Ierodiaconou v Police
[2018] SASC 105
•25 July 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
IERODIACONOU v POLICE
[2018] SASC 105
Judgment of The Honourable Justice Nicholson
25 July 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence.
The appellant appeals against a sentence imposed in the Magistrates Court following his pleas of guilty to one count of cultivating cannabis with intent to supply, one count of possessing prescribed equipment and one count of diverting electricity. The Magistrate imposed a single sentence of imprisonment for two months and two weeks, suspended upon the appellant entering into a bond to be of good behaviour for two years.
The appellant contends that the sentence is manifestly excessive. The respondent concedes that the Magistrate erred with respect to the single discount given for the appellant’s early guilty pleas by imposing a single sentence for the three offences and not identifying the separate discounts that were called for.
Held per Nicholson J, dismissing the appeal:
1. Notwithstanding the Magistrate’s error with respect to the guilty plea discounts, a different sentence would not be imposed in undertaking a resentencing.
2. The seriousness of each of the three offences as committed and in combination is of such significance as to require imposition of a term of imprisonment. The personal considerations in favour of the appellant can be reflected in the length of the prison term and through its suspension.
Controlled Substances Act 1984 (SA) s 33K, s 33LA, s 45A; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) r 7, r 15; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A; Electricity Act 1996 (SA) s 85; Sentencing Act 2017 (SA) s 3, s 4, s 10; , Summary Offences Act 1953 (SA) s 21F, referred to.
R v Wakefield (2015) 121 SASR 569, applied.
R v Nemer (2003) 87 SASR 168, discussed.
IERODIACONOU v POLICE
[2018] SASC 105Magistrates Appeal: Criminal
NICHOLSON J.
Introduction
Mr Ierodiaconou has appealed against a suspended sentence of imprisonment for two months and two weeks imposed in the Magistrates Court. The term of imprisonment was suspended upon the appellant entering into a bond to be of good behaviour for two years.
The one appeal ground initially relied on, as contained in the Notice of Appeal, is that the sentence is manifestly excessive. However, the respondent has conceded that the Magistrate erred with respect to his Honour’s approach to explaining and recording the discount given for the appellant’s early pleas such that the appeal should be allowed for this reason and the appellant resentenced in any event. The appellant has adopted this concession.
The parties are correct and I agree that, ordinarily, the appeal should be allowed for this reason and the appellant resentenced. However, for the reasons that follow, in undertaking a resentencing I would not impose a different sentence and, as a consequence, the appropriate order is for the appeal to be dismissed.
As such, it is not necessary to consider the question of manifest excess. However, given that I take the view on resentencing that the Magistrate’s sentence was, in all other respects, well within the range of penalty otherwise available to his Honour, it follows that I would reject the contention of manifest excess.
On 21 March 2018, the appellant entered early guilty pleas to the following offences:
(i)count 1, cultivating cannabis with intent to supply;[1]
(ii)count 2, possessing prescribed equipment;[2]
(iii)count 3, diverting electricity;[3] and
(iv)count 5, possessing a prohibited weapon (a baton).[4]
As far as count 5 is concerned, the Magistrate refrained from entering a conviction, but imposed a fine of $200 and ordered the forfeiture of the baton. There is no appeal against these orders and the sentence for count 5 does not need to be further considered.
[1] Contrary to section 33K(1)(c) of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is a fine of $2,000 or imprisonment for two years or both.
[2] Contrary to section 33LA of the Controlled Substances Act 1984 (SA). The maximum penalty for this offence is a fine of $10,000 or imprisonment for two years or both.
[3] Contrary to section 85(1)(a) of the Electricity Act 1996 (SA). The maximum penalty for this offence is a fine of $20,000 or imprisonment for two years.
[4] Contrary to section 21F(1) of the Summary Offences Act 1953 (SA). The maximum penalty for this offence is a fine of $20,000 or imprisonment for two years.
With respect to counts 1, 2 and 3, the Magistrate entered a conviction in each case and then employed section 18A of the then applicable Criminal Law (Sentencing) Act 1988 (SA) to impose just the one penalty, as his Honour was entitled to do. In so doing, his Honour correctly recorded that, because of the timing of the pleas, the appellant was entitled to a discount of up to 40 per cent with respect to any sentence imposed for count 1 and a discount of up to 30 per cent with respect to any sentence or sentences imposed for counts 2 and 3.
Unfortunately, his Honour went on to indicate a single starting point for all three offences of imprisonment for four months and allowed a composite reduction to two months and two weeks to allow for the early pleas. His Honour did not indicate separate starting points for count 1 on the one hand and counts 2 and 3 on the other. As such, it is not possible to know what discount (up to a maximum of 40 per cent) was in fact given with respect to count 1 and what discount (up to a maximum of 30 per cent) was in fact given with respect to counts 2 and 3. As a consequence, it is not possible for the appellant to know nor this Court to determine whether, in each case, an appropriate discount was in fact given.
This Court in R v Wakefield has made it plain that proceeding in the manner recorded by the Magistrate will constitute an error of law.[5]
[5] For the relevant principles see generally R v Wakefield [2015] SASCFC 10; (2015) 121 SASR 569 at [38]-[42] (Blue J with whom Kourakis CJ and Peek J agreed). In this case, Blue J stated the applicable principles in the context of a consideration of section 10C of the Criminal Law (Sentencing) Act 1988 (SA). These principles are equally applicable to the operation of section 10B. See also the observations in R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117; (2016) SASR 276 at point 5 in [31] (Lovell J with whose reasons Nicholson and Parker JJ agreed).
In the circumstances, I propose to deal with the question of resentencing rather than remit the matter to the Magistrates Court for that purpose. I will do so on the basis of the material that was before the Magistrate, together with the written and oral submissions of the parties on appeal. The parties are in agreement that a resentencing in this Court is the appropriate course to follow.
Both parties appear to accept that any resentencing by this Court or in the court below should take place pursuant to the recently enacted Sentencing Act 2017 (SA) (“the new Act”) rather than the Criminal Law (Sentencing) Act 1988 (SA) (“the old Act”) which was in force at the time the Magistrate passed sentence. In this respect, reliance is placed on the transitional provision in Schedule 1 to the new Act and noting that this Act came into effect on 30 April 2018. Clause 2(1) of that provision provides:
Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
I have not heard full argument on the question of whether or not the transitional provision, properly construed, embraces a situation where an offender has been sentenced pursuant to the old Act but falls to be resentenced following a successful appeal after the commencement of the new Act. My preliminary view is that the situation may not be as straightforward as an initial reading of the transitional provision might first suggest. For the reasons that follow, it is not necessary that I form a concluded view on that question.
Circumstances of the offending
When the police searched the appellant’s house they located the following.[6]
[6] The descriptions given have been taken from the respondent’s summary of argument which, on my understanding, are not challenged.
(a)in a rear shed grow room and adjoining room:
(i) a total of 11 cannabis plants
(ii) 2 x light shades and light globes
(iii) 1 x carbon filter
(iv) 2 x transformers
(v) dried cannabis in white plastic tubs inside black cooler bag
(vi) handwritten mud map/plan, with appellant’s fingerprint on it
(vii) black bumbag containing dried cannabis
(b)in a concealed grow room in a separate garage:
(i) a total of 5 cannabis plants
(ii) gloves and face mask
(iii) 18 x light shades and light globes (600W)
(iv) 18 x transformers
(v) 1 x large carbon filter
(c)in a front shed:
(i) 5 x light shades
(ii) 12 x light sockets
(iii) 15 x light globes (10 x 400W; 1 x 600W; 4 x 1000W), some opened, some unopened
(iv) unopened box of light flanges
(v) unopened box of globes (400W)
(vi) 12 x unopened boxes of light shades (adjustable)
(vii) 1 x large carbon filter (in packaging)
(viii) 10 x transformers
(ix) 3 x light shades
(x) 7 x power ballasts
(xi) 1 x light shade in box
(xii) 2 x cannabis ‘de-header’/ ‘bud-stripper’
In support of the respondent’s contention that the offending constituted serious examples of the three offences as charged, which contention I accept, the respondent relied on the following matters which are not in dispute:
(i)The appellant conducted two separate grow rooms, one being a rear shed grow room and adjoining room and another being a concealed grow room in a separate garage.
(ii)Hydroponic equipment was used in each of the grow rooms in order to enhance growth and production.
(iii)There was, in addition to the hydroponic equipment in use, an extensive amount of sophisticated hydroponic equipment that was not in use. The nature and quantity of the equipment (as earlier described) was such as to render the appellant’s offending as a serious example of the offence of possessing prescribed equipment.
(iv)Sixteen cannabis plants were located and seized, being a number significantly greater than the legislatively prescribed numbers with respect to which an expiation notice may be issued or a fine only imposed.[7]
(v)The intention of the appellant in cultivating the plants, in addition to personal use, was to supply other persons, albeit not for commercial gain.
(vi)The appellant employed a sophisticated grow room and hydroponic set up.
(vii)Whilst it is not possible on the evidence available to form a concluded view beyond reasonable doubt as to the period of time during which electricity was diverted or as to the value of any such diverted electricity, the evidence that is available permits an inference to the effect that the period of time and value of the electricity diverted was of significance.[8]
[7] See sections 33K and 45A of the Controlled Substances Act 1984 (SA) and regulations 7 and 15 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).
[8] A statement of an electricity supplier compliance officer who examined the diversion set up and relevant records of account was to the effect that the diversion may have been in place for up to three years and may have resulted in diversion of electricity valued at in the order of $50,000 or more. However, this evidence was not tested and on its face presented difficulties with respect to its acceptance as proving these matters beyond reasonable doubt.
In addition to the above matters and in support of those identified in (vi) and (vii), I note the following. The appellant was found in possession of a significant quantity of dried cannabis found in white plastic tubs and a bumbag, three mature or maturing plants, five smaller plants and eight seedlings. Plainly it can be inferred that cultivation of cannabis plants had been taking place for some time in the past and was intended to continue in the future.
Cultivation of cannabis plants for supply is, by its nature, a very serious offence. Whilst it is not to be treated as seriously as cultivation with an intention to sell, it still shares features with that offence that are regarded by the Courts to be of significant concern. In particular, cannabis is regarded as a dangerous drug with great potential for deleterious effects on its users and society at large. An intention to supply others is taken very seriously by both the legislature and the Courts and the penalty regime where such an intention exists reflects that concern. As I have already indicated, the factual basis underlying each of the three offences under consideration serves to characterise each offence committed as a serious example. The appellant does not contend otherwise.
The appellant’s submissions in essence
Notwithstanding the accepted seriousness of the offending, the appellant submitted, before the Magistrate and on appeal, that the proper purposes of punishment in this case would be served by the entering of convictions and a combination, as necessary, of a fine or fines and a bond to be of good behaviour with conditions. During the appeal, one such possible sentencing regime involving these elements was explored with a view to demonstrating its appropriateness in accommodating proper sentencing purposes. The appellant went further and submitted that it was not open in the circumstances of this case to impose a term of imprisonment, even suspended, and that such would fall outside the sentencing discretion available both to the Magistrate and to this Court upon a resentence; hence the initial ground of appeal that the sentence imposed by the Magistrate, being a prison sentence, albeit suspended, was manifestly excessive.
In support of these contentions, the appellant relied heavily on the personal circumstances of the appellant. There is no challenge from the respondent and I accept that the appellant enjoys very favourable personal circumstances that strongly indicate scope for leniency when sentencing.
The appellant was 47 years old at the time of offending and is married with two young children. He has no prior convictions and, apart from the offending under consideration, is to be regarded as of good character, a factor to be given substantial weight in the sentencing process.
The appellant has tertiary qualifications in accountancy and was employed in a major government department for a period in the order of 23 years. Unfortunately, he was made redundant in October 2014 and this triggered an escalation in what had been a long term use of cannabis. The appellant recognises that it may be difficult for him to return to professional work as an accountant given the offences he has committed. He has undergone re-training and is now employed in traffic management.
The appellant suffered from a deepening depression and both this and his increase in cannabis use had a deleterious effect on his relationships with his wife and his children. The appellant has recognised this and I accept that his feelings of shame and contrition, as expressed to the Magistrate, are genuine. In addition, he has made good progress towards rehabilitation from his cannabis habit. Following his arrest in September 2017, the appellant initiated contact with his general practitioner and arranged for a mental health plan to be devised. He has been treated by a psychologist and has been drug free since October 2017. The appellant’s depression has improved, as have his family circumstances and I accept that he is committed to pursuing abstinence from cannabis.
It was, as I have indicated, an accepted factual basis for sentencing that the cannabis had been grown for the appellant’s own use and for sharing with friends and that there was no direct financial or other commercial benefit to be gained. The explanation given for the apparently excessive amount of prescribed equipment found in the appellant’s possession was that when he wished to buy equipment to assist in his more limited operation, he was offered and required to take a job lot of equipment for a fixed price. He took all the equipment on offer, most of which has not been used and has remained in storage in his house. Even if this were so, the essence of the charge of unlawful possession is the possessing of the equipment. The explanation of how this came about and the use to which the equipment was being put at the time of discovery is of some significance. However, the appellant was found in possession of a very large quantity of sophisticated equipment. It is that which, in large part, informs the seriousness of the offence of possessing prescribed equipment.
I accept that the appellant’s personal circumstances are impressive, that they speak strongly in favour of leniency and that any perceived need for personal deterrence will have little role to play when formulating sentence, whereas the appellant’s very good prospects for rehabilitation have a substantial role to play.
Consideration
A question before the Court on this appeal is whether a sentence of imprisonment is available in the circumstances of this matter and if so, whether a sentence of imprisonment should be imposed.
Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) is in these terms.
11—Imprisonment not to be imposed except in certain circumstances
(1)A sentence of imprisonment may only be imposed—
(a) if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
(2)This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
There is no suggestion that a sentence of imprisonment would be justified by virtue of the considerations in (i), (ii) or (iii) in paragraph (a) or in paragraph (b) above. If the matter were to be determined pursuant to the old Act, the question before the Court would be whether any sentence other than a term of imprisonment would be inappropriate having regard to the gravity or circumstances of the offence.
If regard is had to the relevant provisions of the Sentencing Act 2017 (SA), the position might be seen to be slightly different, although I express no concluded view in this respect. Sections 3 and 4 of the new Act provide for both primary and secondary sentencing purposes in the following terms.
3—Primary sentencing purpose
The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).
4—Secondary sentencing purposes
(1)The secondary purposes for sentencing a defendant for an offence are as follows:
(a) to ensure that the defendant—
(i)is punished for the offending behaviour; and
(ii)is held accountable to the community for the offending behaviour;
(b) to publicly denounce the offending behaviour;
(c) to publicly recognise the harm done to the community and to any victim of the offending behaviour;
(d) to deter the defendant and others in the community from committing offences;
(e) to promote the rehabilitation of the defendant.
(2)Nothing about the order in which the secondary purposes are listed in subsection (1) implies that any 1 of those secondary purposes is to be given greater weight than any other secondary purpose.
In very broad terms, but subject to leaving aside the question of weight inherent in the notions of primary and secondary, these primary and secondary sentencing purposes reflect the common law and traditional approach to sentencing that has been adopted in this Court to date. In R v Nemer,[9] Doyle CJ (with whose remarks, in this respect, both Prior and Vanstone JJ agreed) observed as follows.
The sentencing of offenders who have committed serious crimes is difficult.
The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.
The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.
In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence and sometimes they point in different directions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
[9] [2003] SASC 375; (2003) 87 SASR 168 at [4]-[7].
As to the question of when imprisonment might be available as a sentencing option, section 11 of the old Act has been replaced by subsection 10(2) of the new Act which arguably is in more limited terms. That subsection provides as follows.
(2)Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—
(a) the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or
(b) it is required for the purpose of protecting the safety of the community (whether as individuals or in general).
It is common ground in this appeal that, in the event the new Act were to apply, the power to impose a sentence of imprisonment will only arise if the Court decides that “the seriousness of the offence is such that the only penalty that can be justified is imprisonment …”. The present case does not fall within paragraph (b).
It may be that there is a difference in emphasis with respect to the question of when a term of imprisonment may lawfully be imposed between the law as it stood in accordance with the terms of the old Act and the law in accordance with the terms of the new Act. As earlier indicated, I do not find it necessary to determine this issue. In my view, whichever statutory regime applies, a term of imprisonment for the offending before the Court is available and should be imposed.
Notwithstanding the diminished, if not eliminated, role of personal deterrence in this case and the apparently very good prospects for the continued rehabilitation of this offender, other broad objectives of sentencing – the punishment of the offender or retribution so as to reflect society’s disapproval and rejection of the conduct in question and the deterrence of other persons from offending in these ways – remain very important considerations to be reflected in the nature of the penalty imposed. I take the view that the seriousness of each of the three offences in question as committed by the offender (and in combination) is of such significance in this case as to warrant the imposition of a term of imprisonment. The personal considerations in favour of the appellant should be reflected in the length of the prison term and through its suspension. However, they are not such as to render the offending such that imprisonment could not be justified in accordance with the provisions of the new Act, or indeed the old Act.
Conclusion
In my view, the length of the prison sentence imposed by the Magistrate was moderate, if not lenient, although the suspension of the prison term was plainly warranted. In these circumstances and given that this is a defence appeal, I would not sentence any differently. Accordingly, and notwithstanding the error of law earlier identified which ordinarily would lead to the Magistrate’s sentence being set aside and a fresh sentence imposed, the appropriate way to dispose of this appeal is to order that the appeal be dismissed. It is sufficient that I explain, as I have done, the nature of the error committed. However, being a process error, it does not form part of the ultimate sentence and, given that I would arrive at no lesser sentence than that imposed by the Magistrate, there is no reason why that sentence should not stand. The appeal is dismissed.
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