Police v KOKOTIS

[2005] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v KOKOTIS

Judgment of The Honourable Justice Anderson

21 January 2005

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CHARACTER OF OFFENCE - DRUG OFFENCES

Appeal by the Crown against a sentence imposed on the respondent on the grounds that it was manifestly inadequate - respondent had pleaded guilty to, and was convicted of, having knowingly produced cannabis contrary to s32(1)(a) of the Controlled Substances Act 1984 and having knowingly had cannabis in his possession with the purpose of supplying it to another person contrary to s32(1)(e) of the Controlled Substances Act - the learned sentencing Magistrate imposed fines totalling $1,000 and an order for forfeiture of hydroponic equipment - respondent had an extensive offending history including a previous drug conviction - no term of imprisonment imposed - held: Magistrate failed to give sufficient weight to the considerations of personal and general deterrence - appeal allowed - sentence of imprisonment imposed but suspended.

Controlled Substances Act 1984 (SA) s32(1)(a), s32(1)(e); Criminal Law (Sentencing) Act 1988 (SA) s10(1)(j), referred to.
Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Mangelsdorf (1995) 66 SASR 60, considered.

POLICE v KOKOTIS
[2005] SASC 7

Magistrates Appeal

1. ANDERSON J      In this matter the Crown appeals pursuant to s42 of the Magistrates Court Act 1991 (SA) against a sentence imposed on the respondent on the ground that it was manifestly inadequate.

2. The respondent had pleaded guilty, and was convicted of having knowingly produced cannabis, namely seventeen plants, contrary to s32(1)(a) of the Controlled Substances Act 1984 (SA). He also pleaded guilty to having knowingly had cannabis in his possession with the purpose of supplying it to another person contrary to s32(1)(e) of the Act.

3. The learned Magistrate, in his reasons for sentence, found that the respondent was a consumer of cannabis, and was supplying others as well as himself, as a result of what he called a ‘pooled’ arrangement.  The Magistrate accepted that it was not a commercial arrangement.  Hydroponic equipment in connection with the production of the cannabis was seized and forfeited.  The Magistrate found that the respondent was a person nominated as the grower for he and his friends, and sentenced him on that basis.

4. The sentence imposed by the Magistrate was $250 on the first count, and $750 on the second count, together with the order for forfeiture.  The Crown says that in all the circumstances the fines imposed are manifestly inadequate.

5. The respondent argued that this is not a case which comes within the principles stated by the High Court in Everett v The Queen (1994) 181 CLR 295, and by the Full Court in Police v Cadd (1997) 69 SASR 150.

6. In short, the cases establish that in an appeal by a prosecutor against sentence in a case which involves a custodial sentence, the appeal may only be justified in a rare and exceptional case. This is despite the fact that an appeal lies as of right from a Magistrate pursuant to s42 of the Magistrates Court Act.

7. It was argued that the appellant did not pass the first barrier, namely, that this was a rare and exceptional case.  It was argued that nothing has been demonstrated to show that the reasons of the learned Magistrate are wrong in principle, and therefore it is not sufficient to merely complain that the penalty is inadequate.

8. Later in these reasons I indicate that it is my view that the sentence is inadequate and that it is necessary for this court to interfere.  I have formed the view that this is a case which comes within the tests laid down in the cases referred to above.

9. The Crown urged that there should be a term of imprisonment imposed on the respondent for several reasons as follows:

   1The extensive offending history of the respondent, and in particular his previous conviction for drug offences, even though the last one was some seven years prior to the occasion in question;

   2The number of plants and the weight of the cannabis was significant, albeit in the lowest range;

   3The case of the ‘pooled’ arrangement makes the situation worse than a one-off activity, even though it was not commercial;

   4It was the respondent who was responsible for looking after the plants, and therefore he had the major role in the whole activity;

   5The use of hydroponic equipment showed the degree of sophistication used by the respondent.

10. It seems that the learned Magistrate, however, took all these matters into account, and it therefore becomes a question of whether there should be an interference with the sentencing discretion of the Magistrate.

11. It seems to me that it is one of those cases which warrants interference by the court because the penalties imposed by the Magistrate, in all of the circumstances outlined and having regard to the respondent’s background,were too lenient.

12. When one examines the Magistrate’s reasons, it is apparent that he properly took all of the relevant matters into account except for one factor. That one factor is that it does not appear from his reasons that he placed any emphasis at all on either the personal or general deterrence factors required to be considered under s10(1)(j) of the Criminal Law(Sentencing) Act 1988 (SA). The Crown argued that he was particularly concerned with the life history events of the respondent, rather than the deterrent aspects. I agree with that submission.

13. I have already said that I find that this is not such a case that falls at the first hurdle, namely, whether it is an appropriate case for a Crown appeal.  As I have said, on the face of it, the penalty looks inappropriate.  Looking further at the various factors taken into account by the learned Magistrate, I am of the view that although not offences involving commerciality, as in R v Mangelsdorf (1995) 65 SASR 60, the fact is that the respondent was, by his actions, making it possible for a prohibited substance to be distributed in the community.  This should be deterred.  The Magistrate, in my view, did not place sufficient weight on this aspect in his sentencing considerations.

14. The Crown did not suggest other than that it was appropriate to suspend any sentence if a term of imprisonment was appropriate.  In the circumstances, and given the previous convictions for similar offences, it is my view that a term of imprisonment for six months should have been the starting point.  That would be reduced to four months and two weeks for the guilty plea. In the circumstances the respondent should be given one final chance, and the sentence will be suspended, upon him agreeing to enter into a bond to be of good behaviour for a period of two years.

15. I therefore allow the appeal, set aside the fines imposed by the learned Magistrate, and impose a sentence of four months and two weeks.  I order that the sentence be suspended.  In all other respects, the orders of the learned Magistrate stand.

16. I will hear counsel as to the appropriate terms of the bond.