Miller v Police No. Scciv-02-1440

[2002] SASC 387

MILLER  v  POLICE
[2002] SASC 387

Magistrates Appeal (Criminal)

1. BLEBY J (Ex tempore): This is an appeal from the Magistrates Court sitting in Ceduna against a penalty imposed on the appellant for knowingly possessing cannabis for sale or supply to another person contrary to s 32(1)(e) of the Controlled Substances Act 1984.

2. The appellant pleaded guilty to the offence.  The Magistrate imposed a sentence of nine months imprisonment to commence from the date of the sentence, that is 10 September 2002.

3. The appellant now appeals on the grounds that the sentence imposed was manifestly excessive; that the Magistrate erred in failing to give sufficient weight to the appellant’s plea of guilty; that the Magistrate erred in that he sentenced the appellant on an incorrect factual basis; that the Magistrate erred in that he failed to give proper consideration to his discretion to suspend the sentence; and that he also failed to give proper consideration to suspend part of the sentence pursuant to s38(2a) of the Criminal Law (Sentencing Act) 1988.

4. The facts of the matter were that the police received information about the contents of a motor vehicle owned by another person which was in Ceduna at the time.  On the morning of 26 May 2002 the police stopped the vehicle in Ceduna.  It was found to have 320 deal bags of cannabis.  The total weight of the cannabis was half a kilogram.

5. The appellant admitted that the cannabis belonged to him.  On his behalf in the Magistrates Court it was submitted that a person owed him money and was unable to repay him.  The appellant begrudgingly took the cannabis in lieu of repayment of the debt.

6. Whilst it was implicit in the circumstances that the appellant may attempt to recoup a monetary sum, it was submitted that he had no plan, at that stage, as to how that would be achieved.  The Magistrate treated that submission as one to the effect that the appellant “had no idea what could be done with the drugs”.  He said that he had difficulty with that version of the facts, as the appellant had pleaded guilty to possessing drugs for the purpose of selling or supplying to another person.  That may indicate a failure on the part of the Magistrate to give appropriate credit for the appellant’s plea of guilty, as no mention was made of that fact by the Magistrate, nor any express allowance referred to in his reasons for imposing the sentence.

7. The Magistrate referred to the seriousness of the offence and to the recent decision of the Full Court of this Court in R v Cristol [2002] SASC 288. The Magistrate also considered that the appellant’s lack of addiction to drugs was an aggravating factor, presumably because it could then be seen as a purely commercial transaction.

8. The Magistrate went on to consider whether there was some basis upon which to allow for a suspended sentence and decided against suspension, it would appear, on grounds of general deterrence and in reliance on the decision in R v Cristol (supra).

9. The appellant had one prior conviction in 1996 for possessing equipment used for administering an unlawful drug, together with what the prosecutor has described as “an extensive criminal history relating to driving and dishonesty matters some of which had resulted in imprisonment”.

10. The appellant is a 39 year old Aboriginal Australian with a partner and four young children.  He held a supervisory work position within the Koonibba Community.  He is also a musician who frequently plays for underprivileged groups in society.

11. The maximum penalty to be imposed for this offence is a fine not exceeding $2000 or imprisonment for two years or both: Controlled Substances Act 1984 s 32(5)(B)(a)(iii). Section 44 of that Act sets out the matters to be considered where a Court fixes a penalty for an indictable or minor indictable offence under the Act. These include the nature of the substance involved; the quantity of the substance involved; the personal circumstances of the convicted person, including the circumstances relating to the person’s use, if any, of any drug of dependence; the commercial or other motives of the convicted person; and the financial gain that is likely to have accrued to the convicted person as a result of the offence. There was apparently no evidence of the extent of the likely financial gain in this case.

12. In this case the Magistrate appears to have given consideration to all of the necessary matters, although no specific reference was made to the quantity of cannabis involved. The appellant pleaded guilty to the offence at the earliest opportunity and there was nothing in the Magistrate’s sentencing remarks to acknowledge that he took that into account, in accordance with the requirements of s 10 of the Criminal Law (Sentencing) Act 1988.

13. This Court has taken a tough stand on imposing custodial sentences on matters involving the sale and supply of drugs.  It has made it clear that a suspended sentence will only be justified in truly exceptional circumstances where the offence is one involving, or is committed against a background of involvement in commercial trading or dealing in drugs:   R v Mangelsdorf (1995) 66 SASR 60 at 63; R v Cristol [2002] SASC 288 at [15].

14. However, the quantity and nature of the drug and the commerciality of the transaction are still important.  In the case of Cristol itself the defendant pleaded guilty to knowingly having over two kilograms of cannabis in his possession for the purpose of selling it to another person.  The amount was in fact almost 10 kilograms.  The maximum penalty that could be imposed for that offence was a fine not exceeding $50,000 or imprisonment for 10 years or both.  The defendant in that case received a sentence of 21 months imprisonment with a non-parole period of 10 months.  The defendant would have received 3 years imprisonment but was given credit for an early plea and for forfeiting over $13,500 pursuant to s 8 of the Criminal Assets Confiscation Act 1978.  The defendant in that case had no relevant prior convictions.

15. On a rather different scale is the case of Thatcher v Police (Unreported, 31 July 1997, King AJ, Judgment No S6289).  The quantity of cannabis in that case was of a similar order to that in this case.  The defendant was a first offender. The one month sentence was described by King AJ as “moderate” and “the minimum sentence that could properly be imposed”.

16. The Magistrate did not indicate the extent to which any potential sentence might be discounted for the appellant’s plea of guilty in this case.  I am entitled to assume that such discount was given and that the sentence would otherwise have been close to 12 months imprisonment.

17. In my opinion a custodial sentence was called for.  There was nothing exceptional about this case.  The nature of the commerciality of the venture may not have been planned at the time, but there was no doubt that the appellant intended to profit from the sale of the cannabis in his possession.  General deterrence is an important factor in this type of offence, because of the significance of the distribution chain in the availability of drugs to the ultimate consumers.

18. However, for the quantity of cannabis involved, and given the personal circumstances of the appellant, and his plea of guilty, I consider that the penalty imposed was excessive.  I consider that a more appropriate penalty would have been three months imprisonment.  That would still give a message that commercial dealing of cannabis, even in relatively small quantities, will not be tolerated.

19. For reasons I have given it would not be appropriate to suspend the sentence.  The Magistrate did not expressly say that he had considered a partial suspension under s 35(2a) of the Criminal Law (Sentencing) Act 1998.  If he did not consider it he could well have erred.  However, where considerations of general deterrence are important, the application of s 38(2a) may be less appropriate.  I do not consider in the circumstances of this case, and considering the time already spent in custody by the appellant, that anything would be gained by the application of that section.

20. Accordingly the appeal will be allowed and the sentence set aside, and substituted with one of 3 months’ imprisonment.  The formal orders will therefore be:

    1.     Appeal allowed.

    2.Set aside the sentence of 9 months imprisonment imposed by the Magistrates Court.

    3.Substitute for that sentence a sentence of imprisonment of 3 months to commence from 10 September 2002.