Ratcliff v Police No. Scgrg-97-1395 Judgment No. S6427

[1997] SASC 6427

RATCLIFF  v  POLICE

Perry J   (ex tempore)

In this matter the appellant pleaded guilty in the Magistrates Court sitting at Port Augusta to what can only be described as a spate of offending committed in and around Port Augusta between the months of August 1995 and November 1996.  There were no less than twelve counts, including several counts of breaking and entering and several counts of larceny.

One of the larceny charges, the most serious of them, related to a motor car stolen at Orroroo in November 1996, said to be worth $6,000.  The car was, on the evidence before the court, stripped and rendered valueless.

The learned sentencing Magistrate imposed a total head sentence of 24 months, against which he set a non-parole period of 14 months.  In addition, he ordered the payment of $6,000 by way of compensation with respect to the theft of the motor car.

As to one other matter, namely a charge of being in possession of Indian hemp for sale, the learned sentencing Magistrate noted erroneously that there was a prior conviction.  He went on to impose a fine of $1,000.

In addition, there were court fees and costs overall amounting to $1,111.

The learned sentencing Magistrate set two years and six months to pay the court fees and costs.  In respect of the fine, he ordered three years to pay.  As to the compensation, he ordered payment within three years.

The notice of appeal is confined to the orders made with respect to the fine and compensation.

As to the latter, the gravamen of the appeal is that in view of the fact that the appellant lives on Social Security, that he has no realistic prospect of employment and will be incarcerated for a minimum of 14 months, he should not have been ordered to pay the compensation. Having regard to s13(1) of the Criminal Law (Sentencing) Act 1988, it was contended that within the meaning of that section the defendant would be "unable to comply" with the order, and it should be quashed.

Quite properly, if I may say so, Ms Rusalen for the Crown conceded that in the particular circumstances of the case, it was inappropriate to order the payment for compensation.  I will therefore, in due course, quash that order.

That leaves the question of the fine imposed on the charge relating to the possession of Indian hemp.  As to that aspect of the matter, as I have noted, the learned sentencing Magistrate erroneously dealt with the matter on the footing that this was a second offence.  The maximum penalty is $2,000 or two years imprisonment, and the offence may be dealt with summarily, as was the case here.

The circumstances of the offending with respect to that charge appear in the affidavit of the prosecutor.

The appellant was spoken to on 25 September 1996 at the premises which he occupied at Port Augusta.  In the rear yard police located 8 pots containing 8 cannabis plants, approximately 30 cm in height.  In the laundry they located approximately 100 plastic bags, about 8 by 5 centimetres in dimension.  Some larger bags were found containing less then 100 grams of cannabis and two of the smaller plastic bags contained less than 25 grams.

During the course of a subsequent video interview, the appellant admitted that the items which were seized were his. He informed the investigating police officers that the plants in the rear yard were for his personal use, as was the larger bag of cannabis.  He admitted, however, that the two smaller bags of cannabis were packed into $25 and $50 sized bags from the contents of the larger bag.  He said that he was going to smoke the contents of the $25 bag and sell the $50 bag to help pay for the buying of the larger bag.  He admitted to selling about a bag a week.

Viewed in isolation, I do not think it could be said that the fine of $1,000 imposed on the possession charge was manifestly excessive.  However, it can be said that the appellant did make full and frank admissions, including his admission as to the sale, although he has not been charged with trading.

Be that as it may, it seems to me that the fairness of the penalty imposed with respect to the possession charge must be related to the overall sentencing package and also, to a degree, to the ability of the appellant to pay a fine.

In the particular circumstances of this case, and having regard to concessions quite properly made by counsel for the respondent, I am disposed to reduce the amount of the fine to $300, leaving the time to pay at three years.  This should give the appellant an opportunity to pay within the period which follows after his expected release from gaol in 14 months.

I emphasise, however, that this case should not be regarded as a precedent defining the appropriate level of a fine for possession of this quantity of Indian hemp.  My adjustment of the penalty is a reflection of the other factors peculiar to this case to which I have just referred.

The formal order is that the order under appeal is varied to the intent that the order for payment of compensation is quashed and the fine is reduced to $300.  The various orders made by the learned sentencing Magistrate are in all other respects confirmed.

There will be no order as to costs.