Pollard v Police

Case [2010] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLLARD v POLICE

[2010] SASC 23

Judgment of The Honourable Justice Gray

22 February 2010

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - EXTENT OF OBLIGATION TO GIVE REASONS - GENERALLY

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - CONSTITUTION OF COURT AND GENERALLY - SOUTH AUSTRALIA

Appeal against the recording of conviction - defendant and appellant pleaded guilty to cultivating four cannabis plants contrary to section 33K(2) of the Controlled Substances Act 1984 (SA) - conviction imposed by a special Justice and defendant fined $300.00 - no reasons for decision provided - defendant appeared unrepresented - whether special Justice erred by failing to invite defendant to make submissions regarding discretion to proceed without recording a conviction - whether special Justice erred by recording a conviction - office of special justice - question of jurisdiction of the special Justice.

Held: appeal allowed - defendant denied procedural fairness - absence of reasons constituted error - failure of special Justice to inform defendant of potential to proceed without recording a conviction constituted error - matter considered afresh - no conviction recorded.

Controlled Substances Act 1984 (SA) s 33K(2) and s 45A; Controlled Substances (General) Regulations 2000 (SA) reg 7 and reg 9B(1); Magistrates Court Act 1991 (SA) s 3, s 7A and s 9A; Acts Interpretation Act 1915 (SA) s 4; Justices of the Peace Act 2005 (SA) s 7 and s 8; Criminal Law (Sentencing) Act 1988 (SA) s 9, s 16 and s 39, referred to.
Corporation of the City of Enfield v Developments Assessment Commission (1999) 199 CLR 135; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185; Attorney-General (Commonwealth) v Queensland (1990) 25 FCR 125; Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77; Jones v Police [2009] SASC 137; Shrubsole v Rodriguez (1978) 18 SASR 233; Leslie v Police [2001] SASC 270; Corak v Police [2006] SASC 172; O’Donoghue v Police [2007] SASC 169; Germain v Police [2006] SASC 340; Hodgson v Police [2002] SASC 35; Hodgins v Police [2008] SASC 176; Sims v Police (2000) 30 MVR 524; O’Hanlon v South Australia Police (1994) 62 SASR 553; MacGregor v Police (1995) 66 SASR 269; Buttigieg v Police (1999) 74 SASR 229; McAvaney v Quigley (1992) 58 A Crim…

Continue reading Pollard v Police

Sign in free to access the full text

Details
AGLC
Pollard v Police [2010] SASC 23
Case
[2010] SASC 23
Decision Date

CaseChat Overview and Summary

The case of Pollard v Police involves an appeal by the defendant against the recording of a conviction. The defendant pleaded guilty to cultivating four cannabis plants in contravention of section 33K(2) of the Controlled Substances Act 1984 (SA). The special Justice imposed a fine of $300.00 but did not provide any reasons for the decision. The defendant appeared unrepresented at the proceedings. The central legal issues in the case revolve around whether the special Justice erred by not inviting the defendant to make submissions regarding the discretion to proceed without recording a conviction and whether the special Justice was correct in recording a conviction. The Court also considered the office of the special Justice and the question of the special Justice's jurisdiction in this context.

The Court found that the special Justice had denied procedural fairness to the unrepresented defendant by not following a checklist that was intended to guide the Court when dealing with unrepresented defendants. The special Justice also seemed unaware of relevant Full Court authority that addressed the discretion not to record a conviction in similar circumstances. Given the defendant's young age, lack of prior convictions, remorse, and cooperation with the police, the Court deemed it appropriate to exercise the discretion not to record a conviction. The Court concluded that the special Justice had erred in recording the conviction and allowed the appeal, setting aside the conviction. The special Justice's lack of legal training and failure to provide reasons for the decision were also highlighted as contributing factors to the error.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The matter was not expiable as it was not a simple cannabis offence within the above definition. Background During October and November 2008, the defendant, with another young man, took part in the cultivation of four cannabis plants. At that time the defendant was aged 19 years and worked as an apprentice metal fabricator. On 1 November 2008 the police received information that a small number of cannabis plants were being grown along the side of a motel at Mount Gambier. The police attended and observed four cannabis plants growing in pots. All plants were less than 10cm in height. The police first spoke to the defendant’s friend who was reported for cultivating cannabis, and who named the defendant as also being involved with the cultivation. On 11 November 2008, the defendant attended the Mount Gambier Police Station and at the request of the police, agreed to a video interview. The defendant told the police that he and the other young man shared the idea of growing the cannabis from seedlings and that they both took part in the nurturing of the seedlings. The defendant said that the plants had been nurtured for about two weeks and that he was growing the cannabis out of curiosity. According to the apprehension report the defendant was extremely apologetic and remorseful for his actions. The defendant invited the police to search his residential premises if they had concerns as to his further involvement with drugs.The Appeal On 11 February 2010, I allowed this appeal and set aside the conviction recorded by the special Justice. The appeal raises several important issues. A special Justice, an officer of the Court without legal training, denied procedural fairness to the unrepresented defendant. For reasons to be discussed below, it is apparent that the special Justice had no regard to a checklist that had been prepared to provide guidance to the Court when dealing with an unrepresented defendant. The checklist provides for the name of the defendant to be inserted and for the provision of an appropriate endorsement against each item of the checklist. The checklist appears on the Court file in regard to the within proceeding. The checklist is without any entry. The reverse side of the form has been used by the special Justice to endorse the penalties imposed. As the special Justice was dealing with a matter that in the ordinary course would be heard by a Magistrate, special care and attention was required. The need for the unrepresented defendant to be properly advised of his rights by the Court was acute. The special Justice was apparently unaware of recent Full Court authority from this Court, addressing the discretion not to record a conviction in an almost identical factual circumstance.[1] This recently published Full Court authority followed earlier judgments of the Court to a similar effect. The Police were represented before the special Justice by a legally untrained prosecutor. As mentioned above, the defendant was unrepresented. In the circumstances, not only was there a denial of procedural fairness to the defendant, but the Court was apparently totally unaware of the guidance provided by decisions of this Court. It is to be observed that this would appear to be a direct consequence of the lack of adequate legal training of those concerned with the administration of justice in this case.[1] R v Lambert [2009] SASC 307 (Duggan, Sulan & Kourakis JJ).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J
As earlier observed, in the present proceeding the defendant was aged 19 years at the time of the offence. He was a first offender and had an otherwise unblemished record. The offence with which was charged was at the lower end of seriousness for offences involving the cultivation of cannabis. The defendant was undertaking an apprenticeship which he commenced in 2007. He had a good employment record. The defendant was contrite and remorseful, frank with the police at the earliest opportunity, entered a plea at the earliest opportunity and had learnt his lesson. There is good reason in such a case for a Court to proceed without recording a conviction. Conclusion In the circumstances I consider it appropriate to allow the appeal and to proceed without the recording of a conviction.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

A further issue in relation to the jurisdiction of a special justice arose on the hearing of the appeal. Section 7A of the Magistrates Court Act stipulates that the Court, when constituted by a special justice, may not impose a sentence of imprisonment.[33] A consequence of this stipulation is that like offenders facing proceedings before the Magistrates Court may be exposed to different regimes. Although practices in place in the allocation of matters within the Court may minimise this risk, the risk nevertheless exists. However it is unnecessary in these reasons to fully explore the potential for discrimination as this issue does not arise in any material way in these proceedings. [33] Magistrates Court Act 1991 (SA) section 7A.Consideration of the Appeal The defendant was a young man at the time of his offence. Significantly, he was a first offender. As the antecedent report outlines, the defendant admitted his offending to police at the first opportunity, was co-operative and proceeded to plead guilty in court at the earliest opportunity. In addition, the defendant expressed his regret, and demonstrated contrition and remorse for his offending. All of these are matters which fall to be considered under section 16(b). These matters also militate against any suggestion that he would be likely to reoffend. As earlier observed, the Court of Criminal Appeal in Lambert, unanimously set aside a conviction recorded by a District Court Judge with respect to the offence of cultivating two cannabis plants contrary to section 33K(2) of the Controlled Substances Act. As extracted earlier, the Court considered the significant effect that the recording of a conviction can have on an offender and outlined the following factors as relevant:[34]The offence could not be described as trifling. On the other hand, it is at the lower end of seriousness for offences involving the cultivation of cannabis. The appellant is a young man. He has no prior convictions. The experience of having been taken into custody and interviewed by the police would have acted as a significant lesson to him. He was frank with the police, and has co-operated throughout. He has demonstrated his contrition by his early plea of guilty. He has taken steps to cease using cannabis by consulting with his doctor. I am satisfied that he is unlikely to offend in the future. He is likely to make a contribution to the community, and be a law-abiding citizen.A conviction has a real potential to handicap the appellant in gaining employment. The appellant is in the final year of his apprenticeship as an electrician, and a conviction may affect his ability to work as an electrician. This is an appropriate case in which to exercise the discretion not to record a conviction.[34] R v Lambert [2009] SASC 307 at [23]-[24]. As earlier observed, in the present proceeding the defendant was aged 19 years at the time of the offence. He was a first offender and had an otherwise unblemished record. The offence with which was charged was at the lower end of seriousness for offences involving the cultivation of cannabis. The defendant was undertaking an apprenticeship which he commenced in 2007. He had a good employment record. The defendant was contrite and remorseful, frank with the police at the earliest opportunity, entered a plea at the earliest opportunity and had learnt his lesson. There is good reason in such a case for a Court to proceed without recording a conviction. Conclusion