threshold which needs to be surmounted by the Crown in appealing against sentence, and that in all the circumstances, a sentence should be substituted which was in line with the observations which I have made.

24. The order will be that the appeal is allowed. The sentence under appeal is quashed. There is substituted for it the entry of a conviction and the imposition on each of the respondents of a sentence of imprisonment of six calendar months which is to be suspended upon their entry into a bond to be of good behaviour for a period of two years in their own recognizance, each of them of $1000.

25. In all the circumstances, I think it inappropriate, in view of the imposition of the suspended gaol term also to impose a fine. The order will be as I have indicated.

    [FOLLOWING FURTHER DISCUSSION WITH COUNSEL]

26. PERRY J.               I direct that the respondents present themselves within 14 days to the Magistrates Court sitting at Adelaide for the purpose of the entry into the bond which I have directed. I direct that there be no order as to the costs of the appeal.