R v Bell No. Sccrm-98-104 Judgment No. S6771

[1998] SASC 6771

R v BELL
[1998] SASC6771

Perry J   (ex tempore)

1. The appellant appeals against the sentences imposed upon him in the District Court sitting at Mount Gambier, on his conviction following his plea of guilty to three drug related offences.  They were; producing cannabis, possessing cannabis for supply and possessing implements for the consumption of cannabis.

2. In the court below the appellant was represented by counsel.  After hearing his submissions, the learned sentencing judge sentenced the appellant to imprisonment for 20 calendar months on the production charge.  In relation to the charges of possession for supply and possessing implements, he imposed a single penalty, that is to say a fine of $1,500.  He went on to set a non-parole period of 14 calendar months.

3. The sentence of imprisonment was suspended upon the entry by the appellant into a bond in the sum of $1,000, to be of good behaviour for 24 calendar months.

4. There were other conditions, in particular that during the term of the bond the appellant agreed not to be in possession of and to abstain from consuming any illicit drug of any type, save that which might be prescribed by a medical practitioner, and would not produce, possess, sell or distribute any such drugs.

5. For the term of the bond the learned sentencing judge directed that the appellant be under the supervision of a probation officer.

6. The appeal was brought out of time, but an extension was granted at the time leave to appeal was given.

7. The appellant complained that the sentence was manifestly excessive; that the learned sentencing judge placed undue reliance on the appellant's antecedents; that he erred in imposing a condition that the appellant not be in possession of and abstain from consuming any illicit drugs; and finally, that the fine was manifestly excessive.

8. The appellant is a 45 year old self-employed nursery planner.  About 20 years ago he had the misfortune to suffer a motor vehicle accident, which caused a spinal injury, with the result that he is now a paraplegic confined to a wheelchair.

9. According to the antecedent report which was before the learned sentencing judge, the appellant came before the Children’s Court in 1969 on larceny charges, which were dealt with without proceeding to a conviction.  In 1973 he had two separate court appearances involving possession of cannabis and cultivation of Indian hemp.  On the former he was fined, and on the latter he was given a suspended sentence on his entry into three year good behaviour bond, which apparently he adhered to.

10. His only other convictions were for driving with excess blood alcohol.  He was convicted of seven of those offences between 1973 and 1984.  No convictions are recorded since then.

11. The charges in question resulted from the attendance by police officers at the appellant’s house on 1 March 1997.  They found 22 cannabis plants, approximately 120 centimetres tall, in a back room, and a further 15 plants in the back garden.   As well, there was a quantity of dried cannabis leaf in plastic bags.  In one group of bags there were some 580 grams, and there were as well two shopping bags of leaf together weighing about 350 grams.

12. When questioned by the police following the raid, the appellant made frank admissions as to the cultivation of the plants.  But he was not completely open with them as to his possession of some of the dried material which they located in a dressing table in his bedroom.

13. The appellant further admitted that he was a regular user, that he cultivated and had possession of the cannabis for his personal use only, and for social supply to friends who visited him.  He denied selling Indian hemp.

14. He said that he smoked it in the first place because he enjoyed it, but in the second place because of his muscular spasms.

15. His counsel put to the learned trial judge that his client regularly consumed marijuana of an evening to help relieve his muscle spasm symptoms and to help him sleep.  He admitted on behalf of his client that this had been going on “for a couple of years”.

16. The severity of the sentences must be considered against the maximum penalties under the Controlled Substances Act 1984 for the production of cannabis. For a production of this order, that is, 37 plants, the maximum is a fine of $50,000 and 10 years imprisonment; with respect to the dried leaf material, having regard to its weight, the maximum penalty was $2,000 and two years imprisonment.

17. The learned sentencing judge indicated that he gave credit for the plea of guilty and had, on that score, discounted the sentence which he otherwise might have imposed, by some 25%.

18. In her thorough argument presented to the court Ms Lindquist, first of all, submitted that the sentence and the sentencing remarks indicated that the learned judge had failed to give sufficient weight to the personal circumstances of the appellant, one of those circumstances being his use of the drug for medicinal purposes only.

19. She submitted also that too much weight had been given to the appellant's prior convictions.

20. She complained that the term of the bond as to non-use and possession of drugs was an unusual term, and there was no proper basis for its imposition, and that its operation would be unduly hard on the appellant.

21. As to the fine, she submitted that this was out of proportion, having regard to the seriousness of the offence, and also having regard to the limited financial means of the appellant.

22. It does appear on the face of it that the term of the sentence of imprisonment, albeit suspended, was severe.  Ms Barnett, who appeared for the respondent, very fairly conceded that it was a severe penalty, although she did not abandon the Crown's opposition to the allowance of the appeal.

23. There were certainly some circumstances of aggravation.   They were particularly the length of time over which the appellant had been offending; the fact that he was engaged in the nursery business and no doubt had skills that others might not have as to the cultivation of the plants; and further, that although the earlier convictions were some time ago, they were nonetheless relevant.

24. Ms Lindquist took the Court to some earlier authorities which she said were relevant and which tend to indicate which the sentence that was imposed was outside of the scale  commonly applied for offences of this order.

25. She referred in particular to a case of Caliendo.[1]  In that case the appellant was 46 years of age and, as in this case, claimed that his use of the drug was therapeutic and that the consumption of marijuana relieved pain and discomfort which he suffered from a back injury.

    [1] (1997) 190 LSJS 24.

26. In that case the number of plants was more, over 100, and the offence therefore attracted the higher statutory maximum.  Despite that, the Court was of the view that in all the circumstances it was appropriate to substitute a sentence of 15 months imprisonment in lieu of a sentence of 18 months imprisonment, and fixed a non-parole period of six months.

27. The court observed that because of the different circumstances in which this offence is commonly committed, the court cannot pay too much regard to the level of sentences imposed in other cases, and it is not appropriate to make nice comparisons between different cases.

28. Notwithstanding that, it does seem to me that there is weight in the submission that the sentence of imprisonment imposed in this case was outside of the punishment which the offence fairly required, and indeed, that it might properly be regarded as manifestly excessive.

29. I would, in the circumstances, consider it appropriate to reduce the length of the term of imprisonment to 15 months, against which I would impose a non-parole period of seven months.

30. As for the complaint as to the condition in the bond preventing the appellant from having possession of or dealing in any way with this drug, while the imposition of such a condition is unusual, I would not yield to the argument advanced by the appellant that it should be deleted.  The appellant, through his counsel, freely consented to the imposition of that condition.  Indeed, during the course of the submissions made by Mr Kyrmis, who appeared for the appellant in the court below, it was put to the sentencing judge that the appellant: “basically wants nothing further to do with marijuana, he will be relying on prescription drugs from now on”.

31. Ms Lindquist argued that it would be unfair and disproportionate if a minor drug offence, which might be dealt with by an expiation notice, were to trigger off the activation of the suspended sentence. But it seems to me that that course would follow, even if no condition of the kind in question had been imposed.

32. I do not think that the imposition of that condition is likely to have any effect on the prosecutorial discretion, which arises in every case, as to whether any offending should be considered as warranting any action to estreat the bond and activate the suspended sentence.

33. I would dismiss the appeal relating to the condition of the bond.

34. As to the fine, this does seem to be a substantial penalty, having regard to the maximum of $2,000.  In all the circumstances, particularly bearing in mind the limited financial means of the appellant, I would be inclined to reduce the fine from $1,500 to $500.

35. So that, in the result, I would reduce the sentence of imprisonment to 15 calendar months, the non-parole period to seven calendar months, and the fine from $1,500 to $500.  But I would not otherwise interfere with the sentence under review.

36. I would allow the appeal for that purpose.

MILLHOUSE J:                   I agree.
NYLAND J:  I agree.

MILLHOUSE J: So that the order of the court therefore is: appeal allowed to the extent of reducing the sentence of imprisonment for production of cannabis from 20 to 15 months, fixing a non-parole period of seven months, and reducing the fine for possession for supply and possession of implements from $1,500 to $500.