Geyer v Police
[2004] SASC 220
•5 July 2004
Supreme Court of South Australia
(Magistrates Appeals: Criminal)
GEYER v POLICE
Judgment of The Honourable Justice White (ex tempore)
5 July 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - PLEA AND STATEMENT OF DEFENCE
PLEA OF GUILTY - WHERE DEFENDANT NOT REPRESENTED
Appellant charged with producing cannabis - Appellant appeared unrepresented in Magistrates Court and pleaded guilty - Magistrate recorded a conviction - Magistrate erred in failing to advise appellant of her right to seek penalty without conviction - Appellant of good character with no prior court appearances - Extension of time granted - Appeal allowed.
Magistrates Court Act 1991 s 42; Controlled Substances Act 1984 s 32; Criminal Law (Sentencing) Act 1988 s 16, referred to.
Cuthbert v Police (2003) 225 LSJS 472, applied.
GEYER v POLICE
[2004] SASC 220
WHITE J: This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, against a sentence imposed by a Magistrate on 6 May 2004.
The appellant pleaded guilty to an offence contrary to s 32(1)(a) of the Controlled Substances Act 1984, namely, knowingly producing cannabis. It was alleged that the appellant had grown three cannabis plants. The Magistrate sentenced the appellant on the basis that s 32(6) of the Controlled Substances Act applied, hence the maximum penalty for the offence to which the appellant pleaded guilty was a fine not exceeding $500.
The Magistrate entered a conviction and imposed a fine of $200 in addition to court fees, costs and victims of crime levy. In addition, the Magistrate ordered forfeiture of the cannabis and of the equipment used in its production.
The appellant was unrepresented before the Magistrate, as she was on the hearing of this appeal. She did however have the assistance of her father on the presentation of the appeal, with her father acting as a McKenzie friend.
I have said that this is an appeal against sentence. The notice of appeal filed by the appellant, which was filed without legal assistance, indicates that the appeal is against conviction rather than sentence. However, as explained on the appeal, the appellant’s real concern is not the Magistrate’s finding of guilt but the conviction which was entered by him. In these circumstances, the appellant has asked me to treat her appeal as being against the sentence which was imposed. Ms Linn, who appeared for the respondent, had no objection to me regarding the notice of appeal as being an appeal against sentence.
The notice of appeal was filed on 28 May 2004. That was outside the 14 days for the institution of the appeal which is fixed by SCR 96C.02. The appellant has made an oral application for an extension of time in which to institute the appeal. I have been informed by Ms Geyer, from the bar table, that the reason that the appeal was not instituted within time was that both she and her father, who was assisting her, were unaware of the 14-day time limit, and also because of some ill-health on her part. The period of extension sought is not long. No prejudice resulting from the appeal being out of time was claimed by the respondent. I grant the application for the extension of time.
The appellant was born on 31 December 1980. She is now aged 23. The appellant has no prior court appearances at all. The circumstances of the offence are set out in the affidavit of Senior Constable Amy Pridham who had attended before the Magistrate:
“Your Honour, at about 8 pm on Monday, 18 August 2003 police attended 6 Sherwood Avenue, Happy Valley in relation to a standby breach of the peace. Police were given permission to enter the house. On entering the house, police searched various rooms for a male person in relation to another matter. While searching for this person, police saw a hydroponic setup in the rear bedroom consisting of eight lights suspended from several timber beams. Under the lights were three cannabis plants growing in three large pots. The plants were approximately one metre in height and approximately half a metre in diameter. The eight plants were connected to eight ballast boxes. An air-conditioning duct had been set up above the lights. There was plastic tubing connected to the air-conditioner, extending into the ceiling. This setup was enclosed by sheets of black plastic. Attached to this setup was a comprehensive watering system and nutrients which were located in the bedroom.
The defendant stated that she had owned the house for three months, and lived there with her brother and boyfriend. She purchased the air-conditioner and co-purchased the other equipment with her brother. The defendant further stated that both she and her brother had set the equipment up, with the help of the defendant’s boyfriend about two and a half months ago. The plants were planted as seeds and were cultivated for the purpose of smoking for personal use, the defendant having smoked marijuana for two years. At the time the plants were seized, they were a few weeks from cultivation.”
The Magistrate’s remarks on sentencing were brief. The Magistrate said:
“You have pleaded guilty to an offence of producing a controlled substance on the 18th August 2003.
I bear in mind the nature of the set up in relation to this matter – it was quite sophisticated.
You will be convicted for this offence and fined $200. Court fees apply of $104. A levy of $35 and prosecution costs of $16.
Further, I order forfeiture of the drugs and equipment seized.”
The Magistrate’s description of the set up as being “quite sophisticated” was, in my opinion, quite appropriate having regard to the matters set out in Senior Constable Pridham’s affidavit. Considered objectively, this was a sophisticated method of cultivation. However, the appellant says that she adopted this method only because it was the method recommended by a book which she had purchased entitled “The Marijuana Grower’s Handbook”.
The appellant submitted, and I accept, that this was the first time that she had grown cannabis. Three plants were grown. They were grown by the appellant and two others. The cannabis was grown in the appellant’s home. The appellant says that at that time she believed that the growing of three plants was permitted.
The appellant is particularly concerned about the stain of the conviction entered by the Magistrate, of the potential impact of the conviction on her future employment prospects, and on her ability to travel overseas, particularly to the United States of America and to Canada. I do not attach much weight to this last factor, bearing in mind that this belief on the appellant’s part is not based on information provided to her by any authoritative source but appears more anecdotal in nature.
Section 16 of the Criminal Law (Sentencing) Act 1988 provides:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion –
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to
(i) the character, antecedents, age or physical or mental condition of the defendant;
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
Thus, where the court concludes that it is unlikely that the defendant will commit the offence again and that, having regard to the specified matters, “good reason” exists, the court may impose a fine or a sentence of community service, or both, without recording a conviction.
The appellant says that she was unaware of the possibility of a fine being imposed without a conviction being recorded. The appellant says that the Magistrate did not draw her attention to s 16 of the Criminal Law (Sentencing) Act. The Magistrate’s sentencing remarks do not indicate that the application of s 16 was considered by him as a sentencing option in the circumstances of this case.
Ms Linn informed me that Senior Constable Pridham was unable to say one way or the other whether s 16 had been adverted to during the course of submissions before the Magistrate.
In these circumstances, for the purposes of this appeal, I propose to proceed on the basis that s 16 was not considered by the Magistrate. In any event, where s 16 may be pertinent, the court should inform an unrepresented defendant of the possibility of making an application that no conviction be recorded: Cuthbert v Police (2003) 225 LSJS 472.
In my opinion, in the circumstances of this case, the Magistrate should have considered use of s 16. In failing to do so, he has, in my respectful view, erred, so that I should consider that aspect of the matter afresh.
In the circumstances disclosed to me on appeal, I do consider that the application of s 16 is appropriate. The appellant is young and of good character. She has been in steady employment having held the same job for four years. That employment ended at the end of May 2004 because of the appellant’s ill-health.
The appellant was educated to matriculation level and has had a series of other jobs prior to commencing a job as a gaming attendant, at which she worked for four years.
The appellant has provided a letter signed by herself dated 21 May 2004. In that letter, the appellant says, amongst other things, that this occasion is both the first time that she has grown cannabis and that it will be the last time. She describes her growing of the three plants as a mistake which she deeply regrets. Whereas the appellant says that she was previously a smoker of marijuana, she has now ceased that practice. Amongst other things, this has become necessary because of a regime of antidepressant medication which she is now on. I accept what the appellant says about that.
The appellant has the active support of both her parents, both of whom were in Court and assisting her.
In those circumstances, I consider that I can be satisfied that first limb for the operation of s 16 is established, namely, that it is unlikely that the appellant will commit this offence again.
I consider that the second limb is also established. In particular, I take into account the appellant’s good character and antecedents. This is her first court appearance.
I do not consider that this offence can be described as “trifling”. As I have indicated it involved the growing of three plants in circumstances which, considered objectively, were appropriately described by the Magistrate as being “sophisticated”. However, the number of plants being grown indicates that this is not the most serious offence of this kind.
Under s 16(b) of the Criminal Law (Sentencing) Act I may also have regard to the physical or mental condition of the appellant. I have been informed that the appellant has a history of poor health including anorexia, as well as impaired mental health. I have been informed that the appellant is currently on antidepressant and mood alteration medication. I take that into account but I am not able to give it great weight. That is not because I do not accept what the appellant says but rather because I consider that if the physical or mental condition of a defendant under s 16(b) is to be taken into account, the court ought to be provided with medical evidence supporting the existence of that condition. There was no medical evidence tendered to the court either at first instance or on appeal in this case.
I also take into account, in relation to what I have called the second limb under s 16, the fact that the appellant appears to have a good insight into her present circumstances. I refer to the appellant’s accepting that it was probably a good thing that this offence was detected at the time that it was.
In this combination of circumstances, there is good reason to impose a penalty without recording a conviction and I therefore propose to exercise the discretion authorised by s 16 in the appellant’s favour.
The order of the Court therefore is:
1.An extension of time to 28 May 2004 for the institution of the appeal is granted.
2. Appeal allowed.
3.The conviction recorded by the Magistrate and the fine of $200 be set aside.
4.Pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 I impose a fine of $200 without recording a conviction.
5.The orders of the Magistrate with respect to court fees, victims of crime levy, and prosecution costs are to stand.
6.The order of the Magistrate with respect to forfeiture of the drugs and equipment is to stand.