R v Bensen No. Sccrm-00-198

R v BENSEN
[2000] SASC 325

Court of Criminal Appeal: Prior, Debelle and Lander JJ

1................ PRIOR J......................... I invite Debelle J to give some reasons on behalf of the court.

2................ DEBELLE J.... This is an appeal against sentence.

The appellant pleaded guilty to possessing 4.65 kilograms of cannabis for supply. He was sentenced to imprisonment for a period of 34 months. The sentencing judge fixed a non-parole period of nine months. The appellant appeals on the ground that the sentence was manifestly excessive.
The maximum penalty for this offence is 10 years imprisonment or a fine of $50,000 or both.
The appellant is aged 75 years. He is married. He and his wife live on a farming property near Kadina. He attended primary school and then went to work on his father’s farm. He therefore did not receive any secondary education. He has worked all his life on his farm. He has built up the farm from a holding of 600 acres to one of 2,800 acres.
The appellant and his wife have five children, one son and four daughters. The son, who is aged 45 years, cannot assist with work on the farm as he was severely injured in an accident some 17 years ago when he lost part of one leg. The son is now an invalid pensioner with a small business in Kadina. In the past 15 years the appellant has run the farm with help from his wife and their four daughters.
The appellant performs most of the labour on the farm on which he grows crops, in this year barley and field peas, and grazes sheep. In addition, he breeds ostriches. The appellant’s wife provides assistance by maintaining the homestead and keeping the books. It is said that if the appellant is required to serve a period of imprisonment, the consequences to the farm operations would be significant.
The appellant’s youngest daughter uses cannabis as a form of analgesic to assist her in managing pain in one of her knees. In 1995 she fell from a piece of farm equipment while assisting her father. She badly twisted her knee but did not then seek treatment for it. In 1997 she fell during a softball match and suffered cruciate ligament damage. Thereafter, she had three operations to correct the damage to her knee. She is said to experience constant pain from the injury. She has been diagnosed suffering from a synapse lesion. The symptoms are a continual collapsing of the knee with the knee clicking in and out as the joint is moved. She has been prescribed analgesics, but prefers the analgesic qualities of cannabis.
This daughter asked her father to grow cannabis for her so that she could use it as an analgesic. He foolishly agreed to do so. Although the quantity of cannabis was more than enough for the needs of the appellant’s daughter, the prosecution accepted that there was no commercial element involved in the appellant’s possession of the cannabis.
The cannabis was found hidden in two places on the appellant’s farm. Some was found in a plastic bag in the roof of the house on the appellant’s farm. The greater part was found in plastic bags hidden in part of a bale of hay.
The appellant originally pleaded not guilty. When arraigned, he again pleaded not guilty. A trial date was fixed. A few days before the trial he pleaded guilty. Because of the lateness of the plea, the sentencing judge gave the appellant a very small discount for his plea of guilty.
It appears that the factual basis upon which the appellant pleaded guilty was the same as had been put to the prosecution as about the time of the committal. However, it was a condition of that plea of guilty that the prosecution should remain silent in response to a submission that the appellant should receive a suspended sentence. The prosecution was not prepared to accept that condition. One might add, rightly so. Such a course does not indicate any contrition or remorse on the part of the appellant.
The fact that the factual plea was the same when the appellant ultimately pleaded guilty is not a sufficient reason for any criticism of the trial judge for giving a small discount for the plea of guilty. I repeat, the appellant’s conduct was hardly consistent with any contrition or remorse on his part. A further reason for a small discount is that the prosecution case against the appellant was very strong .
The appellant has a previous offence of possessing cannabis for sale. On 24 April 1992 he was sentenced to a period of 15 months imprisonment which was suspended on the appellant entering into a bond to be of good behaviour for two years. The appellant has no other convictions.
The sentencing judge had regard to all of those factors. He considered whether he should suspend the sentence. However, in view of the substantial amount of cannabis and the appellant’s previous conviction for a similar offence, he considered it inappropriate to do so. Because of the appellant’s age and the effect that a sentence of imprisonment would have on his dependants, the sentencing judge said that he would provide some leniency by fixing a low non‑parole period.
In my view, given the basis of the plea and the absence of a commercial intent, the sentence is too high and outside the proper exercise of the sentencing discretion. I would fix a head sentence of 24 months which I would reduce to 22 months on the basis of the plea of guilty.
In doing so, I have regard, as is apparent, to the plea of guilty. I have regard also to the amount found in the appellant’s possession, not as indicating that there was a commercial element, but instead as indicating that it was not simply an isolated small amount available for occasional supply, but an amount available for continual supply. I have regard also to the fact that the accused had a clear warning as to the consequences of having cannabis in his possession either for sale or supply. He, nevertheless, ignored that warning. I have regard also to his age. Old age is a mitigating factor. The extent to which the sentence should reflect general deterrence may be somewhat reduced if the appellant is very elderly.
Given the reduction of the head sentence, it is appropriate to reduce the non-parole period. I would reduce the non-parole period to six months.
I turn to the question whether the sentence should be suspended. Two important factors for consideration are the age of the appellant and the fact that, if the sentence is not suspended, he will not be present to work the farm and that may cause difficulties in running it. But that is not in itself sufficient cause to suspend the sentence. Difficulties in conducting a business do not necessarily justify suspending a sentence.
In this case the sentencing judge did recognise the need for some leniency by fixing what in other circumstances would be a low non-parole period. Because of the appellant’s prior conviction he did not think it appropriate to suspend the sentence. I agree with that approach. I would not suspend the sentence.
For these reasons, I would reduce the head sentence and the non-parole period in the manner I have indicated. I would otherwise dismiss the appeal.

LANDER J. It is difficult, in any circumstances, not to feel sympathy for a 75-year-old man being sent to prison. However the sentence of imprisonment must be understood in light of uncontroverted facts.
When aged 67, the appellant was sentenced to be imprisoned for a period of 15 months, which sentence was suspended upon him entering into a bond to be of good behaviour for a period of two years. The sentence of imprisonment was for the more serious offence of possessing cannabis for sale.
The amount of cannabis involved in this offence, namely 4.6 kilograms, is significant. The cannabis also has a significant value.
The appellant did not co-operate with the police. Whilst that could not give rise to a higher penalty, it is a reason for not reducing the penalty.
He did not plead guilty until a few days before his trial. It has been put that he offered to plead guilty on an earlier occasion, but there was a disagreement as to whether or not the Crown would stand mute during the sentencing process. A guilty plea is evidence of contrition and remorse. The earlier it is offered, the more likely it is that the contrition and remorse is genuine. This late plea did not warrant any more credit than was given by the sentencing Judge. Indeed, it was only one week before the second listing of the trial that he pleaded guilty.
The appellant must be sentenced on the basis that he grew this cannabis and was possessed of it for the benefit of his youngest daughter, who was to use it for therapeutic purposes for a knee injury from which she suffers. Whilst accepting that submission, it does not seem to me to matter much whether the cannabis is grown for therapeutic purposes or used for relaxation or pleasure. The fact is, possession for any of those reasons is contrary to the law.
The clear policy of the law is to prevent the use of marijuana for any of those reasons. Marijuana is not to be legally administered for therapeutic or any other reason. Moreover, Parliament has made it clear by the penalty which it has provided for this offence that possession for supply is to be treated as a serious offence. The appellant well knew that his possession of marijuana for supply was unlawful.
However, notwithstanding all of those matters, I do believe that the head sentence which was imposed, in the circumstances of this case, was not only severe, as was put by the respondent, but was manifestly excessive. I have reached that conclusion by comparing the sentence with other sentences for like offences for possession for supply. I think in this case the sentencing Judge may have wrongly assumed in the sentencing process an element of commerciality and for that reason arrived at a head sentence which was too high.
In my opinion, an appropriate head sentence would have been 24 months, which should have been reduced by the credit given by the learned sentencing Judge for two months for the late guilty plea. I agree, therefore, with a head sentence of 22 months.
I think, having regard to the appellant’s age, his family circumstances, his occupation, and the circumstances in which the offence was committed, it would be appropriate to set a shorter non-parole period than that set by the sentencing Judge. I agree with a non-parole period of six months.
I would not exercise my discretion to suspend the sentence, notwithstanding the factors to which I have referred.
In my opinion, the appeal should be allowed, the head sentence reduced to 22 months, and a non-parole period of six months set.

34.............. PRIOR J......................... I agree that the appeal against sentence should be allowed, the sentence of imprisonment imposed set aside and a sentence of 22 months with a non-parole period of six months substituted for that imposed in the court below. This is not a case where good reason should be found to suspend the sentence, notwithstanding the appellant’s personal circumstances given the previous conviction and the circumstances of the current offending.

The order of the court therefore is: appeal allowed, set aside the sentence imposed, substitute a sentence of 22 months’ imprisonment, and a non-parole period of six months in lieu of the nine months imposed in the court below.

[2000] SASC 325

18 September 2000