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:

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 PLUMMER v Police

Details

AGLC: PLUMMER v Police [2008] SASC 22
Case: [2008] SASC 22
Decision Date: 18 January 2008

CaseChat Overview and Summary

In this case, the appellant, Plummer, was convicted in the Magistrates Court of South Australia for knowingly producing cannabis, an offence under section 32(1)(a) of the Controlled Substances Act 1984. The appellant, aged 38 and with no prior convictions, was fined $500. The appellant appealed against the sentence, arguing that the magistrate should have exercised the discretion under section 16 of the Criminal Law (Sentencing) Act 1988 not to record a conviction, given his long-term addiction to cannabis. The central legal issues were whether the offence was trifling and whether the magistrate erred in not exercising the discretion not to record a conviction.

The Supreme Court of South Australia, in dismissing the appeal, held that the offence was not trifling, and the magistrate was entitled to form the view that there was no good reason not to record a conviction. The court clarified that a magistrate, when sentencing, does not have to refer to every submission made by a defendant. The court found no error in the magistrate's decision, affirming that the magistrate was within their discretion to record the conviction. The appeal was thus dismissed.

No specific orders were made beyond the dismissal of the appeal. The conviction and fine imposed by the Magistrates Court were upheld.

Orders