Dudley v Police No. Scgrg-99-236 Judgment No. S152

[1999] SASC 152

DUDLEY V POLICE

[1999] SASC 152
Magistrates Appeal
1 MARTIN J. (Ex tempore) This is an appeal against a fine of $800 imposed by a magistrate on a charge of producing cannabis contrary to s32(1)(e) of the Controlled Substances Act 1984.
2 The offending was discovered on 13 June 1998 when police searched premises in Salisbury North and discovered five cannabis plants growing in a shed.  The plants had been cultivated with the use of hydroponics and were close to maturity. 
3 The appellant was charged with producing five plants but also with possessing cannabis for sale, being cannabis harvested from those five and other plants grown by him.  The latter charge was dealt with in the District Court on a plea to possession of cannabis for supply.  It was accepted by the prosecution and the court that the appellant grew the cannabis for personal use but would have given excess cannabis to close friends.  He was fined $1,000. 
4 Relying on Offord v Queen (1991) 56 SASR 98, counsel for the appellant submitted the offence of producing cannabis should have been dealt with by the expiation notice pursuant to s45A of the Controlled Substances Act which would have resulted in an expiation fee of $150. In those circumstances where the prosecution failed to proceed pursuant to s45A, the appellant should not be penalised by the imposition of a fine greater than the expiation fee. The respondent has conceded the error and does not oppose this course.
5 The matter is indistinguishable from Offord.  There was no commercial element in the cultivation and the penalty imposed should not have exceeded the penalty which would have been exacted by the expiation notice. 
6 In Watson v Police, unreported judgment delivered 9 September 1998, SASC 6848, Perry J concluded that the amount to be paid including costs should not exceed $150.  I agree. 
7 The appeal is allowed.  The fine of $800 is set aside.  I impose a fine of $150.  There will be no order as to costs in the court below.  I allow one month to pay. 
8 The magistrate also ordered forfeiture of the hydroponic material used in the cultivation.  That order is set aside.  To the extent necessary I direct that the cannabis be forfeited, but there will be no order as to forfeiture of the hydroponics. 
9 I direct that the respondent pay the appellant's costs of this appeal fixed at $150.