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; and
(b) that, having regard to –
(i)the character, antecedents, age or physical or mental condition of the defendant;
(ii)the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
As I said in Sims v Police [2000] SASC 102 at [7]:
“(T)he assumption behind s 16 of the Sentencing Act is that, in most cases, a conviction will be recorded. Section 16 is by way of exception to the normal rule. In order to exercise the power conferred by s 16, the court would have to identify what it was that provided good reason for not recording the conviction.”
See also Roder v Police [2000] SASC 432 at [15]; Crosby v Police [2002] SASC 213 at [15].
The forming of the opinion on the two matters referred to in paragraphs (a) and (b) of s 16 is a condition precedent to the exercise of the court’s discretion to impose a penalty without recording a conviction. The court must form the opinion both that the defendant is unlikely to commit the offence again and that good reason exists, having regard to the relevant factors, for not recording a conviction. In forming the opinion as to the second limb (paragraph (b)) the court will first need to be satisfied that one or more of the elements of the requisite nature referred to in paragraph (b) provide good reason for not recording a conviction: see Sims v Police (supra) at [5]; Police v Zefi [2003] SASC 218 at [10].
A submission was made to the Magistrate by counsel for the appellant, among other things, that the appellant had instructed counsel that he did not intend to commit the offence of producing cannabis again. According to the affidavits filed in these proceedings, nothing was said about the offence of possessing cannabis. Indeed, when spoken to by police the appellant acknowledged that he knew that it was an offence to cultivate and possess cannabis and further stated that he smoked cannabis every day or so, and smoked “joints”. He said it would take him about two weeks to smoke 200 grams of cannabis.
While there were grounds on which the Magistrate could have formed the opinion that the appellant was unlikely to commit the offence of producing cannabis again (count 1), there was nothing to suggest he could have formed such an opinion in relation to future possession of cannabis, the subject of count 2. Accordingly, at least in relation to count 2, the requirements of paragraph (a) of s 16 were not satisfied, and a conviction had to be recorded on that count. Mr Lister, counsel for the appellant, has asserted before me that the appellant now has no present intention of possessing cannabis in the future. Such a submission is only relevant at this time if I am satisfied that there was some error in the exercise of the Magistrate’s discretion. In any event, such assertions are easy to make, and for an offence of this nature, in order to form the necessary opinion, I would need some assurance that there has been no offending since the apprehension of this offence.
In relation to the matters referred to in paragraph (b) of s 16 of the Act, the cannabis plants were growing in a shed on the appellant’s property. The shed had been converted into two rooms which were fitted with hydroponic lighting, irrigation and exhaust fans. Three medium sized plants were found growing in one room and another three small cannabis plants were located growing in the second room. Approximately 200 grams of dried cannabis head was located in a plastic bag on a shelf in a cupboard situated at the entry area of the shed, and approximately 80 grams of loose cannabis was located inside the rooms. There was no evidence of the consumption of cannabis at the premises.
On behalf of the appellant, it was submitted before the Magistrate that the defendant was aged 34, that he lived with his mother and one of two sisters at Rostrevor, that he had attended Morialta High School and subsequently worked as a porter in a nursing home and as a storeman at an automotive spares business. For 10 years he had been self-employed as a painter, which required the holding of a licence, and that he also held a security licence under the Security and Investigation Agents Act 1995, which enabled him to do part-time security guard work at the Adelaide Entertainment Centre. It was put that he was anxious to avoid a conviction, as this might have an adverse effect on his ability to renew one or other of the licences essential to his employment. He had no previous convictions.
In his remarks on sentence the Magistrate referred to the appellant’s employment, the fact that he had no previous convictions and that he was required to proceed on the basis that the cannabis was for his own use. He then said:
“These are matters where in my view it would be quite unusual not to record a conviction.”
He then went on to note the appellant’s employment in the security industry and his desire to keep “all of that”. He concluded:
“I acknowledge that Section 16 of the Criminal Law Sentencing Act allows a court from time to time in appropriate circumstances not to record a conviction. In my view offences of this type are such it would be an unusual case not to record a conviction.
This case before me is quite ordinary of the type of matters that come before the court.”
I infer from what the Magistrate said and from his long experience as a Magistrate that he was fully aware of the circumstances prescribed by s 16.
It is submitted that, by taking the approach he did, the Magistrate erred in the exercise of his discretion under s 16 of the Act. I do not accept that submission. The Magistrate’s approach is consistent with the view expressed on more than one occasion in this court that the non-recording of a conviction is by way of exception to the general rule. The Magistrate had adverted to the principal factors which had been put in support of the formation of the appropriate opinion under paragraph (b) of s 16, and was merely saying, in effect, that those circumstances did not justify the formation of the opinion that good reason exists for not recording a conviction by way of exception to the ordinary rule that prevails in cases of that nature.
Turning to the factors to which regard must be had under paragraph (b) of s 16, it could not be said that the offences were trifling. An elaborate system had been set up for the production of cannabis, albeit in relatively small quantities, and the appellant knew that he was committing offences by doing what he did. In relation to placitum (i) of paragraph (b), while the appellant had an unblemished criminal record, there was nothing about the age or physical or mental condition of the appellant which took this out of the ordinary case. The appellant was a mature intelligent adult. The Magistrate was entitled to form the view that there was nothing in the appellant’s character, antecedents, age or physical or mental condition which would justifying his forming the opinion that good reason existed for not recording convictions.
The Magistrate considered the other extenuating circumstances that were put to him, particularly the possible effect of convictions upon the appellant’s ability to continue in employment of the type which he had been performing to that time. There was no certainty that those consequences would follow. However, if being a law-abiding citizen is a necessary pre-condition for a licence to carry out certain activities that suggests the necessity for a degree of confidence in the ability of the licensee to obey the law as a pre-condition of the grant of a licence. In those circumstances there is a countervailing public interest against the exercise of the discretion in favour of an offender. There is no good reason to conceal from the licensing authority the commission of two deliberate breaches of the law.
The Magistrate was entitled to form the opinion that the circumstances put to him did not provide good reason for not recording the convictions. There is no error demonstrated in the exercise of the Magistrate’s discretion. That is not to say that I would have necessarily reached the same conclusion as the Magistrate. The question of the exercise of my discretion does not arise.
It follows that the appeal must be dismissed.