LOSAPIO v Police - [2005] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LOSAPIO v POLICE
Judgment of The Honourable Justice Anderson
21 January 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Appellant pleaded guilty to knowingly taking part in the sale of cannabis contrary to s32(1)(d) of the Controlled Substances Act 1984 (SA) - charged with two co-defendants - telephone conversations between the co-defendants were recorded by the police - appellant sentenced to imprisonment for four months and two weeks - co-defendants sentenced to six months imprisonment - Magistrate declined to suspend the sentence - whether Magistrate erred in exercise of discretion to suspend the sentence - whether s38 of the Criminal Law (Sentencing) Act 1988 (SA) correctly applied - held: no error on part of the Magistrate demonstrated - appeal dismissed.
Controlled Substances Act 1984 (SA) s32(1)(d); Criminal Law (Sentencing) Act 1988 (SA) s38, referred to.
R v Mangelsdorf (1995) 66 SASR 60, applied.
R v Gjoka (unreported, SACCA, 1 July 1997) Judgment No S6211, considered.

LOSAPIO v POLICE
[2005] SASC 8
Magistrates Appeal

ANDERSON J The appeal in this matter is from a decision of a Magistrate following a conviction of the appellant for taking part in the sale of a controlled substance. The appeal is in relation to the sentence only. The sentence was imprisonment for four months and two weeks, and the Magistrate declined to suspend the sentence.
There were three people charged on the complaint relating to the sale of cannabis on 6 April 2003. The appellant pleaded guilty and admitted that on 6 April 2003, together with the other two defendants, he knowingly took part in the sale of cannabis contrary to s32(1)(d) of the Controlled Substances Act 1984 (SA). He also admitted that he knowingly produced cannabis on the same date but at a different place.
A considerable amount of the evidence against the appellant and the other two defendants was obtained as a result of police interception of various telephone calls. The details of those calls were reproduced in the transcript.
The learned Magistrate summarises in some detail the role of each of the participants in the sale. The learned Magistrate formed the view that the role of the appellant was somewhat more than what the appellant had suggested during the plea in mitigation made by his counsel. As a result of his interpretation of the transcripts of the telephone conversation, the learned Magistrate decided to hear evidence at a further hearing, and the appellant gave evidence.
It is clear from his reasons that the Magistrate was not impressed with the evidence of the appellant. He says at [12]:
“… In my assessment, your version of events was inherently improbable. As a result, my confidence in your truthfulness and in the reliability of your evidence was so seriously undermined that I reject your evidence. I do no think that there is a reasonable possibility that your version of events might be true.”
The learned Magistrate directs himself to all of the matters which he has to take into account, and in particular refers to the decision of the Chief Justice in R v Mangelsdorf (1995) 66 SASR 60 at page 68. The Magistrate correctly described the transaction as being of a commercial nature. He said at [15]:
“It was planned and premeditated. It was committed against the background of possible further trading.”
The learned Magistrate then, in some detail, described the personal circumstances of the appellant. He was thirty-three years of age and single. He suffered an injury at work which adversely affected his capacity for work. He has, however, undertaken a rehabilitation program which indicates that he has prospects of working again.
The appellant had various appearances before the Youth Court, all of which resulted in small fines. There was one relevant offence as an adult when, on 14 December 2001, the appellant pleaded guilty to a charge of producing cannabis. On that occasion a conviction was recorded and he was fined $250.
The learned Magistrate set out in precise detail the range of sentencing options available, and a detailed consideration of the relevant cases. It was not suggested in this appeal that the Magistrate had erred other than in his decision not to suspend the sentence.
The learned Magistrate, following his summary of the principles to be applied, in his discussion of the factual background of the matter and the personal circumstances of the appellant, said at [28] – [29]:
“I have considered the circumstances of the offences and your circumstances as an offender. I have borne in mind the legislative policy indicated by the penalties fixed by Parliament and the sentencing standards referred to in R v Mangelsdorf and the other cases. I have considered the impact of an immediate custodial sentence on you at a time when you are engaged in a return to work program.
In the circumstances, I consider that the greatest weight should be given to the need to protect the community and the need to deter you, and other people, from engaging in commercial activities with respect to illicit drugs. In all the circumstances, I am not persuaded that good reason exists for suspending the sentence of imprisonment which I am about to impose.”
Some criticism was made of the Magistrate, in relation to the passage from Mangelsdorf which he referred to at [27] as follows:
“In the case of The Queen v Gjoka judgment S6211 delivered on 1 July, 1997, Chief Justice Doyle said at page 3:
‘The power to suspend a sentence is conferred by s38 of the Sentencing Act. The court may suspend a sentence “… if it thinks that good reason exists for doing so.” That is the statutory criterion, and that is the test to be applied.
Nevertheless, it is appropriate for this court in particular cases, to determine, as it did in Mangelsdorf(supra) that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.”’
It was said that this was an indication that maybe he was not correctly applying the principles of the Criminal Law (Sentencing) Act 1988 (SA) because he referred to a passage containing the words ‘exceptional circumstances’.
His Honour did that however in the context of citing a passage from the judgment of the Chief Justice in The Queen v Gjoka, and in my view, the learned Magistrate clearly knew and applied the correct principles under s38 of the Criminal Law (Sentencing) Act. In the end, he was not persuaded that there was good reason which existed for suspending the sentence.
It was argued by the appellant that the fact that the Magistrate differentiated between the appellant and the other two offenders in his sentencing, was relevant. He sentenced the other two offenders to six months imprisonment but sentenced the appellant to four months and two weeks. It was argued therefore that it was an indication from the Magistrate that there was some good reason which made the appellant’s case different from that of the other two defendants, and that therefore the sentence should been suspended.
In my view, this is not logical because it is clear that the Magistrate believed that whereas there were differences in the involvement of the three offenders, and whereas he considered the severity of their offending on a scale, he still nonetheless believed that each of them, because of the commercial nature of the transaction involved, should serve a term of imprisonment. I see nothing inconsistent in having the appellant’s sentence slightly lower than the other two offenders, but at the same time, not suspending it.
In my view, the learned Magistrate was quite correct, from my reading of the facts, in the decision he came to.
As previously indicated, there was no challenge to any of the aspects upon which the Magistrate directed himself, either as to the relevant law or the relevant facts. It came down purely to whether, in the exercise of his discretion, the Magistrate erred in refusing to suspend the sentence. There is nothing, in my view, which shows any error on the part of the learned Magistrate which should cause this court to interfere. Accordingly, I would dismiss the appeal.