Millhouse v Police - [2008] SASC 353

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MILLHOUSE v POLICE
[2008] SASC 353
Judgment of The Honourable Justice Kourakis
12 December 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant pleaded guilty to one count of cultivating a controlled plant for sale and one count of possessing equipment to use with a controlled drug in Magistrates Court - Magistrate convicted the appellant on both counts and sentenced the appellant to seven months imprisonment on the first count - appellant appealed against sentence on the grounds that it is manifestly excessive and ought to have been suspended or partly suspended - whether sentence manifestly excessive - whether Magistrate erred in failing to suspend or partly suspend the sentence.
Held: The Magistrate erred in failing to have regard to his power under s 38(2a) of the Criminal Law (Sentencing) Act 1988 to partly suspend the sentence - this was an appropriate case in which to exercise the power - appeal allowed - appellant re-sentenced to 7 months imprisonment of which 4 months suspended on the appellant entering into a bond to be of good behaviour.
Controlled Substances Act 1984 (SA) s 33B, s 33L(2)(c); Magistrates Court Act 1991 (SA) s 42; Children and Young Persons Act 1989 (Vic) s 3(1); Sentencing Act 1991 (Vic) s 3; Controlled Substances (General) Regulations 2000 (SA) sch 3 pt 2; Criminal Law (Sentencing) Act 1988 (SA) s 38; Statutes Amendment (Sentencing - Miscellaneous) Act 1999 No 13 (SA) s 7, referred to.
House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; R v Reiner (1974) 8 SASR 102, applied.
R v Dobie (Sentencing Remarks, District Court of South Australia, Judge Boylan, 24 October 2008); R v Matheos (Sentencing Remarks, District Court of South Australia, Judge Herriman, 4 September 2008); Police v Carusi [2002] SASC 240; Wessling v Police [2004] SASC 51; R v Locke (1973) 6 SASR 298, considered.

MILLHOUSE v POLICE
[2008] SASC 353
KOURAKIS J
Introduction

The appellant, Jaystin Rodi Millhouse, pleaded guilty to one count of cultivating a controlled plant for sale contrary to s 33B(3) of the Controlled Substances Act 1984 (“the CSA”) and one count of possessing equipment to use with a controlled drug contrary to s 33L(2)(c) of the CSA. On 16 September 2008 he was convicted of both offences in the Magistrates Court. He was sentenced to seven months imprisonment on the first count, but no further penalty was imposed on the second count. He now appeals against that sentence pursuant to s 42 of the Magistrates Court Act 1991, on the grounds that it is manifestly excessive and that it ought to have been suspended or partly suspended.
Background
Mr Millhouse…

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.

Continue reading Millhouse v Police

Details

AGLC: Millhouse v Police [2008] SASC 353
Case: [2008] SASC 353
Decision Date: 12 December 2008

CaseChat Overview and Summary

The appellant, Jaystin Rodi Millhouse, appealed against his sentence in the Supreme Court of South Australia. He had pleaded guilty in the Magistrates Court to cultivating a controlled plant for sale and possessing equipment to use with a controlled drug. He was sentenced to seven months imprisonment on the first count. The appeal was based on the grounds that the sentence was manifestly excessive and should have been suspended or partly suspended. The court was required to determine whether the sentence imposed by the Magistrate was manifestly excessive and if there was an error in not suspending or partly suspending the sentence.

The court found that while the appellant's offending was at the lower end of the scale, the offence was still serious. The court considered that the sentence imposed by the Magistrate was appropriate, but there was an error in not considering the possibility of partially suspending the sentence. The court held that the Magistrate erred in failing to have regard to the power under s 38(2a) of the Criminal Law (Sentencing) Act 1988 to partly suspend the sentence. The court found this to be an appropriate case in which to exercise that power. Consequently, the appeal was allowed, and the appellant was re-sentenced to seven months imprisonment, of which four months were suspended on the condition that he entered into a bond to be of good behaviour.

The final orders of the court were that the appellant serve three months in prison and that the remaining four months be suspended on the condition that he enter into a bond to be of good behaviour for those four months. The bond would take effect upon his release from prison. The appellant had been in custody since 16 September 2008, and the court ordered his release from prison on 16 December 2008. The suspended sentence and bond were to come into effect on that date.

Orders

Orders of the court

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Background

Background to the litigation

The appellant, Jaystin Rodi Millhouse, pleaded guilty to one count of cultivating a controlled plant for sale contrary to s 33B(3) of the Controlled Substances Act 1984 (“the CSA”) and one count of possessing equipment to use with a controlled drug contrary to s 33L(2)(c) of the CSA. On 16 September 2008 he was convicted of both offences in the Magistrates Court. He was sentenced to seven months imprisonment on the first count, but no further penalty was imposed on the second count. He now appeals against that sentence pursuant to s 42 of the Magistrates Court Act 1991, on the grounds that it is manifestly excessive and that it ought to have been suspended or partly suspended.Background Mr Millhouse is 23 years of age. At the time of the offences he was living in rented accommodation in Robe. He had left school at the end of year nine and had not attained any further education or training qualifications. At the time of sentencing in the Magistrates Court he had moved to Mount Gambier and was attending the TAFE college there, doing a course in landscaping. That course was interrupted by the custodial sentence imposed by the Magistrate and it appears that the appellant will not receive any credit for the five or so months during which he attended that course. The appellant has prior convictions for offences he committed whilst living in Victoria. For a number of those offences Mr Millhouse was an adult at the time of offending[1] but was treated as a “young offender” for the purposes of sentencing.[2] The offences are mostly related to theft, and he has no prior convictions for drug-related offences. The last offence was committed late in 2004. The appellant explained that at the time of the previous offending he had a serious heroin addiction. However, he took steps to deal with that addiction. He moved away from Mildura’s drug scene and commenced a methadone program in Mount Gambier. The appellant asserts that he has not used heroin for approximately two years.[1] Children and Young Persons Act 1989 (Vic) s 3(1) (now repealed).[2] Sentencing Act 1991 (Vic) s 3. The offences to which Mr Millhouse pleaded guilty in the Magistrates Court were committed on 14 February 2008 at Robe. On that day, police located 14 cannabis plants growing in a tent structure in the backyard of the appellant’s rented accommodation. The plants were visible from a neighbour’s property. The police searched the appellant’s house and found various items of equipment used to smoke cannabis. The appellant told police that he was growing the plants for an acquaintance, to whom he owed money. His counsel informed the Magistrate that he intended to cull the plants for sex and vigour until he had four or five suitable plants, of which three or four would be used to pay off the debt, and one or two would be retained by the appellant for his personal use. Both the method and place of cultivation and the fact that the plants were not female clones show that the appellant’s offending was far less sophisticated than many, if not most, of the commercial cannabis offences that come before the courts.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The nature of the appellant’s offending was at the lower end of the scale. The plants he was growing were small and could have been male or female. Only female plants bear usable heads. The appellant was intending to cull the plants until he had about four or five. There was no hydroponic set up. The commercial aspect of the enterprise was limited. Nonetheless, the offence is a serious one as demonstrated by the Parliament’s recent enactment of higher penalties for such crimes. The need for deterrence, both personal and general, is a factor that must also be taken into account.Conclusion For the reasons referred to above, I consider that the notional head sentence set by the Magistrate of 10 months, reduced to seven months on account of the appellant’s guilty plea, is appropriate in the circumstances. It has not been shown that the decision not to suspend the whole of the sentence is affected by error. However, I have concluded that there is good reason to partially suspend the sentence given the appellant’s youth and prospects for rehabilitation. I consider that an appropriate order in the circumstances is that the appellant serve three months in prison and that the remaining four months be suspended on the condition that he enter into a bond to be of good behaviour for those four months. The bond will have effect on his release from prison. The appellant has been in custody since 16 September 2008. I would therefore order that the appellant be released from prison on 16 December 2008. His suspended sentence and bond is to come into effect on that date.

Ratio Decidendi

Legal Principle Established

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