PETERS v Police - [2011] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PETERS v POLICE
[2011] SASC 1
Judgment of The Honourable Justice Vanstone
12 January 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appellant pleaded guilty in Magistrates Court to possessing cannabis for supply and simple possession - sentenced to six months imprisonment - delay in instituting appeal - sentence affected by error.
Held: order extending time within which to lodge appeal made and appeal allowed - sentence reduced to imprisonment for four months on principal offence.
Criminal Law (Sentencing) Act 1988 s 18A; Controlled Substances Act 1984 s 33I(2)(b), s 33L(2)(a), referred to.
R v Knowles (2007) 248 LSJS 436; Churchill v Police [2007] SASC 128, applied.
Grzybek v Police [2008] SASC 161, considered.

PETERS v POLICE
[2011] SASC 1
Magistrates Appeal

VANSTONE J: The appellant, a 25 year old Pitjantjatjara man, pleaded guilty to possessing cannabis for supply and possessing cannabis. In April 2009 he was found in possession of some 16 grams of cannabis packaged in 18 press-seal bags at Kanpi in the APY Lands. He told police that he planned to sell 13 of the bags within the community and that the balance were for his own use. In March 2010 he was sentenced to six months imprisonment. He now appeals to this Court. Upon the hearing of the appeal it was sought to recast the grounds. They include that the sentence imposed was manifestly excessive and should have been suspended. The appellant also seeks an extension of time within which to appeal, from 19 April 2010 to 25 October 2010.
The maximum penalty for possessing cannabis with intent to supply it is a find of $2,000, or imprisonment for two years, or both. The maximum penalty for simple possession of cannabis is a fine of $500.
There was a significant delay in dealing with these charges. It seems that the appellant failed to appear at one of the earlier hearings. More recently he came before the sentencing magistrate on 16 March 2010 when he pleaded guilty. On that day a pre-sentence report was ordered and the matter was remanded to 29 March 2010. The appellant was on bail in between times. It was on that latter date that the sentence was imposed. It seems that within hours of this sentence the appellant escaped from custody. He did not commence to serve the sentence under review until 11 May 2010. Another long delay occurred before bringing this appeal. As it has turned out, the whole of the sentence has already been served by the appellant.
There is a question whether the penalty was imposed for both offences, or only the principal charge. A notable feature of the magistrate’s remarks on sentence is that they made no reference to the fact that the appellant was being dealt with for two different offences. Indeed, at the outset of her remarks, the magistrate referred only to the plea of guilty to possession for supply to others. The record of outcome, which is apparently endorsed by the magistrate, refers to pleas of guilty in respect of both offences and implies that the sentence was imposed in respect of both offences.
In support of the appeal counsel for the appellant argues that, having regard to the maximum penalty for the main offence, the small quantity of cannabis involved and the fact that the appellant had only one prior court appearance for an offence unrelated to drugs, the penalty was manifestly excessive. Counsel also contends that the magistrate failed to provide adequate reasons for not considering dispositions short of a term of imprisonment. In that regard counsel observes that there were less severe sentencing options available and the magistrate did not explain why they were not appropriate in this case. It is argued that the magistrate erred in setting the sentence as high as it was and also for declining to suspend the sentence. Counsel contends that if s 18A of the Criminal Law (Sentencing) Act 1988 was used to arrive at the single sentence imposed, then that was in error, since s 18A cannot be used for a combination of offences attracting both imprisonment and non-custodial penalties: R v Knowles (2007) 248 LSJS 463; Churchill v Police [2010] SASC 128.
In her remarks on sentence the magistrate made particular reference to the fact that the appellant’s intention was to supply the cannabis to members of the Kanpi community, observing that it was one of a number of communities in the APY Lands which have a long-standing policy of banning intoxicating substances. For that reason the magistrate expressed the view that general deterrence was to be seen as paramount. Her Honour referred to another recent case from the same community involving about the same amount of cannabis, which had attracted a head sentence of eight months.
In imposing sentence the magistrate noted the appellant’s early plea of guilty and said that she would deduct about 25 per cent from a starting point of eight months imprisonment. Having arrived at a head sentence of six months the magistrate then turned to the question of suspension. Reference was made to the appellant’s frank admissions, to the early plea and to the fact that his record contained only one previous offence which was of a different nature. The magistrate again emphasised the need for deterrence in relation to cannabis dealing in the APY Lands. Having weighed the competing considerations, the magistrate found no good reason to suspend the sentence.
I do not accept that the magistrate’s remarks on sentence were other than comprehensive. There is no requirement for itemisation of the various submissions made on behalf of a defendant, nor for an account of all the considerations and reasoning process leading to the sentence. As White J said in Grzybek v Police [2008] SASC 161 at [21], magistrates are not expected to give reasons which contain the level of detail customarily provided by judges. He said:
It is to be expected that often the remarks will be short. But particularly when a sentence of imprisonment is imposed it is to be expected that the remarks will indicate to the defendant why the magistrate considered such a sentence to be appropriate; when sentencing for multiple offences how the single sentence was derived; how account was taken of the principal matters put in mitigation; and what account was taken of the defendant’s guilty pleas. The remarks must be sufficient to enable this Court to perform its appellate function when reviewing sentence.
In my view the remarks on sentence met the relevant requirements. Here the magistrate referred to what she called “the seriousness of this particular offence” and expressly considered factors tending either way in relation to the question of suspension. I do not accept that the magistrate was obliged to explain why a sentence of imprisonment was called for. In my view no other disposition would have been appropriate. Nor do I accept the submission of counsel that in referring to the recent case bearing some similarities to the instant case, the magistrate was applying some sort of tariff. Her Honour clearly imposed the sentence in the context of the particular case before her.
Nevertheless, I consider that it is appropriate to allow this appeal. I have determined to do so notwithstanding that the lapse of over five months since the time of sentence to the institution of the appeal is not well explained. The affidavit material before me demonstrates that, at least from the time the Aboriginal Legal Rights Movement began to act for the appellant, the matter was prosecuted expeditiously. My concern is that the court record reflects error on its face, inasmuch as it appears that one period of imprisonment has been imposed in respect of both offences. If the true position is, as I think, that by the time of sentence the magistrate had overlooked the simple possession charge, then in fact the sentence for the first count has been imposed in respect of a larger quantity of cannabis than it actually involved. Therefore the disposition is, on either view, affected by error.
Having determined that the appeal must be allowed and the sentence set aside, it falls to me to sentence afresh.
I have taken into account in the appellant’s favour his frank confession to police, his pleas of guilty, the fact that he is a traditional Pitjantjatjara man, and, that at the time of this offence, he had only one prior court appearance. I am told that he is now 25 years of age and has a long-standing relationship with a young woman, with whom he has two children. As I understand it, the children mainly live with their mother’s sister. I note also that the quantity of cannabis involved was small and that the potential gain to the appellant was limited. On the other hand, like the magistrate, I see this as a serious example of possessing cannabis for supply, because of the intention to supply cannabis to members of the indigenous community on the APY Lands.
Having regard to all those matters, for possessing cannabis for supply I consider a starting point of five months imprisonment is appropriate. From that I would deduct one month to reflect the plea of guilty. That leaves a head sentence of four months. In respect of the simple possession offence I would convict the appellant without penalty.
Therefore, the orders I make are:
1.the appeal notice will be amended to reflect the grounds of appeal set out in the appellant’s outline of argument at page 4;
2.the time within which the appeal may be instituted is extended to 25 October 2010;
3.the appeal is allowed and the sentence imposed by the magistrate on 29 March 2010 is set aside;
4.in its place the following orders are made:
(i)for possessing cannabis for supply the appellant is sentenced to 4 months imprisonment which will be deemed to have commenced on 11 May 2010;
(ii)for possessing cannabis the appellant is convicted without penalty;
(iii)the cannabis is to be forfeited;
(iv)(consistent with the magistrates order) court costs are waived.