Kalivaci v Police - [2014] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KALIVACI v POLICE
[2014] SASC 14
Judgment of The Honourable Justice Blue
13 March 2014
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence imposed by a Magistrate.
The defendant pleaded guilty to cultivating eight cannabis plants, possessing prescribed equipment and unlawfully diverting electricity. The defendant was convicted and sentenced to imprisonment for two months, suspended upon entering into a bond to be of good behaviour in respect of the cannabis offences and fined $200 in respect of the charge of diverting electricity.
The defendant appeals against the recording of convictions on each count and against the sentence of imprisonment for counts 1 and 2.
Held (allowing the appeal):
1. Section 11(1) of the Criminal Law Sentencing Act 1988 (SA) requires that a sentence of imprisonment only be imposed if the Court is satisfied of one of the five matters listed in that subsection. There was no basis upon which the Magistrate could have been satisfied of any one of those factors. The Magistrate erred in imposing a sentence of imprisonment (at [17]-[20]).
2. The defendant’s criminal conduct was deliberate and sustained and relatively serious in the scale of offences of which the defendant was charged. Despite the defendant’s age, good character, stable employment and other personal factors, there was not good reason not to record a conviction under section 16 or section 39 of the Criminal Law (Sentencing) Act 1988 (SA). The Magistrate did not err in recording convictions on all counts (at [29]-[31]).
3. Appeal allowed. Sentence of imprisonment set aside. In lieu thereof, the defendant having been convicted on the cannabis counts, the defendant is discharged under section 39 without imposing penalty. This is on condition that he enter into a bond to be of good behaviour for two years and six months and is to appear before the Magistrates Court for sentence if he fails to comply with the conditions of the bond (at [33]).
Controlled Substances Act 1984 (SA) ss 33LA, 33K(1)(b); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Electricity Act 1996 (SA) s 85(1)(a), referred to.
Police v Varma [2013] SASCFC 72; 116 SASR 532, considered.

KALIVACI v POLICE
[2014] SASC 14
Magistrates Appeal: Criminal
BLUE J:

This is an appeal against sentence imposed by a Magistrate.
The appellant/defendant Vincens Kalivaci pleaded guilty in the Magistrates Court to cultivating more than the prescribed number of cannabis plants,[1] possessing prescribed equipment[2] and unlawfully diverting electricity.[3]
[1]    Controlled Substances Act 1984 (SA) s 33K(1)(b).
[2]    Controlled Substances Act 1984 (SA) s 33LA.
[3]    Electricity Act 1996 (SA) s 85(1)(a).
In relation to the two cannabis offences, a Magistrate convicted the defendant and sentenced him to imprisonment for two months,[4] which was suspended upon his entering into a bond to be of good behaviour for two years and six months. In respect of the charge of diverting electricity, the Magistrate convicted the defendant and fined him $200.
[4] Pursuant to the Criminal Law (Sentencing) Act 1988 (SA) s 18A.
The defendant appeals against the recording of convictions on all counts and the sentence on the two cannabis counts on the grounds that the Magistrate erred in imposing a sentence of imprisonment and erred in recording convictions.
Background
On 14 May 2013, the police attended at the defendant’s home address. In a bedroom at the house, the police found eight cannabis plants, each about 1.5 metres high and 1 metre wide. They were being grown hydroponically under eight high intensity globes within light shades powered by eight electrical transformers. There was one spare globe, shade and transformer in the bedroom.
In a second room within the house, the police found a further eight sets of high intensity globes, light shades and electrical transformers.
The defendant had connected the power which supplied the bedroom in a manner which bypassed the electricity meter.
At the time of sentencing, the defendant was 20 years old. He had stable employment under a contract with Australia Post. He had no previous convictions and was of good character.
The maximum penalties for the offences were imprisonment for two years and/or a fine of $2,000 for count 1, imprisonment for two years and/or a fine of $10,000 for count 2 and imprisonment for two years and/or a fine of $20,000 for count 3.
The reasons of the Magistrate
The Magistrate referred to the factual circumstances as summarised above. He then said:
These are very serious offences with prescribed penalties of imprisonment for the first two counts. Count 3 is a matter to be dealt only by way of a fine. I note that you are young, age 20 and you are an independent contractor working for Australia Post. Nevertheless, these are serious matters.
I impose convictions for all three offences. Your will receive a bond, but attached to the bond will be a sentence of imprisonment, so that if you breach the bond, you will go to gaol. You will be imprisoned for two months on counts 1 and 2. That is one penalty. That will be suspended provided you enter a bond in the sum of $400 to be of good behaviour for two years and six months. On count 3 you are fined $200.[5]
[5] Reasons of Magistrate Sprod, MCHHL-13-3651 19 August 2013 at [3]-[4].
Sentence of imprisonment
The defendant contends that the Magistrate erred in imposing a sentence of imprisonment for the cannabis offences.
Section 11(1) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) provides:
(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.
The defendant contends that the Magistrate erred in imposing a sentence of imprisonment because none of the factors identified in paragraphs (a) and (b) applied and the Magistrate did not refer to section 11 or find that any of those factors were present.
The primary contention of the Police is that a sentence of imprisonment was necessary to give proper effect to the policies of the criminal law stated in section 10 pursuant to section 11(1)(b) and, their secondary contention is that any other sentence but imprisonment would be inappropriate.
It is common ground on appeal that the defendant had not shown any tendency to violence and had not previously been convicted of an offence punishable by imprisonment or otherwise. The offences for which the defendant was convicted did not comprise “serious offences”[6] and there was no basis for the Magistrate to form the opinion that the defendant was likely to commit a “serious offence” if allowed to go at large. I reject the contention by the Police that there was a basis for the Magistrate to form an opinion that any other sentence would be inappropriate having regard to the gravity or circumstances of the offence. None of the factors listed in paragraph (a) were applicable.
[6] Within the meaning of s 11(1)(a)(ii) and s 20A of the Criminal Law (Sentencing) Act 1988 (SA).
Section 11(1)(b) refers to “the policies of the criminal law stated in section 10”. This is apt to refer to subsection 10(2), which requires a court to give proper effect to the need to protect various interests of the community or particular elements thereof and, in some cases, requires that paramount consideration be given to the need for general and personal deterrence. Subsection 10(2) provides:
(2)     In determining the sentence for an offence, a court must give proper effect             to the following:
(a)     the need to protect the safety of the community;
(b)     the need to protect the security of the lawful occupants of their home                    from intruders;
(c)     in the case of an offence involving the sexual exploitation of a child—                  the need to protect children by ensuring that paramount consideration   is given to the need for general and personal deterrence;
(d)     in the case of an offence involving arson or causing a bushfire—
(i)    the need to protect the community from offending of such   extreme gravity by ensuring that paramount consideration is   given to the need for general and personal deterrence; and
(ii)     the fact that the offender should, to the maximum extent   possible, make reparation for the harm done to the community   by his or her offending;
(e)     in the case of an offence involving a firearm—the need to protect the                    safety of the community by ensuring that paramount consideration is                 given to the need for general and personal deterrence.
…
Paragraphs (c) to (e) have no application to the offences with which the defendant was charged. Paragraph (b) is inapplicable given the circumstances of the offence. This leaves paragraph (a) which refers to the need to protect the safety of the community. There was no basis on which the Magistrate could have formed the opinion that it was necessary for the safety of the community to impose a sentence of imprisonment upon the defendant.
Subsection 10(3) prohibits a court having regard to three specific matters. They have no application to the defendant.
Finally, subsection 10(1) identifies various matters to which a court must have regard where they are relevant. It cannot be said that those matters comprise “policies of the criminal law” within the meaning of subsection 11(2). In any event, a consideration of those factors does not render it necessary to impose a sentence of imprisonment upon the defendant who was sentenced on the basis that he was cultivating cannabis hydroponically for his own use, had no prior convictions and was of good character.
The Magistrate erred in imposing a sentence of imprisonment.
Given my conclusion, it is not strictly necessary to consider two subsidiary submissions made by the defendant. The first is that the Magistrate erred in expressing doubt whether the cannabis was solely for the defendant’s own use. The relevant passage was as follows:
It is suggested, in your counsel’s submissions, that this was all solely for your own use. I have considerable doubt about that, frankly. However, I am prepared to proceed on the basis of the admissions and to the submissions in support.[7]
[7] Ibid at [2].
I would not uphold the defendant’s contention that the Magistrate erred in making those remarks concerning the cannabis having been solely for the defendant’s own use. It is not surprising that, in his own mind, the Magistrate entertained some doubts whether the cannabis was solely for the defendant’s own use given the number of plants found in the bedroom and the set up in the second room capable of supporting a further eight plants. If the Magistrate personally entertained those doubts, he is not to be criticised for honestly identifying the fact that he entertained those doubts. However, the Magistrate identified that the Police accepted the plea on the basis that the plants were solely for the defendant’s own use and explicitly said that he proceeded on that basis. There is no reason to doubt that the Magistrate did not in fact do so. Moreover, the Magistrate obviously would have been aware that the existence of doubt, or considerable doubt, could form no basis for a finding of a circumstance of aggravation being an intention to make commercial use of the plants.
The second subsidiary submission made by the defendant is that the Magistrate erred in characterising the offences as “very serious” and in characterising the matters as “serious”. As to the characterisation of the offences, it could not be said that the three offences charged were “very serious” if they were being compared to the range of offences which might be dealt with in the Magistrates Court. If that is what was meant by the Magistrate, he erred in that characterisation. In relation to the second characterisation, the Magistrate made no error in characterising the matters as serious. He was not referring to the inherent seriousness of the offences charged, but to the seriousness of the particular circumstances in which the offences were committed by the defendant. It is not necessary to reach a final view on what the Magistrate meant by characterising the offences as “very serious” in view of my conclusion that he erred in any event in imposing a sentence of imprisonment.
Recording of convictions
The defendant invited the Magistrate not to record a conviction under section 16 or section 39 of the Act.
The defendant contends that the Magistrate erred in not finding that, having regard to the defendant’s character, antecedents and age, good reason existed for not recording a conviction under section 16 or in not finding that good reason existed for not recording a conviction under section 39 of the Act.
The defendant points, inter alia, to his pleas of guilty, his lack of any prior convictions, his responsible employment and contentions that he did not pose a risk of further offending and the level of criminal culpability was relatively low.
Although the Magistrate did not refer in his remarks on penalty to the submission made by the defendant inviting him not to record convictions, it is apparent that he considered that good reason did not exist not to record a conviction. Objectively, weighing the circumstances of the offending together with the defendant’s personal circumstances, there was not good reason under either section 16 or section 39 not to record a conviction.
The defendant’s criminal conduct was neither inadvertent nor momentary. It was deliberate, both as to cultivating cannabis using prescribed equipment and as to bypassing the electricity meter. It was sustained in that the cannabis plants must have been grown over a period of weeks and due to the existence of the prescribed equipment. The mere fact that criminal conduct is deliberate or extends over a sustained period does not preclude a finding of good reason not to record a conviction. However, where criminal conduct is the result of carelessness or inadvertence or is momentary or transient, other things being equal, a court is more likely to find that good reason exists not to record a conviction.
The mere fact that the cannabis was cultivated for personal use is not in itself a good reason not to record a conviction. For an offence of its type involving personal use, the circumstances of the offending were relatively serious, involving eight plants being hydroponically cultivated together with the establishment of hydroponic facilities which would support cultivation of a further eight plants.
The defendant’s age, lack of prior convictions and good character were circumstances to be weighed in his favour in assessing whether good reason existed not to record a conviction. However, when weighed with the circumstances of the offending, there was not good reason not to record a conviction.
The defendant initially contended that there was a prospect that his contract with Australia Post might be adversely affected by the recording of convictions. However, he acknowledged that Australia Post would become aware of the offences if they were found proved without a conviction being recorded. No evidence was adduced before the Magistrate that Australia Post was likely to take a more adverse view of the offending if convictions were recorded. It is likely that, to the extent that the offending is relevant to Australia Post, it would have greater regard to the penalty imposed rather than whether or not a conviction were recorded. At its highest, it could only be speculation that the defendant might suffer a loss or reduction in his contract with Australia Post as a result of a conviction. It was incumbent upon the defendant to adduce evidence if this factor were to be given any more than generalised weight.[8]
[8] See the approach of the Full Court in Police v Varma [2013] SASCFC 72; 116 SASR 532 at [44] per Gray, Sulan and Blue JJ.
Re-sentence
The Magistrate erred in sentencing the defendant to a term of imprisonment. I set aside that sentence. It is necessary to re-sentence the defendant on counts 1 and 2.
It is appropriate, a conviction having been recorded on the first two counts, to discharge the defendant under section 39 of the Act without imposing a penalty. This is upon condition that he enter into a bond to be of good behaviour for two years and six months and is to appear before the Magistrates Court for sentence if he fails during the term of the bond to comply with a condition of the bond. I will hear the parties concerning the conditions of the bond and consequential orders.