O'Neill v R File No. SCCRM 92/570 Judgment No. 3671 Number of Pages 2 Criminal Law and Procedure

[1992] SASC 3671

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL King C.J.(1), Cox(2) and Matheson(3) JJ.

CWDS
Criminal law and procedure - possession of cannabis for sale - sentencing judge under misapprehension as to applicable maximum - 600 grams found in appellant's possession - prior convictions for possession and consumption of cannabis - sentence of 16 months imprisonment set aside - sentence of 8 months substituted.

HRNG ADELAIDE, 19 October 1992 #DATE 19:10:1992
Counsel for appellant:     Mr S.H. McFarlane with Mr N.J. Rainford
Solicitors:                Rainford and Associates
Counsel for respondent:    Mr B.J. Jennings QC with Ms R.C. Gray
Solicitors:                Director of Public Prosecutions (SA)

ORDER
Appeal allowed, sentence set aside. In lieu thereof sentence of eight months' imprisonment commencing 16 July 1992.

JUDGE1 KING C.J. The appellant was sentenced to imprisonment for 16 months with a non-parole period of 12 months for the crime of possessing cannabis for sale. It is clear from what transpired in the court below that the learned sentencing judge was under a misapprehension as to the maximum penalty which applied. The quantity of the drug found in the possession of the appellant was about 600 grams. 2. The amendments to s.32 of the Controlled Substances Act, 1984 which were made by the Statutes Repeal and Amendment (Courts) Act 1991 provide that if the quantity of cannabis involved in the commission of the offence is less than one fifth of the amount prescribed for the purposes of the section, the penalty is not to exceed $2,000 or imprisonment for two years, or both. The prescribed quantity is two kilograms, and the quantity of the drug found in the appellant's possession was, as I have said, .6 of a kilogram. 3. The learned sentencing judge was under the mistaken impression that that amendment did not apply to the present case, and that the maximum penalty which did apply was a fine of $50,000 or imprisonment for 10 years. The sentence is vitiated by that error, and it is for this court to sentence afresh. 4. The appellant's car was stopped in the early hours of the morning of 25 July 1991 on North Terrace. It was being driven by another person and the appellant was a passenger. The appellant was searched later that morning and seven Buddha sticks were found interwoven between his underpants and his jeans. A search of the car disclosed a further quantity of cannabis. The total quantity, as I have already said, was about 600 grams. 5. The appellant is 31 years of age. His counsel put to the learned sentencing judge certain matters in mitigation, and I take those into account. The appellant, however, has quite a long record of prior convictions and a number of the offences are drug-related offences. He has no prior conviction for the sale of cannabis or for any offence involving commercial dealing in drugs, but has convictions for a number of offences of a consumption character. He has certain other prior offences for one of which, an offence of stealing, he was sentenced to one month's imprisonment, and for another, an offence of unlawful entry, three months' imprisonment, on 18 April 1988. Having regard to the revised maximum penalty for the offence, I think that the sentence imposed by this court should be substantially less than that which was imposed by the learned sentencing judge. In all the circumstances, I think that a sentence of imprisonment for eight months would meet the circumstances of the case. 6. Mr MacFarlane has urged upon us that we should suspend the sentence. In my opinion, however, the appellant's record from a practical point of view precludes the adoption of that course, and I think there must be an immediate custodial sentence. I would impose a sentence of imprisonment for eight months commencing on 16 July 1992.

JUDGE2 COX J. I agree.

JUDGE3 MATHESON J. I also agree.