Leonello v Police - [2005] SASC 29

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
LEONELLO v POLICE
Judgment of The Honourable Justice Bleby (ex tempore)
17 January 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING
Appeal against recording of conviction – Knowingly possess and produce cannabis contrary s 31(1)(a) and s 32(1)(a) Controlled Substances Act 1984 – Circumstances where appropriate not to record conviction – s 16 Criminal Law (Sentencing) Act 1988 – Whether error in exercise of Magistrate’s discretion – No error demonstrated – Appeal dismissed.
Controlled Substances Act 1984 (SA) s 31(1)(a), s 32(1)(a), s 45A; Criminal Law (Sentencing Act) 1988 (SA) s 16, s 18A, referred to.
Sims v Police [2000] SASC 102; Roder v Police [2000] SASC 432; Crosby v Police [2002] SASC 213; Police v Zefi [2003] SASC 218, applied.

LEONELLO v POLICE
[2005] SASC 29
Magistrates Appeal (ex tempore)

BLEBY J: The appellant was charged, and in the Magistrates Court, pleaded guilty to, two breaches of the Controlled Substances Act 1984. The first offence was knowingly producing cannabis, contrary to s 32(1)(a) of the Act. There were six plants involved. The second was knowingly having cannabis in his possession, contrary to s 31(1)(a) of the Act. The amount of cannabis involved was approximately 200 grams of dried cannabis heads and approximately 80 grams of loose cannabis.
The appellant asserted and the Magistrate accepted that the plants and cannabis were for the appellant’s own use.
In the circumstances of this case, the maximum penalty for each offence was a fine of $500. Neither offence was a simple cannabis offence as defined in s 45A(8) of the Act, and neither could have been the subject of an expiation notice and payment of an expiation fee under s 45A.
The Magistrate recorded convictions on both counts. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Act”) he imposed one penalty, namely a fine of $325.
The appeal was not instituted within the time required by the Supreme Court Rules. It was one day outside that period, said to be due to a miscalculation of the time by the appellant’s solicitor. In view of the period of the delay, the fact that it appears not to have been due to the default of the appellant and the fact that no prejudice appears to have been caused by the delay, I will extend the time within which to institute the appeal to 17 November 2004.
The only complaint on appeal is that the Magistrate declined to accede to the appellant’s submission that no conviction should be recorded, and that the Magistrate should exercise his discretion under s 16 of the Act. Section 16 provides:
“16.Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion –
(a) that the defendant is unlikely to commit such an offence again;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Leonello v Police [2005] SASC 29
Case: [2005] SASC 29
Decision Date: 17 January 2005

CaseChat Overview and Summary

The appeal in Leonello v Police arose from a conviction for knowingly possessing and producing cannabis, in contravention of sections 31(1)(a) and 32(1)(a) of the Controlled Substances Act 1984. The appellant contested the recording of his conviction, arguing that the Magistrate had erred in not exercising their discretion under section 16 of the Criminal Law (Sentencing) Act 1988 to not record the conviction. The Court of Appeal was tasked with determining whether the Magistrate's decision not to forgo recording the conviction was legally sound.

The primary legal issue before the court was whether the Magistrate had erred in their discretion when deciding not to refrain from recording the conviction. The court examined whether the Magistrate had considered all relevant factors and exercised their discretion correctly under section 16 of the Sentencing Act. The appellant's argument hinged on whether the Magistrate failed to adequately consider the mitigating circumstances, including the appellant's minimal involvement in the offence and his otherwise good character.

In dismissing the appeal, the Court of Appeal found no error in the Magistrate's exercise of discretion. The court held that the Magistrate had appropriately considered the relevant factors, including the nature and circumstances of the offence, the appellant's background, and the principles of justice and deterrence. The court was satisfied that the decision not to refrain from recording the conviction was a reasonable one, given the seriousness of the offence and the need to uphold the law. Consequently, the appeal was dismissed, and the conviction was upheld.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence imposed by the Magistrates Court be affirmed. The court's decision underscores the importance of the discretion afforded to magistrates in sentencing, provided that the exercise of that discretion is legally sound and based on a comprehensive consideration of all relevant factors.

Orders