Police v Tonks

[2010] SASC 285

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v TONKS

[2010] SASC 285

Reasons for Decision of The Honourable Justice Vanstone

1 October 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Respondent cultivated eight cannabis plants hydroponically, possessed prescribed equipment and firearm and failed to keep a class A firearm secured - magistrate imposed a fine of $600 without recording conviction - question of whether magistrate erred in not recording conviction - appeal conceded by respondent.

Held:  appeal allowed - orders of magistrate set aside - matter remitted to the Magistrates Court for rehearing.

Criminal Law (Sentencing) Act 1988 SA, s 16, referred to.

POLICE v TONKS
[2010] SASC 285

Magistrates Appeal

1. VANSTONE J:     The respondent pleaded guilty to cultivating eight cannabis plants, possessing equipment proscribed by regulation under the Controlled Substances Act 1984 (SA), possessing a firearm without a licence and failing to keep a class A firearm secured. All the offences were committed on 25 March 2010.

2. In imposing penalty, the magistrate accepted that the cannabis plants were grown for personal consumption.  It seems that she drew inferences to that effect from the size of the plants and the nature of the growing equipment possessed.  The magistrate also accepted that the firearm, a .22 rifle, had been purchased impulsively for the purpose of rabbit shooting.  The magistrate noted that the respondent was 30 years of age, married, with two children and had been self-employed as a gyprocker for most of his working life.  The magistrate found that it was unlikely that the respondent would commit offences such as these again.  She apparently put some weight on a submission that the respondent planned in the future to take his family to the United States and that entry into the United States would be difficult if he had a conviction.  This contributed to the finding that there was good reason not to record a conviction.

3. The police appeal against this disposition, asserting that the magistrate erred in not recording a conviction.

4. Section 16 of the Criminal Law (Sentencing) Act deals with the circumstances in which the discretion not to impose a conviction may be utilised.  It provides:

   16—Imposition of penalty without conviction

   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.

   The terms of the section dictate that before the discretion may be exercised in favour of a defendant, the court must find both that he or she is unlikely to commit offences like those under consideration again and that good reason exists for not recording a conviction.  A finding that good reason exists must be grounded in one or more of the factors enumerated in subparagraph (b) of the section.  It can only be made after consideration of all the relevant circumstances of the offences and of the defendant.

5. The finding that the respondent was unlikely to commit such offences again is not presently challenged.  The appellant suggests however, that, having regard to the seriousness of the group of offences, it was not open to the magistrate to find good reason not to record a conviction, based either on the respondent’s character, or on the mooted trip to the United States.  It does not appear the respondent had any present plans to make such a trip; only that he hoped one day to do so.  In any event, any such plan or arrangement would not, on the face of itself, provide reason for exercising the discretion in favour of the respondent.

6. There is no present need to examine the matter in more detail. It is sufficient to indicate that I agree with the appellant’s submission that the magistrate erred in exercising the powers granted by s 16. The respondent does not seek to uphold that exercise of discretion. Effectively, it is conceded that the penalty was manifestly inadequate. Accordingly, it is appropriate to set aside the penalty. Since the decision not to impose a conviction was part of an entire penalty imposed for all four offences, it is appropriate that the respondent be dealt with afresh. I have considered whether I should proceed to dispose of the matter. The magistrate apparently accepted at face value certain submissions made on the respondent’s behalf. I would not necessarily have done so. Therefore, were I to deal with the matter, I would need to hear the submissions afresh and it might be necessary to go into evidence. In those circumstances I think it better to remit the matter for rehearing before another magistrate.

7. The orders I make are:

   1.allow the appeal;

   2.set aside the orders made by the magistrate;

   3.Remit the matter for hearing before the Magistrate’s Court.