Police v Robinson
[2012] SASC 201
•8 November 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ROBINSON
[2012] SASC 201
Reasons for Decision of The Honourable Justice Gray
8 November 2012
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
Police appeal against sentence - the defendant pleaded guilty to four offences and one penalty was imposed in respect of all offending - one of the offences to which the defendant pleaded guilty was a breach of section 33J(2)(b) of the Controlled Substances Act 1984 (SA) - in respect of that offence, the complaint asserted that the defendant was in possession of prescribed equipment, namely hydroponic lamp shades, globes and electrical transformers - whether that equipment fell within the definition of "prescribed equipment" for the purposes of section 33J(2)(b).
Held: Appeal allowed - the hydroponic lamp shades, globes and electrical transformers did not fall within the definition of "prescribed equipment" for the purposes of section 33J(2)(b) - the circumstances of the defendant's offending did not give rise to a breach of section 33J(2)(b) - the appropriate offence to have been the subject of the charge was pursuant to section 33LA(a) of the Controlled Substances Act - orders of the Magistrate set aside - consequential orders made, including a conviction being recorded on a new complaint alleging an offence against section 33LA(a).
Controlled Substances Act 1984 (SA) s 33J(2)(b), s 33L(2)(a) and s 33LA(a); Summary Offences Act 1953 (SA) s 6(2) and s 41(1), referred to.
POLICE v ROBINSON
[2012] SASC 201Magistrates Appeal
GRAY J.
This is a police appeal against sentence.
The defendant and respondent, Troy Robinson, pleaded guilty before a Magistrate to a breach of section 33J(2)(b) and an offence against section 33L(2)(a) of the Controlled Substances Act 1984 (SA). The defendant also pleaded to breaches of sections 6(2) and 41(1) of the Summary Offences Act 1953 (SA). The Magistrate imposed the one penalty in respect of all offending, being a fine of $1000.00. He also ordered that the defendant pay court fees and prosecution costs totalling $323.50. A victims of crime levy of $800.00 was imposed. The Magistrate made an order for forfeiture in respect of the equipment the subject of the offence against section 33J(2)(b).
The defendant admitted his conduct was in breach of a suspended sentence bond. The Magistrate excused the breach having regard to the time spent in custody and on home detention bail, and extended the bond for a period of six months so that its expiration date became 10 December 2013.
During the preparation of the appeal, counsel appearing for the police formed the opinion that the circumstances of the offending did not give rise to a breach of section 33J(2)(b). Count 1 on the complaint which charged the breach of section 33J(2)(b) asserted that the defendant was in possession of prescribed equipment, namely hydroponic lamp shades, globes and electrical transformers. However, a review of the list of prescribed equipment disclosed that the equipment the subject of the charge was not within that list.
It would appear that the appropriate offence to have been the subject of the charge was pursuant to section 33LA(a) of the Controlled Substances Act. This is a significant matter as the charge under section 33J(2)(b) is a minor indictable offence, carrying a maximum penalty of $15,000.00 or imprisonment for five years, or both. In comparison, a charge under section 33LA(a) is a summary offence, attracting a maximum penalty of $10,000.00 or imprisonment for two years, or both.
Counsel was correct in his analysis and also correct in his submission that, in these circumstances, the orders imposed by the Magistrate should be set aside. Counsel for the defendant accepted the analysis and also the consequences of the orders that had been made.
In the circumstances, counsel for the police submitted that, subject to the defendant pleading guilty to a fresh complaint alleging a breach of section 33LA(a) of the Controlled Substances Act, subject to his agreement to the alleged breach of the suspended sentence bond being amended and subject to an admission that his conduct breached that bond, the police would not seek any different penalty to that imposed by the Magistrate.
Counsel for the defendant indicated that this course was accepted by his client. A final complaint was made and a plea of guilty entered. The defendant agreed to the fact that that conduct was in breach of the suspended sentence bond.
In my view, the course outlined by counsel for the police and agreed to by the defendant was in all the circumstances the appropriate course to be followed. I considered that the penalties imposed by the Magistrate should be in substance re-imposed.
Accordingly, when the appeal was called on for hearing, I made the following orders:
-the orders of the Magistrate be set aside;
-count 1 on the Information alleging a breach of section 33J(2)(b) of the Controlled Substances Act be dismissed;
-on the fresh complaint alleging an offence against section 33LA(a) of the Controlled Substances Act there be a finding of guilty on the defendant’s plea and a conviction recorded;
-the convictions on counts 2, 8 and 10 be confirmed;
-the one penalty be imposed in respect of all offending, being a fine of $1000.00. The defendant pay court fees fixed at $223.50 and prosecution costs fixed at $100.00. The defendant will be obliged to pay a victims of crime levy of $800.00. I extend time for payment to 30 November 2012. Insofar as the defendant has made payments in respect of the fine set aside, due credit is to be given to those payments;
-the application to enforce the breaches of the suspended sentence bond be amended to delete the words “to manufacture controlled drugs” and to amend the date by deleting the year 2011 and inserting the year 2010; and
-on the amended application and on noting the defendant’s admission of the breach, I excused the breach having regard to the time the defendant has spent in custody and on home detention bail. I extend the term of the bond to 10 December 2013.
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