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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lambert

Details

AGLC: R v Lambert [2009] SASC 307
Case: [2009] SASC 307
Decision Date: 30 September 2009

CaseChat Overview and Summary

The appeal against the conviction and sentence was heard in the District Court of South Australia. The appellant, Lambert, was convicted of cultivating two cannabis plants and fined $150. Lambert argues that the District Court Judge erred in deciding to record a conviction when fining him, as this decision could have serious consequences for his future employment. Lambert's counsel contends that she was not given an opportunity to make submissions to the Court, and if she had, she would have argued that this was an isolated offence committed by Lambert for his own use, and he had sought treatment for his drug use. Lambert was 20 years old at the time of the offence, in full-time employment, and had no prior convictions. Lambert was also undertaking an electrician's apprenticeship and intended to apply for his electrician's licence, and a conviction for a drug offence could have serious consequences for his future employment.

The central legal issue in this appeal was whether the District Court Judge erred in deciding to record a conviction when fining Lambert. The court had to determine whether the appellant's counsel was given an adequate opportunity to make submissions to the Court and whether the failure to do so constituted an error that warranted interference with the discretion of the Court below. The court also had to consider the principles of justice and fairness in the context of the appellant's circumstances, including his age, employment status, lack of prior convictions, and the potential consequences of a conviction for his future employment.

The court held that the District Court Judge erred in deciding to record a conviction when fining Lambert. The court found that the appellant's counsel was not given an adequate opportunity to make submissions to the Court, and this constituted an error that warranted interference with the discretion of the Court below. The court held that the failure to give reasons for the decision to record a conviction was unjust in the circumstances, particularly given the appellant's age, employment status, lack of prior convictions, and the potential consequences of a conviction for his future employment. The court found that the recording of a conviction in these circumstances was an abuse of process, and the conviction was quashed. The court remitted the matter to the District Court for resentencing.

The final orders of the court were that the conviction be quashed, and the matter be remitted to the District Court for resentencing. The court held that the failure to give reasons for the decision to record a conviction was unjust in the circumstances, particularly given the appellant's age, employment status, lack of prior convictions, and the potential consequences of a conviction for his future employment. The court found that the recording of a conviction in these circumstances was an abuse of process, and the conviction was quashed. The court remitted the matter to the District Court for resentencing, taking into account the appellant's circumstances and the principles of justice and fairness.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.