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 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.
The appellant was charged with and pled guilty to one count of cultivating a controlled plant for sale, contrary to s 33B(3) of the CSA, and one count of possessing equipment to use with a controlled drug, contrary to s 33L(2)(c) of that Act. Those sections provide as follows:
33B—Cultivation of controlled plants for sale
…(3) A person who cultivates a controlled plant intending to sell it or any of its products or believing that another person intends to sell it or any of its products is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
33L—Possession or consumption of controlled drug etc
… (2) A person who—
…(c) has possession of any piece of equipment for use in connection with the smoking or consumption of cannabis, cannabis resin or cannabis oil, or the preparation of cannabis, cannabis resin or cannabis oil for smoking or consumption, is guilty of an offence.
Maximum penalty: $500.
The maximum penalty provided for by s 33B(3) applies to the cultivation for sale of between one and twenty plants.[3] While the maximum penalty for the offence is 10 years imprisonment, the Magistrate could only impose a sentence of up to two years imprisonment pursuant to s 33B(4) of the CSA.
[3] Controlled Substances Act 1984 ss 4 and 33B; Controlled Substances (General) Regulations 2000 sch 3 pt 2.
The Magistrate convicted the appellant of both counts and sentenced him to seven months imprisonment on the first count.
Issues on appeal
The appellant contends that the sentence imposed by the Magistrate with respect to the offence of cultivating cannabis is manifestly excessive, and ought to have been suspended or partly suspended. Counsel for the appellant also submitted that the Magistrate made a number of errors in sentencing the appellant, in that he conducted an impermissible “tiered” approach to setting the notional sentence, he failed to treat the appellant as a youth, he failed to consider the unsophisticated nature of the appellant’s offending and he failed to consider partial suspension of the sentence.
Disposition of the appeal
This Court will not interfere with the exercise of a magistrate’s sentencing discretion unless it finds that the sentence is unreasonable or clearly unjust, or that the Magistrate acted upon a wrong principle, had regard to extraneous or irrelevant matters, or failed to take into account a material consideration.[4]
[4] House v The King (1936) 55 CLR 499 at 505.
For the reasons that follow, I find that the Magistrate erred in failing to have regard to his power to partially suspend the appellant’s sentence pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (“the CLSA”). I would therefore allow the appeal and re-sentence the appellant.
Partial suspension of the sentence: s 38(2a) of the CLSA
The Magistrate stated in his sentencing remarks:
It has not been suggested to me that a penalty other than imprisonment is appropriate. The issue is whether I suspend it or not.
Section 38 of the CLSA provides for the suspension of sentences of imprisonment as follows:
38 – Suspension of sentence on defendant entering into bond
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond –
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order –
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
(2b) The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.
The Magistrate set the head sentence of 10 months imprisonment, by working back from a sentence of 12 months that he would have imposed but for the appellant’s “naivety”. He then reduced the sentence to seven months on account of the appellant’s guilty plea. It was submitted that in so doing, the Magistrate erred by adopting a multi-tiered approach to sentencing. I tend to think that that submission makes too much of the way in which the Magistrate expressed himself. However it is unnecessary for me to determine that point.
The Magistrate went on to conclude that no good reason existed for him to suspend the period of imprisonment pursuant to s 38(1), taking into account both the personal circumstances of the appellant and his rehabilitation prospects, as well as the seriousness of the offence and the need for personal and general deterrence. This approach to the question of whether to suspend the sentence is in line with the approach set out in Dinsdale v The Queen.[5]
[5] Dinsdale v The Queen (2000) 202 CLR 321 at 348-9 per Kirby J.
I can find no error in the Magistrate’s setting of the head sentence or his decision not to wholly suspend that sentence. Nor is the head sentence of seven months imprisonment manifestly excessive, having regard to the maximum penalty of 10 years imprisonment. That is especially so considering that that maximum sentence applies to the cultivation of between one and 20 plants for the purpose of sale. The appellant cultivated 14 plants, which is toward the higher end of that spectrum. Even if account is taken of the planned culling of those plants it cannot be said that the sentence is too high having regard to the maximum. The higher penalties applicable to the offence with which Mr Millhouse was charged came into effect in December 2007. There have not been many cases that have applied those penalties. However, the sentence imposed by the Magistrate in this case is not outside of the range suggested by the sentences imposed in two matters where the higher penalties imposed by s 33B were applicable.[6] In referring to the number of plants, I should not be taken to suggest that sentences for this offence should be fixed by reference to the number of plants in isolation. It is but one of the many factors, albeit an important factor, that must be considered.
[6] 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). In both cases the accused persons were subject to a 25 year maximum penalty for cultivating a commercial quantity of cannabis plants for sale contrary to s 33B(2) of the CSA. Mr Dobie, who cultivated 22 plants, was sentenced to eight months imprisonment, which was suspended on entering into a bond to be of good behaviour for 18 months. Mr Matheos pled guilty to cultivating 53 cannabis plants and was sentenced to two years and three months imprisonment with a non-parole period of 16 months.
Furthermore, the Magistrate did not err in deciding not to wholly suspend that sentence. The power to suspend a sentence carries with it a wide discretion. Where no express error is made in a judge’s sentencing remarks an appeal court can only find that the discretion has miscarried where there is such manifest incongruity between the sentencing order and the relevant sentencing circumstances that the sentence can only be described as unreasonable or plainly unjust.[7] That cannot be said to be the case here. The Magistrate considered the personal circumstances of the appellant, and weighed them against the seriousness of the offence and the need for both personal and general deterrence. It was open to him to come to the conclusion in all the circumstances that the sentence should not be wholly suspended.
[7] House v The King (1936) 55 CLR 499 at 505.
However, it does not appear that the Magistrate gave any consideration to partially suspending the sentence pursuant to s 38(2a) of the CLSA. I was informed that counsel who appeared before the Magistrate did not bring that section or the possibility of partial suspension to the Magistrate’s attention. The Magistrate nonetheless had an obligation to consider the section. The question to be determined on appeal is whether the failure of the Magistrate to refer to partial suspension means that he overlooked it. I remind myself of the warning given by Wells J in R v Reiner:
A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not "Reasons for Sentence"); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing. Speaking for myself, I sometimes omit on purpose certain matters that I have taken into account, because I deem it inadvisable, in the prisoner's interests (for example, in the interests of his ultimate rehabilitation), to mention them. I sometimes wish to stress certain matters, and accordingly mention them alone; it would be wrong to suppose that I have considered nothing more. I sometimes refer to a principle of sentencing; it would be unfortunate if the inference were to be drawn that I knew of no other. I am sometimes conscious that the words I have used would not necessarily be the words I would have chosen if I had been able to devote mature consideration to their selection. But often as I listen in this Court to arguments based upon an adverse criticism of what the trial judge has said, I am moved to wonder whether, by a process of forensic attrition, remarks on sentencing have not been brought imperceptibly to a state where they are construed contra proferentem.[8]
[8] R v Reiner (1974) 8 SASR 102 at 114-5 per Wells J.
The Magistrate did not refer to s 38(2a) of the CLSA, or to partial suspension of the sentence, at all in his reasons. Partial suspension is a relatively recent innovation.[9] It is not a commonly imposed penalty. The fact that counsel did not refer to s 38(2a) is further reason to think that the Magistrate failed to consider the section at all, as opposed to simply failing to mention it in his reasons.
[9] Subsections 38(2a)-(2b) were introduced as from 16 May 1999 by s 7 of the Statutes Amendment (Sentencing – Miscellaneous) Act 1999 No 13.
I have been referred to two decisions of this Court which have considered appeals on the ground that the sentencing magistrate failed to consider s 38(2a) of the CLSA: Police v Carusi[10] and Wessling v Police.[11] In both cases, such an error was found to have occurred because counsel did not refer to the section in their submissions and the reasons of the Magistrate made no reference to partial suspension.
[10] [2002] SASC 240.
[11] [2004] SASC 51.
It is the failure to refer to partial suspension when the appellant was an obvious candidate for a favourable exercise of the power provided by s 38(2a) that finally persuades me that the Magistrate failed to have regard to the option at all. The appellant is a young man who has reasonable prospects of rehabilitation. He has taken the first steps to overcome his serious drug addiction, although it is clear that the appellant still has quite some way to go.
The appellant has never spent time in an adult prison. While he does have previous convictions, these were committed in the context of the heroin addiction to which I have referred, and he was sentenced as a young offender. This is his first drug offence. As long ago as 1973, the Full Court in R v Locke[12] explained:
But when all is said and done, it is a serious matter to sentence young men of the age of the present applicants [20 and 22 years] to imprisonment for what is in one case the first, in the other almost the first, offence of dishonesty.[13]
[12] (1973) 6 SASR 298.
[13] R v Locke (1973) 6 SASR 298 at 301.
That passage should be contrasted with the following remarks of the Magistrate in this case:
I do not think that at the age of 22 it is really that accurate to describe you as a youth or a young person given your prior experiences. You have had periods of detention in the past and I think reducing the penalty by reason of your age fades into insignificance given that prior history.
I tend to the view that by those remarks the Magistrate discounted the appellant’s youth so much that he for all practical purposes disregarded it. However, given my conclusion that the Magistrate failed to have regard to his power to partially suspend, it is unnecessary for me to finally decide that issue.
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.