Grant v Slaviero
[2014] ACTSC 355
•10 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Grant v Slaviero |
Citation: | [2014] ACTSC 355 |
Hearing Dates: | 24 October 2014, 10 December 2014 |
DecisionDate: | 10 December 2014 |
Before: | Burns J |
Decision: | The appeal is upheld. The conviction and sentence of the Magistrates Court is set aside. A non-conviction order and a good behaviour order for a period of 12 months is imposed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – drug offences – artificially cultivating three or more cannabis plants APPEAL – Appeals From and Control Over Magistrates – appeal against conviction and sentence – appeal upheld – offender re-sentenced |
Legislation Cited: | Criminal Code 2002 (ACT) s 618 (2) Crimes (Sentencing) Act 2005 (ACT) s 17 |
Parties: | Adam Geoffrey Grant (Appellant) Amy Slaviero (Respondent) |
Representation: | Counsel Mr Lawton (Appellant) Ms Jamieson-Williams (Respondent) |
| Solicitors Darryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCA 42 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 7 May 2014 Case Title: Slaviero v Grant Court File Numbers: CC14/2189 |
Burns J:
Background
This is an appeal against a conviction and sentence imposed in the ACT Magistrates Court on 7 May 2014 for a charge of artificially cultivating three of more cannabis plans, namely six, contrary to s 618 (2) of the Criminal Code 2002 (ACT).
The matter came before me on 24 October this year, at which time I determined that an error had been made by the Magistrate in sentencing the appellant.
The matter was adjourned until today for evidence and submissions to be placed before me concerning whether I should exercise my discretion to sentence the appellant in some different way to that which was adopted by the Magistrate. Whilst the Magistrate made an error, if I was satisfied that no other sentence was appropriate, it is within my discretion to simply dismiss the appeal. Having heard the evidence, I have determined to exercise my discretion afresh with respect to sentencing the appellant.
Consideration
The submission has been made to me that I should exercise my discretion under the Crimes (Sentencing) Act 2005 (ACT) and make a non-conviction order with respect to the offence. In that regard, s 17 (3) provides that in deciding whether to make a non-conviction order for an offender, I must consider the following:
(a) the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
Subsection (4) provides that I may also consider anything else I consider relevant.
I note that s 33 of the Crimes (Sentencing) Act2005 (ACT) provides that it is a relevant consideration for sentencing purposes to consider whether the recording of a conviction, or the imposition of a particular penalty, would be likely to cause particular hardship to the offender. The appellant is, as I understand it, 34 years old. He has no previous convictions, so that he is, I am satisfied, a person of previous good character. There is nothing about his health and mental condition of significance for sentencing purposes.
The offence of which he was convicted cannot be described as being a trivial offence, nor can it be described as being a particularly serious one. There are no extenuating circumstances in which the offence was committed which have been put before me. There is evidence before me, however, that the appellant is likely to suffer a very significant financial penalty in his business if a conviction is recorded against him.
The evidence of Mr George Harris today was to the effect that he has done quite a lot of business with the appellant over a number of years, in which he uses the appellant as a subcontractor. It is his company's unvarying policy not to employ subcontractors who have criminal convictions because of the nature of the workplaces that Mr Harris' company engages in its business. Mr Harris gave evidence that over the last year the appellant's company had earned approximately $40,000.00 to $50,000.00 through working as a subcontractor for the company of Mr Harris.
Mr Steven Howe also gave evidence that he has regularly used the services of the appellant as a subcontractor, and that he also would not be able to employ the appellant as a subcontractor on commercial and government sites if the appellant has a conviction recorded against him. Mr Howe agreed that he does do some residential work at the present time which he would be able to employ the appellant on as a subcontractor on a case-by-case basis. However, he currently does only about 10 per cent of his work in residential premises, with the remaining 90 per cent being commercial and government work. It is clear that there would be a significant reduction in the opportunity for the appellant to be employed as a subcontractor by Mr Howe if a conviction were to be recorded.
It is not suggested on behalf of the appellant that he would be completely out of work if a conviction were to be recorded against him for this offence. However, I am satisfied, on the evidence, that there would be a very significant financial penalty to him if a conviction is recorded, in that he would not be able to work for Mr Harris, and the amount of work that he would be able to undertake for Mr Howe would be significantly restricted. In my opinion, that is completely disproportionate to the nature of the offence which he committed.
I accept that the usual and expected outcome of criminal offending is the recording of a conviction. However, as s 17 of the Crimes (Sentencing) Act2005 (ACT) makes clear, a court may, in appropriate circumstances, determine to impose a non-conviction order. Suffice it to say that although s 17 is not a first offender provision, it is highly unlikely that any offender will be given the benefit of that provision on multiple occasions.
Decision
I have determined to proceed by way of a non-conviction order, having considered all of the matters that are set out in s 17 (3) Crimes (Sentencing) Act 2005 (ACT), and also the question of the likely financial impact of a conviction on the appellant, which I consider to be relevant for the purposes of s (17) (4) Crimes (Sentencing) Act 2005 (ACT).
The appeal will be upheld. The conviction and penalty which were imposed in the Magistrates Court will be set aside. In substitution, without recording a conviction, there will be a Good Behaviour Order for a period of 12 months from today, with no conditions other than the core conditions.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 5 January 2015 |
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