R v Lambert - [2009] SASC 307

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LAMBERT
[2009] SASC 307
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice Kourakis)
30 September 2009
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - INJUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY
Appeal against sentence - appellant pleaded guilty to cultivating two cannabis plants - District Court Judge imposed a fine of $150 and recorded a conviction - whether counsel was given sufficient opportunity to make submissions in deciding that a conviction should be recorded - appeal allowed.
Controlled Substances Act 1984 (SA) s 33K(2); Criminal Law (Sentencing) Act 1988 (SA) s 9, referred to.
R v Yousef [2005] SASC 203; R v Briese (1996-1997) 92 A Crim R 75, discussed.
Jones v Police [2009] SASC 137; Moore v Police [2005] SASC 436; O'Hanlon v Police (1994) 62 SASR 553; W v Marsh (1983) 35 SASR 333, considered.

R v LAMBERT
[2009] SASC 307
Court of Criminal Appeal: Duggan, Sulan and Kourakis JJ

DUGGAN J: In my view the appeal should be allowed.
I agree with the reasons of Sulan J and the orders proposed by him.
SULAN J: The appellant pleaded guilty in the Magistrates Court to cultivating two cannabis plants, contrary to s 33K(2) of the Controlled Substances Act 1984 (SA). The maximum penalty for the offence is a fine of $500. He also pleaded guilty to trafficking in a commercial quantity of a controlled drug, contrary to s 32(2) of the Controlled Substances Act 1984. He was committed for sentence to the District Court. When he appeared before the District Court, he applied and permission was granted to him to change his plea in respect of the charge of trafficking. The Crown withdrew that charge. Therefore, he was sentenced only in respect of the offence of cultivation. A Judge of the District Court imposed a fine of $150 and recorded a conviction.
The appellant appeals the sentence and, in particular, the recording of the conviction.
The facts
Late in the evening of 27 June 2008, police attended premises at Salisbury Downs. A strong odour of cannabis was emanating from the house. The appellant was at the house. He directed the police to a room where the police observed two large cannabis plants growing hydroponically under lights in the room. The plants had been partially stripped. There was loose cannabis packed in two milk crates which had been lined with garbage bags.
The appellant told the police that he had grown the plants from seedlings using hydroponic equipment he had purchased. The plants had grown much larger than he anticipated. He told the police that he was growing the cannabis solely for his own use. He was a heavy smoker of the drug.
The appellant was charged with cultivating two plants and with trafficking. The trafficking charge related to the cannabis in the milk crates. The charge of trafficking eventually was discontinued in the District Court because the Director of Public Prosecutions accepted that the appellant intended to use the cannabis solely for himself, and that he had no intention to deal in the drug.
Proceedings before the District Court
Counsel for the Director advised the District Court Judge that he was required only to deal with the summary offence. The District Court Judge was asked, and he agreed, to exercise the jurisdiction of a Magistrate and sentence the appellant[1]. Counsel for the Director indicated that defence counsel was not in a position to make submissions, and requested that the Judge adjourn the matter for a short period so that counsel for the appellant could prepare her submissions.
[1] Section 22 Magistrates Act 1983 (SA).
The Judge asked how many plants were involved. When he was told there were only two and the maximum penalty was a fine of $500, the Judge asked counsel for the appellant whether her client could afford a fine. There then followed an exchange between counsel and the Judge.
HIS HONOUR:     Can your client afford a fine?
MS GIORDANO: There’s no issue with a fine. He works full time so there’s no problem with him being able to accommodate that. The only other issue I would raise is the issue of no conviction. He doesn’t have any other prior convictions.
HIS HONOUR:     None at all?
MS GIORDANO: No.
HIS HONOUR:     In my view, it’s appropriate to deal with the matter by way of fine. I fine Mr Lambert $150.
MS GIORDANO: Is that without conviction?
HIS HONOUR:     No, with conviction.
The appeal
Counsel for the appellant complains that the Judge erred in deciding that a conviction should be recorded. She submits that she was not given an opportunity to make submissions to the Court. She submits that if she had been given an opportunity to make submissions, she would have submitted that this was an isolated offence committed by the appellant, who was growing the cannabis for his own purpose. She would have informed the Court that the appellant, who was 20 years of age at the time of the offence, was in full-time employment, that this was his first offence, and that he had sought treatment for his drug use to assist with his rehabilitation. She would have submitted that the appellant is unlikely to commit any offence in the future. Further, she would have informed the Court that the appellant is undertaking an electrician’s apprenticeship and intends to apply for his electrician’s licence. A conviction for a drug offence could have serious consequences for his future employment.
The failure to give reasons
I accept that counsel wished to make further submissions on whether a conviction should be recorded. However, she did not make this clear to the Judge. Events moved rapidly, and the Judge sentenced the appellant before counsel had an opportunity to complete her submissions.
Section 9 of the Criminal Law (Sentencing) Act 1988 (SA) imposes an obligation on the courts to provide reasons for sentencing. That section provides:
(1) A court must, upon sentencing a defendant who is present in court –
(a)state its reasons for imposing the sentence; and
(b)cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(2) The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
In the unusual circumstances of the hearing, the appellant’s counsel was deprived of the opportunity to make detailed submissions. Furthermore, the sentencing Judge did not give reasons for his decision to record a conviction.
The District Court has a large workload. There is pressure to complete matters efficiently and without undue delay. Judges are required to deal with extensive lists of cases, and have onerous responsibilities in having to sentence many offenders.
Nevertheless, a sentencing court is required to give reasons for imposing a sentence, albeit that those reasons might be brief. Section 9(2) provides that the validity of the sentence is not affected by a failure to give reasons. Nevertheless, a failure to do so amounts to an error.[2]
[2] Jones v Police [2009] SASC 137, [37]; Moore v Police [2005] SASC 436; O’Hanlon v Police (1994) 62 SASR 553.
The failure of the District Court Judge to have heard submissions and, consequently, his failure to give reasons amounts to an error which requires this Court to consider the application afresh.
Should a conviction have been recorded?
Section 16 of the Criminal Law (Sentencing) Act 1988 provides a court with a discretion not to record a 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 pre-conditions to enliven the discretion are that the court must propose either that a fine be imposed, that a sentence of community service be undertaken, or both. The court must form the opinion that the defendant is unlikely to commit a similar offence again. The court is then required to have regard to the factors referred to in s 16(b) and reach a conclusion that good reason exists for not recording a conviction.
The recording of a conviction has a punitive aspect. In R v Yousef,[3] Sulan and Layton JJ observed:[4]
A conviction does not merely record a finding that the person committed the crime charged: it condemns him for the crime; it is a communicative act, communicating censure to the convicted person. The recording of a conviction acts as a general deterrent to others who may be inclined to offend in a similar way.
There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct. A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.
[3] [2005] SASC 203.
[4] Ibid, [60] – [62].
The recording of a conviction can have serious consequences for an individual, as it may affect his future employment prospects, his ability to travel and his acceptance into professional or trade associations linked with his profession or trade. A submission to a court not to record a conviction is a matter that requires detailed consideration by the court.
In R v Briese,[5] the Queensland Court of Appeal observed that the question of whether to record a conviction is one of considerable importance. The Court observed that there are persons and organisations, including prospective employers, companies such as credit providers, and government departments such as immigration authorities, which have a legitimate interest in knowing the truth about the character of persons who deal with them. Furthermore, if a court concludes that, in the circumstances of a particular case no conviction is to be recorded against an offender, that fact is of significance to any person or organisation which may have a legitimate interest in the background and character of that offender.[6]
[5] (1996-1997) 92 A Crim R 75, 79-81.
[6] W v Marsh (1983) 35 SASR 333, 341-2.
Parliament has recognized that the recording of a conviction can have a significant deleterious effect upon an offender. The offender will carry the conviction with them into many walks of life. It acts as continual punishment and may be a factor adverse to the rehabilitation of an offender. It follows that power has been given to courts not to record a conviction. I agree with the observations made in Briese, that a court will be more easily persuaded against the recording of a conviction where there are no prior convictions, or a very minor history, and where the offence in question is a so‑called “victimless” crime.
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.
I would allow the appeal, and I would revoke the order recording a conviction. I would not interfere with the monetary penalty of $150.
KOURAKIS J: I agree that the appeal should be allowed and join in the orders proposed by Sulan J for the reasons he gives.
I would only add that it is not obvious to me that in sentencing the appellant the District Court Judge was exercising the jurisdiction of a Magistrate pursuant to s 22 of the Magistrates Act 1983. In my view it is arguable that the District Court has jurisdiction to sentence persons committed to it for sentence on summary offences pursuant to s 105(2) of the Summary Procedure Act 1921. That jurisdiction appears to be conferred by a combination of s 102(3) of the Summary Procedure Act 1921 and s 9(4) of the District Court Act 1991.[7]
[7] Jurisdiction may also be conferred by s 9(3) of the District Court Act 1991 cf Tarasenko v Boylan (1992) 58 SASR 587. See also R v Hackett (1995) 64 SASR 471 and R v Adams (1995) 66 SASR 284.
If the District Court did not have jurisdiction I would be prepared to deal with this matter as if it was an appeal brought pursuant to s 42 of the Magistrates Court Act 1991 which has been referred to the Full Court.