Hope v Police No. Scgrg-98-271 Judgment No. S6643

[1998] SASC 6643

HOPE v POLICE

Williams J:

This is an appeal against sentence imposed in the Magistrates Court sitting at Clare on 9 February 1998.  The appellant pleaded guilty to a charge that on 4 October 1997 at Clare he knowingly had cannabis a prohibited substance in his possession for the purposes of selling it to another person.  The appellant also pleaded guilty to a charge of possession of cannabis and a further charge of possessing a piece of equipment for use in connection with smoking of cannabis on 4 October 1997.  The apprehension of the appellant arose out of a search of the appellant’s car in a car park at Clare and a subsequent search of the appellant’s home.  There were other offences uncovered at the same time involving firearms but they are not relevant to the present appeal although they were dealt with by the Magistrate.

Relevant to the cannabis offences the Magistrate imposed one penalty namely imprisonment for 28 days to be served forthwith.  The Magistrate declined to suspend the sentence upon the footing that it was not appropriate so to do in light of the seriousness of the offending including the raising of money in this illegal manner.

In support of his decision the Magistrate made an oblique reference to the approach of King AJ; I take that to be a reference to Thatcher v SA Police (judgment S6289-31 July 1997) when he said:

"The sentence of one month imprisonment is therefore a moderate sentence when measured against the maximum prescribed by law.  I could not regard it as excessive and, even looking at the matter afresh, for myself, I would regard it as the minimum sentence which could properly be imposed.

The question of suspension has to be considered and I have, in view of the mistake which the magistrate made about the quantity of the material, considered this afresh.  Certainly the appellant was a first offender and there are the other matters which I have mentioned as to his background which could be said to operate in favour of suspension.  Nevertheless, looking at the matter for myself, I must say that I agree with the magistrate’s remark that it is not appropriate in this case to order that the sentence be suspended.  Parliament obviously takes a serious view of the offence, as is indicated by the maximum penalty provided.

As this court has said on other occasions, deterrence must be an important if not predominant consideration in dealing with offences of this kind and an immediate custodial sentence is the ordinary penalty for this offence.  There is certainly nothing extraordinary about the present case and notwithstanding the matters which operate in favour of this appellant, I have reached the conclusion that it would not be appropriate, to use the magistrate’s expression, to order that the sentence be suspended."

The appellant is to be treated as a first offender.  The grounds of appeal are:

1. That the Learned Special Magistrate failed to put the construction upon the facts before him most favourable to the defendant.

1. That the sentence imposed by the Learned Special Magistrate was in all circumstances manifestly excessive.

1. That the Learned Special Magistrate failed to properly have regard to matters required to be considered pursuant to the Criminal Law (Sentencing) Act South Australia.

During the present appeal the appellant put forward material personal to himself which he asserted should militate in favour of suspension of sentence.  The age of the appellant, the amount of cannabis packaged for sale and the likely financial returns are matters mentioned in the appellant’s submissions.

The appellant’s employment position was also canvassed.  He is likely to lose his car as he will not be able to keep up the payments if he has no job.

The appellant is 20 years old and was born and brought up in Clare.  He has an older brother and sister and lives with his parents on their property on the outskirts of Clare.

The property is a small farm and vineyard and although it had been destroyed in the 1983 bushfires, it has been rebuilt over a number of years.

The appellant had attended Clare High School and left just before completing Year 11 in 1993.

He then undertook a 12 month pre-vocational course at Nuriootpa TAFE in automotive and metal fabrication during 1994 and that in the following year, he commenced a plumbing apprenticeship with a business in Auburn.
After two years the appellant’s apprenticeship ended in late 1996 when the business employing him could no longer afford to keep him on.

The appellant managed to find vineyard and farm work in the Auburn district and then a job with a slashing business working in the district.

In November 1997 the appellant obtained full time work with Mid North Manufacturing, a business in Clare manufacturing slashers and other agricultural equipment.

His position had recently been made permanent and his employer had discussed with him the possibility that an apprenticeship might be offered to him.

The appellant admitted having smoked marijuana occasionally in the past on a recreational basis.

In September 1997 the appellant’s casual job in Auburn had become tenuous and his hours were being reduced to only three or four days per week.

He thus felt financially constrained and had decided to sell some cannabis.

The cannabis seeds found by the police in the appellant’s bedroom were some seeds contained in a 35mm film container which the appellant had had for a long time and had forgotten about.

All of the above facts were before the Magistrate.  However, in addition the Magistrate was told that on 4 October 1997 the appellant drove to premises at Clare called the "Warp Zone" with the intention of selling the cannabis.  The Warp Zone is a place of entertainment where young people gather; in the face of an admitted specific intention of selling cannabis at such premises it is not surprising that the sentencing Magistrate treated the offending as being too serious for him to order a suspension of the term of imprisonment.

However, during the hearing of the appeal it was found that the material before the Magistrate was incorrect.  The parties have now put in front of me a supplementary statement of agreed facts including the following:

"What should have been put to the Magistrate and what had been the appellant’s instruction was that he had placed the cannabis in the small bags in his utility intending to sell it should the opportunity arise at some time.  The appellant then went for a drive around the main street of Clare and pulled into the premises known as Warp Zone when he felt like a drink.  If the opportunity had arisen to sell some of the cannabis whilst he was down the street, he would have done so."

It is agreed between the parties that in making sentencing submissions to the Magistrate the appellant’s solicitor inadvertently went beyond the scope of the appellant’s instructions.

In the light of this information and a further statement from the appellant’s employer I consider that I must look at this matter afresh.  The Magistrate was supplied with incorrect information in an important respect as to the circumstances of the offending.  I have the advantage of knowing that the appellant is in jeopardy of losing his job in Clare if he goes to gaol but otherwise his employer has given an assurance of continued employment.

I am faced with a significantly different factual picture from that which was before the sentencing Magistrate.  There is no criticism attaching to this comment but the justice of the situation requires that I look at the matter afresh.

The fact that the appellant had even this small quantity of cannabis (9 bags @ $10 per bag) available for sale is a matter of concern. Deterrence must be "an important if not the predominant consideration" (see per King AJ above). I do not consider that there is any error in the Magistrate’s approach and even as a first offender anyone dealing in drugs ought to be aware of the views expressed by the Court of Criminal Appeal in Mangelsdorf Perry & Richards (1995) 66 SASR 60). Indeed upon the facts made known to the Magistrate I consider that it was consistent with principle that the appellant ought to have been required to serve a period of imprisonment forthwith.

In the present case I have decided that in view of the appellant’s good record, his youth, the small quantity of substance involved, his employment prospects in a country town, the influence and guidance which I see as forthcoming from the appellant’s parents in a stable home environment, I should not require the sentence to be served immediately. I should note, however, that previous good character and detection of relatively small quantity of a drug are not factors which standing alone would lead me to suspend the sentence. I consider that the sentence is modest, but I do not consider that it be in the community interest that the appellant should be without a job. Loss of employment in some cases is a factor which tips the balance in favour of suspending a sentence (see per Mullighan J in Police v Cadd; Hall; Illes; Vlachos; Quinn (1997) 69 SASR 150). If it had been shown that the appellant had in fact gone to a place where young people gather with the intention of selling cannabis in all the circumstances I would not have regarded the balance being in favour of suspension of sentence. As it is, the balance of the scales has been barely tipped in favour of suspension. Nothing in my reasons should be seen as a departure from the principles enunciated in R v Mangelsdorf, Perry & Richards; the Court there noted the difficulty in reconciling a suspension of sentence with the way in which Parliament has indicated that offences against the Controlled Substances Act 1984 should be treated. Thatcher (abovementioned) represents the norm. I note that King AJ was looking at matters afresh when he refused to suspend a sentence imposed upon a first offender.

The sentence of imprisonment for 28 days is confirmed but will be suspended in accordance with s38 of the Criminal Law Sentencing Act 1988 upon the condition that the appellant enter into a bond to be of good behaviour for a period of two years; a condition of the bond in accordance with s41 of that Act will be that the appellant perform 80 hours of community service within 18 months.

Upon the above footing the appeal will be allowed.