R v Smith - [2006] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2006] SASC 156
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
2 June 2006
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING
Offence of taking part in the production of cannabis - s 32(1)(a) Controlled Substances Act 1984 - Production of cannabis not for commercial purposes - Appellant convicted of multiple cannabis related offences on four prior occasions - Ongoing cannabis use - Highest previous penalty $300 fine - Acknowledgement by appellant of appropriateness of suspended sentence - Whether $2000 fine in addition to suspended six month gaol sentence manifestly excessive in the circumstances - Deterrent effect of suspended sentence considered - Amount of fine excessive - Appeal allowed (majority) - Fine reduced to $1000.
Controlled Substances Act 1984 s 32, s 44, referred to.
Elliott v Harris (No 2) (1976) 13 SASR 516; R v Faniglietti [2005] SASC 489; R v Leung and Monaghan (1999) 202 LSJS 243; R v Caliendo (1997) 190 LSJS 24; R v Hunter (1995) 80 A Crim R 46; Markarian v The Queen (2005) 215 ALR 213; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v SMITH
[2006] SASC 156
Court of Criminal Appeal: Bleby, Gray and Anderson JJ

BLEBY J: This is an appeal against sentence. The appellant pleaded guilty to one count of taking part in the production of cannabis contrary to s 32(1)(a) of the Controlled Substances Act 1984.
The appellant was charged with this offence following the execution of a search warrant by police on premises at Prospect occupied by the appellant and his partner. Police located at the premises 27 small cannabis plants being grown hydroponically in a small shed, and 4 more plants being grown in pots in the rear garden of the property. The hydroponic set-up was described by the learned sentencing Judge as “relatively unsophisticated”. Police located a ballast box and a 400 watt light. Police also located 19 clones in the shed.
A disputed facts hearing was conducted in order to determine the basis upon which the appellant was to be sentenced for the offence. The dispute was whether he should be sentenced on the basis that the crop was grown for commercial purposes.
The appellant gave evidence at the hearing. His evidence was that he had been a user of cannabis for many years and was still a user, even after the present charges were laid, and that he shared the cannabis he grew with his partner, a neighbour and friends.
The appellant also gave evidence that the relatively unsophisticated set‑up, which he described as a “sea of green” process, was one that ensured that the plants would not grow large – only one stalk and one bud – and that the yield from each plant would only be in the range of 10-15g. That accounted for…

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.

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Details

Case: [2006] SASC 156
Decision Date: 2 June 2006

CaseChat Overview and Summary

In the case of R v Smith, the appellant was convicted of multiple cannabis-related offences and was sentenced to a six-month suspended gaol term and a $2,000 fine. The appellant had a history of cannabis use and had been convicted on four prior occasions. The highest penalty imposed in the past was a $300 fine. The appellant acknowledged the appropriateness of a suspended sentence, considering his ongoing cannabis use. The appeal focused on whether the $2,000 fine, in addition to the suspended gaol sentence, was manifestly excessive in the circumstances. The deterrent effect of the suspended sentence was also considered.

The legal issue before the court was whether the $2,000 fine, in addition to the six-month suspended gaol sentence, was manifestly excessive in the circumstances. The court had to consider the deterrent effect of the suspended sentence, the appellant's history of cannabis use, and the appropriateness of the sentence in light of previous penalties imposed. The majority of the court found the fine to be excessive, and the appeal was allowed, reducing the fine to $1,000.

The court reasoned that a fine of $2,000, while not the maximum possible fine of $50,000, could still be considered excessive in the given circumstances. The court acknowledged that if the appellant had difficulty making immediate payment, a process was available whereby he could apply to the court for manageable terms of payment to be fixed. The majority of the court found that the amount of the fine was excessive and allowed the appeal, reducing the fine to $1,000. The judge who dissented believed that the appeal should be dismissed and that the original sentence should be confirmed. However, the majority of the court found that the sentence was manifestly excessive and substituted a fine of $1,000.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A fine of $2,000, as against a maximum possible fine of $50,000, can only be described as modest. It is not a result that could, in the High Court’s words, be described as “unreasonable or plainly unjust”. If the appellant had difficulty making immediate payment, a process is available whereby he could apply to the court for manageable terms of payment to be fixed.Conclusion I would dismiss the appeal. ANDERSON J: I agree with the reasons of Bleby J. I would allow the appeal and substitute a fine of $1,000. In all other respects, I agree that the sentence of the sentencing Judge should be confirmed.

Ratio Decidendi

Legal Principle Established

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