Gregory v Police No. Scgrg-98-1660 Judgment No. S26

[1999] SASC 26

GREGORY v POLICE
[1999] SASC 26

Magistrates Appeal:  Criminal

1. PERRY J (ex tempore) The appellant appeals against the conviction and sentence imposed upon him following his plea of guilty in the Magistrates Court sitting at Kingscote, Kangaroo Island, to a charge that on 24 January 1998, at Karatta, he knowingly had cannabis in his possession, contrary to s32(1)(e) of the Controlled Substances Act (1984).

2. The appellant was represented by counsel Mr Lister, who put submissions on his behalf in the court below.  The learned sentencing magistrate then proceeded to convict him and impose a fine of $200 together with court fees and other charges.

3. I am informed that the maximum penalty for the offence was a fine of $500.

4. There is one ground of appeal only (as amended at the commencement of the hearing before me), that is, that the learned sentencing magistrate erred:

   “5.1.1... in recording a conviction and declining to apply s.16 or s.39 of the Criminal Law (Sentencing) Act, for the reason that the quantity of cannabis precluded him from following that course. The quantity of cannabis alleged was 'in excess of 100 grams’.”

5. The appellant is a 44 year old man, who had one previous court appearance only, namely, in the Adelaide Children’s Court in 1969 on a charge of receiving, upon which no conviction was recorded, and he was placed on a bond.

6. I have the benefit of two affidavits, one by Mr Lister, who also represented the appellant on the hearing of the appeal, and Mr Marsh, the police prosecutor, who presented the case in the court below.

7. According to Mr Marsh's affidavit, the facts as put by him to the learned sentencing magistrate were that on the day in question police attended at the appellant's address at Karatta, and conducted a search of the property, which consisted of a two-storey mud brick house, several farm type sheds, an old caravan and scrub/crop areas.

8. During the search police located three bags containing green vegetable matter in the caravan; one cardboard box containing green vegetable matter under the caravan; and 2 bags of green vegetable matter inside the house.

9. Mr Marsh then put to the sentencing magistrate that the total weight of the green vegetable matter located was estimated to be in excess of 100 grams, but he did not inform the learned sentencing magistrate just what the weight was.  No growing plants were located, and no other evidence to support sale/supply was located.  The defendant stated to the police that he owned the green vegetable matter, which he knew to be cannabis.  He said that he had it for his own personal use for relief of medical problems.

10. In his affidavit, Mr Lister details the submissions which he made to the learned sentencing magistrate.  It appears that amongst other things he put that the appellant was an apiarist by trade who supplemented his income by doing casual gardening work and provided accommodation for backpackers.  As well, he taught English to Japanese tourists visiting the island.

11. He submitted that the appellant had a blemish-free adult criminal record and was a person of good character.  He confirmed that the cannabis was grown by the appellant for his own use and that he smoked it to relieve systems of depression.  Mr  Lister emphasised that the appellant had been co-operative and that there was no evidence to support any inference of commercial intent.

12. The thrust of Mr Lister's submissions and indeed the explanation for his presence on Kangaroo Island to advance them, was the anxiety of the appellant to preserve his good name, and to avoid a conviction being recorded.

13. The file which has been remitted to this court from the Magistrate's Court, does not contain any note of the learned sentencing magistrate's remarks.  But Mr Gow, who appeared for the respondent, does not challenge Mr Lister's account in his affidavit of what the learned sentencing magistrate went on to say, which was:

    “Normally I would adopt that course, but, because of the quantity of cannabis involved, I will record a conviction.”

14. He proceeded to do just that, and to impose the fine to which I have referred.

15. In advancing his argument in support of the appeal, Mr  Lister repeated what had been put in the court below.   In addition, he drew attention to the fact that the expiation procedure for cannabis offences applies up to a weight of 100 grams but not beyond that weight.  He submitted that it could not be assumed, having regard to the manner in which the prosecution case was put, that the weight of cannabis in this case exceeded 100 grams by very much.

16. I agree.  It seems to me that the police had every opportunity to weigh the total amount which was seized but did not do so, or at least if they did, they did not inform the magistrate of it, contenting themselves with the observation made through the prosecutor, Mr Marsh, that the weight was in excess of 100 grams.

17. Against that background, the expression by the magistrate “Because of the quantity of cannabis involved I will record a conviction”, does not seem to have a clear foundation.  It seems to me that a proper approach would be to assume for the purpose of sentencing that the weight did not exceed 100 grams by much, which, as I have pointed out, is the ceiling beyond which the expiation procedure applies.  If the matter is approached in that way, in my view it should have been regarded as an offence which was at the lower end of the scale of seriousness.

18. Mr Gow has put everything which could be said against the appeal, but it seems to me that in recording a conviction in the circumstances of this case, after making the remarks to which I have referred, the learned sentencing magistrate fell into error. The discretion to refrain from recording a conviction under ss 16 and 39 of the Criminal Law (Sentencing) Act 1988 should have been invoked, to the effect that no conviction should have been recorded.

19. Section 16 is the section most appropriate to be applied, in that I think a penalty should have been imposed, but without a conviction being recorded. It seems to me that both the character and antecedents of the appellant, together with the relatively minor nature of the offending, at least as it was explained to the court, should have led to the exercise of the discretion under s16 to refrain from recording a conviction.

20. The appeal must be allowed for the purpose of achieving that result.  The conviction is quashed but the fine and other money penalties imposed will remain.

[After hearing counsel as to costs]

1. I order that the respondent pay to the appellant the costs of and incidental to the appeal, which I fix at $150.