Garland v Police No. Scciv-02-691

[2002] SASC 282

GARLAND  v  POLICE
[2002] SASC 282

Magistrates Appeal (Ex tempore)

1. DUGGAN J.         The appellant was convicted in the Mount Barker Magistrates Court of admitted charges of possession of cannabis for sale, possession of amphetamine and possession of equipment for use in smoking cannabis.  The magistrate imposed one penalty on all charges pursuant to the Criminal Law (Sentencing) Act, (1988) s 18A. He sentenced the appellant to imprisonment for six months and suspended the sentence upon the appellant entering into a bond in the sum of $400 to be of good behaviour for a period of two years.

2. The appeal is against conviction on the charge of possession of amphetamine and against sentence generally.  The respondent has conceded that the appeal must be allowed in both respects.  The substance which was the subject of the charge of possessing amphetamine was analysed at the request of the appellant after the hearing at the Magistrates Court.  The analysis revealed that the substance was not amphetamine or any other controlled substance.

3. The result of the analysis was admitted by agreement at the hearing before me and, as it establishes that the appellant did not commit this particular offence, the conviction in respect of it will be set aside.

4. As a consequence the global sentence imposed by the magistrate must also be set aside.  I should add that there is a further reason why the sentence must be set aside.  The offence of possessing equipment for use in smoking cannabis carries a maximum penalty of a fine of $500.  As imprisonment cannot be imposed in respect of this offence the penalty for it cannot be incorporated into a global sentence of imprisonment (Hermel v Police (2000) 76 SASR 336).

5. I am now required to impose penalties for the offences of possession of cannabis for the purpose of sale and possessing equipment for use in smoking cannabis.

6. According to the information before the magistrate, police officers searched the appellant’s Bridgewater house on 11 July 2001.  They uncovered 824 grams of cannabis including seven bags of cannabis each containing 28 grams.  The magistrate stated in the course of his sentencing remarks that the total amount of cannabis found was 324 grams but this was an error and it has been agreed that the appellant is to be sentenced by me on the basis of possession of 824 grams of cannabis.

7. The prosecution agreed before the magistrate that the appellant should be sentenced on the basis that most of the cannabis was for personal use, but that some was to be supplied to friends and acquaintances of the appellant without pecuniary benefit to the appellant.

8. The appellant is a single man aged 22.  Although unemployed at the time of the offences he had found employment by the time he was sentenced in the Magistrates Court.  He has no prior convictions of any relevance.  As I have said, he pleaded guilty to the offences. Although I must sentence on the basis that the supply would have been to friends and acquaintances there is nevertheless an important deterrent aspect in relation to this offence.

9. There is no suggestion of any pecuniary advantage to the appellant, but he did anticipate that he would be distributing the drug further into the community, thereby facilitating the commission of offences by other persons.

10. The orders made by the learned magistrate will be set aside.  On the first count the appellant will be convicted and imprisoned for three months.  The sentence will be suspended upon him entering into a bond in the sum of $250 to be of good behaviour for 12 months.  The sole condition of the bond is that he be of good behaviour.

11. I have said that the conviction on the second count will be set aside.  On the third count the appellant will be convicted without penalty.  I reimpose the court fees which were ordered to be paid by the appellant when he was before the Magistrates Court.  The appellant will pay $108.70 for court fees.  There will be a $28.00 levy on each of counts one and three and there will be a $16.00 prosecution fee.  The drug and equipment which have been seized will be forfeited to the Crown for destruction.