PLUMMER v Police - [2008] SASC 22

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
PLUMMER v POLICE
[2008] SASC 22
Judgment of The Honourable Justice Kelly (ex tempore)
18 January 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence for knowingly producing cannabis pursuant to s 32(1)(a) Controlled Substances Act 1984 - appellant convicted and fined $500 - appellant 38 years old with no prior convictions and a long-term addiction to cannabis - whether magistrate erred in declining to exercise discretion not to record a conviction under s16 Criminal Law (Sentencing) Act 1988 - whether magistrate entitled to form the view that there was no good reason not to record a conviction. Held: appeal dismissed - offence not trifling - no error on part of magistrate - a magistrate when sentencing, does not have to refer to every submission made by a defendant - magistrate was entitled to form the view that there was no good reason not to record a conviction.
Controlled Substances Act 1984 (SA) s 32(1)(a); Criminal Law (Sentencing) Act 1988 s 16, referred to.
Sims v Police [2000] SASC 102, applied.

PLUMMER v POLICE
[2008] SASC 22
Magistrates Appeal

KELLY J (ex tempore): This is an appeal against a sentence imposed in the Adelaide Magistrates Court on 13 September 2007 for the offence of knowingly producing cannabis, a prohibited substance, contrary to s 32(1)(a) Controlled Substances Act 1984.
The appellant was arrested on 1 March 2007 at his home in Campbelltown after police found five cannabis plants growing in a shed on his property. Photographs tendered at the hearing before the magistrate show two mature cannabis plants, apparently flourishing, being grown by hydroponic methods, and three other seedlings in a seed tray nearby. The appellant was convicted and fined the sum of $500 which at the relevant time was the maximum penalty for that offence.
An appeal was instituted on 15 November 2007 out of time. The appellant, therefore, seeks an extension of time within which to institute the appeal. He stated that after the proceedings in the Magistrates Court on 13 September 2007, and after speaking with friends and colleagues, he decided to consult another solicitor and was eventually able to consult Mr Caldicott on 1 November 2007. Thereafter, an appeal was instituted promptly.
The respondent does not oppose the appellant’s application for an extension of time and, in all the circumstances, I consider that an extension of time should be granted and, accordingly, the time within which the appellant may institute the appeal is extended to 15 November 2007.
The appellant has only one complaint on this appeal, that the magistrate declined to accept the appellant’s submission made by his former solicitor at the hearing before the magistrate that no conviction be recorded. The appellant complains that the magistrate erred in finding that there was no good reason not to record a conviction.
This appeal raises s 16 Criminal Law (Sentencing) Act 1988:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion –
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to –
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.
I emphasise the word may impose the penalty without recording a conviction.
It is immediately clear from the terms of that section, as Bleby J pointed out in Sims v Police [2000] SASC 102 that the assumption behind s 16 is that in most cases a conviction will be recorded. In order to exercise the power conferred by s 16, the court would need to identify what it is that provides good reason for not recording a conviction.
The main complaint on appeal today is that the magistrate, in failing to refer explicitly to the submission made before the magistrate that a conviction may affect the appellant’s employment and involvement with junior sporting activities, amounts to an error which justifies an appellate court intervening.
The magistrate’s remarks were brief; that is not surprising, given the prevalence of this offence and the volume of matters passing through the Magistrates Court on any given day, however, his remarks were also to the point.
It is clear from the magistrate’s remarks as a whole that he was influenced by the sheer quantity of the cannabis growing, a conclusion which, in my view, is quite justifiable when one looks at the photographs tendered, the fact that the appellant is a mature and intelligent adult of 38 years, that he had, at the date of the offending, been a long-term user, the fact that the offence is a prevalent one, and the fact that this court, in a line of decisions, has upheld convictions for first offenders in similar factual circumstances.
In my view, the fact that the magistrate did not explicitly refer to each and every submission that was made before him does not necessarily mean that he did not take that submission into account. Indeed, I was told by counsel in the hearing that, as is usually the case, submissions and the passing of sentence all occurred on the same day. The magistrate involved is an experienced magistrate and I consider there is no reason to suppose that he did not take into account all of the submissions that were made to him that day.
The appellant is now 38 years old. It was not in dispute that he is a man of good character and has no prior convictions. He lives in a de facto relationship and has four children. He has been employed with a trucking company for a period of approximately three and a half to four years. A report tendered on his behalf from a psychologist concluded that the prognosis for his rehabilitation was favourable, subject to the appellant attending further sessions with the psychiatrist to prevent any relapse. There is no reason to suppose that the magistrate overlooked the fact that the appellant has, since his arrest, embarked on a voluntary program of rehabilitation. However, it is clear from his remarks, in particular by the circumspectness of the remarks concerning the appellant’s rehabilitation, that the magistrate may have entertained some caution about the prospects of rehabilitation.
The appellant, prior to his arrest, failed a random drug test by the truck company for whom he is employed as a result of the return of a positive cannabis urine sample taken during that mandatory three-year workplace physical examination in February 2007. The appellant now stands, I am told, to be at risk of losing his job if he returns another positive sample.
It seems that it was that combination of factors, together with his arrest in relation to the current offending, that caused the appellant to take some very real and sincere steps towards rehabilitating himself completely from his long-standing addiction. All of these matters were before the magistrate.
Turning to the nature of the offence itself. Given the state of the two plants and the three seedlings found nearby, and taking into account all of the circumstances, it was not submitted that the offence was trifling. I consider that concession was soundly made. The nature of the hydroponic set up indicates that this was not a one-off event.
I was referred by both counsel to other decisions of this court where the court has, on appeal, either upheld a conviction in relation to a first offender convicted of the same or similar offence in same or similar circumstances, and to other decisions where a first offender has received the benefit of the exercise of the discretion available in s 16 and no conviction has been recorded.
The authorities show that s 16 is available for a court to consider and the discretion in s 16 is enlivened if one or more of the matters referred to in the section are found to exist. However, I accept the respondent’s submission that, at the end of the day, although the discretion is enlivened at that point, it is ultimately a matter in the exercise of the magistrate’s discretion taking into account all of the circumstances, whether a conviction should be recorded. A magistrate must weigh up all of the circumstances in forming the necessary opinion under that section.
As I said earlier, the appellant’s only real complaint was the failure of the magistrate to mention one undoubtedly relevant factor, namely the potential effect on the appellant’s employment and his involvement in junior sporting activities if a conviction is recorded. It was contended that the failure amounts to an error. I cannot agree.
I do not accept that the magistrate failed to take that factor into account, nor, in my respectful view, was this factor necessarily decisive, either in itself or in combination with the other factors, in the formation of the necessary opinion that good reason exists not to record a conviction. It is simply one of the factors and one of the relevant factors to be taken into account.
In this case, when all of the circumstances are taken into account, including the appellant’s age and prior history, the nature of the offending, the effects on his employment, and the other matters including the prevalence of this offence and the fact that parliament has indicated, in the statutory scheme, that sentences in relation to this offending ought to reflect the need for general deterrence, I am not persuaded that the magistrate has made any error in reaching the conclusion that he did, that there was no good reason to not record a conviction.
If I was to be in error in reaching that conclusion and it became necessary to exercise the discretion in s 16 myself, I have to say I would have come to the same conclusion, based on all of the material that was available to the magistrate. However, because, in all of the circumstances, I can find no error demonstrated in the exercise of the magistrate’s discretion, the question of the exercise of my discretion does not arise. It follows, therefore, that the appeal must be dismissed.