ROONEY v Police - [2015] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROONEY v POLICE
[2015] SASC 195
Judgment of The Honourable Justice Parker
4 December 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence. The appellant had pleaded guilty to cultivating more than the prescribed number of cannabis plants and possessing prescribed equipment. The magistrate convicted the appellant on each count and imposed a single fine of $1,500 to cover both offences. The grounds of appeal were that the magistrate should not have recorded a conviction and had erred in failing to grant the full 40% discount on penalty in recognition of the appellant’s early guilty plea.
Held:
1. Appeal against the recording of convictions dismissed.
2. Appeal against the fine imposed by the magistrate allowed. The appellant re-sentenced applying the required 40% discount to impose a fine of $900.
Controlled Substances Act 1984 s 33K(1)(b), s 33LA; Criminal Law (Sentencing) Act 1988 s 10B, s 16, s 39; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 reg 7, referred to.
Mead v Police (2014) 119 SASR 223, applied.
Russel v Police [2002] SASC 27, distinguished.
Sims v Police [2000] SASC 102; R v Yousef [2005] SASC 203; R v Lambert [2009] SASC 307; Geyer v Police [2004] SASC 220; Schmidt v Police [2005] SASC 482; Kalivaci v Police [2014] SASC 14; Thomas v Police [2014] SASC 34; Terlaare v Police [2009] SASC 338, considered.

ROONEY v POLICE
[2015] SASC 195
Magistrates Appeal (Criminal):

PARKER J: This is an appeal against sentence. The appellant pleaded guilty to two offences under the Controlled Substances Act 1984. The first offence was cultivating more than the prescribed number of cannabis plants contrary to s 33K(1)(b) and the second was possessing prescribed equipment contrary to s 33LA. The magistrate convicted the appellant on each count and imposed a single fine of $1,500 to cover both offences.
The initial ground of appeal was that the magistrate should not have recorded a conviction. A second ground was latter added to the effect that his Honour had erred in failing to grant the full 40% discount on penalty in recognition of the appellant’s early guilty plea.
The respondent submitted that the appeal against conviction should be dismissed. However, the respondent conceded that the magistrate had erred by either not granting the full 40% discount on sentence provided for in s 10B of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) or, alternatively, by failing to make clear that he had done so.[1] Thus, the respondent submitted that the appellant should be re-sentenced by this Court or the matter should be remitted to the Magistrates Court 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.

Continue reading ROONEY v Police

Details

AGLC: ROONEY v Police [2015] SASC 195
Case: [2015] SASC 195
Decision Date: 4 December 2015

CaseChat Overview and Summary

The case of Rooney v Police involved an appeal against conviction and sentencing by the appellant, who was found guilty of cultivating cannabis plants. The matter was heard in the Supreme Court of South Australia. The primary legal issues the court had to decide were whether the magistrate correctly exercised his discretion in not recording a conviction and whether the sentence imposed was appropriate.

The court determined that the magistrate's decision to record a conviction was correct. Although the appellant had no prior criminal record and had taken steps to cease using cannabis and address personal issues contributing to her drug use, the court found that the appellant was conducting a sophisticated cannabis cultivation operation for personal use. The court emphasised that the appellant's conduct was ongoing and deliberate, involving the cultivation of twelve plants, significantly more than the prescribed limit of five. The court distinguished the present case from others where convictions were not recorded due to more immediate threats to employment. Additionally, the court found no good reason to exercise the discretion under the Sentencing Act to not record a conviction or to release the appellant without conviction or penalty.

Regarding the sentence, the court decided to re-sentence the appellant, applying a 40% discount for her early guilty plea, resulting in a fine of $900. The court concluded that a fine of $1,500, as imposed by the magistrate, was appropriate as a starting point, but after the discount, the fine was reduced to $900. The court dismissed the appeal against conviction and confirmed the orders for forfeiture of the plants and equipment and payment of court fees. The court will hear the parties regarding costs.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I dismiss the appeal against conviction. I have decided to re-sentence the appellant and, after taking into account the 40% discount, impose a fine of $900. Background On 11 March 2015 police attended the appellant’s home and conducted a search. Inside a locked granny flat the police found three mature cannabis plants being grown hydroponically. They also found equipment used for the growing of cannabis plants, ie five ballast boxes, four light shades and five light globes. In a nearby garden nursery the police found six cannabis seedlings together with a ballast box and a light shade. A further three ballast boxes, a light shade and 15 globes were found in a shed. The appellant admitted to police that she had been a user of cannabis off and on for about 30 years. She also admitted to purchasing some of the prescribed equipment from shops and accumulating other items from associates. The magistrate was provided with letters from the appellant, her mother and daughter. They emphasised that the appellant had taken steps to cease smoking cannabis and to deal with the personal problems that contributed to her decision to use cannabis. The family members indicated that they would support her rehabilitation. A letter from the Adelaide Unicare Family Practice Unit stated that the appellant had sought advice about ceasing her use of cannabis. At the time the appellant was sentenced she had not fully ceased use of cannabis although I was informed that she has since done so. I was also informed that she had ceased to associate with those from whom she had obtained some of the prescribed equipment.Sentencing remarks The magistrate noted that the photographs taken by police indicated that the appellant was conducting a sophisticated exercise involving substantial equipment. He had been asked to accept that she had set up the grow room herself, had collected the equipment over a period of time, was a long term user of cannabis and that this was wholly and solely her own enterprise. Despite his scepticism about all of those matters, he stated that he was prepared to deal with her on that basis. The magistrate noted that the appellant had no prior record and held that this counted heavily in her favour.[2] She was a single mother of two children, whom she supported, and was a hard-working member of the community. It had been submitted that a conviction should not be recorded as it would jeopardise her current and future employment. Against that, she had been a long term user of cannabis and was conducting a sophisticated operation, albeit for her personal use.[2] In fact, she had two convictions in the early 1990s for driving offences and one other conviction from that time. Given the years elapsed and the very different nature of the offences, I do not regard them as relevant to the present matter. The magistrate held that it was not appropriate to proceed without recording a conviction. His Honour imposed a single fine of $1,500 to cover both offences and ordered forfeiture of the plants and equipment. He did not make any reference to the grant of a sentencing discount under s 10B of the Sentencing Act on account of the appellant’s early guilty plea.The circumstances of the appellant and the offending

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that the fine of $1,500 imposed by the magistrate was appropriate as a starting point. After applying the required 40% discount I impose a fine of $900. Conclusion I dismiss the appeal against the recording of convictions on each count. I impose a single fine of $900 to cover both offences. There was no challenge to the magistrate’s orders that the appellant forfeit the plants and equipment to the Crown and that she pay the Magistrates Court fees. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Counsel for both the appellant and the respondent referred to several judgments of this Court where the exercise of the discretion not to record a conviction was considered in the context of an offence of cultivating cannabis, ie Geyer v Police,[7] Schmidt v Police,[8] Kalivaci v Police,[9] and Russel v Police.[10] I have had regard to those decisions.Consideration[7] [2004] SASC 220.[8] [2005] SASC 482.[9] [2014] SASC 14.[10] [2002] SASC 27.Recording of Conviction In light of the matters referred to in paragraph 7, I accept for the purposes of s 16(a) of the Sentencing Act that it is unlikely that the appellant will commit such an offence again. The further question under s 16(b) is whether there is good reason for not recording a conviction. Counsel submitted that there is a risk that a conviction would make it more difficult for the appellant to fulfil her ambition of working as a vocational trainer and may affect her current employment in a hotel and with a government agency. However, there was no specific information before the Court about this issue with the risk to her employment being expressed as no more than a possibility. I distinguish Russell v Police where the threat to the appellant’s employment was far more immediate and, in combination with other factors, led this Court to hold that a conviction should not have been recorded. While I will sentence on the basis that the cannabis was being grown for personal use, the fact is that the appellant was growing twelve plants (the prescribed number is five).[11] While she has said that not all of the additional six seedlings would have been grown to maturity, the fact that she was well advanced with cultivating the next crop indicates that her offending was not the result of a momentary lapse of judgment but was ongoing and deliberate. That conclusion is reinforced by the nature of the lighting arrangements (albeit that some of the prescribed equipment may have ceased to work) and the use of hydroponics. The appellant is a mature person and would have been aware of the unlawfulness of her conduct and the risk she was taking.[11] Regulation 7 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014. For these reasons, I am not satisfied that good reason exists for the exercise of the discretion under s 16 of the Sentencing Act to not record a conviction. For the same reasons I am also not satisfied that good reason exists for the exercise of the discretion under s 39 to release the appellant without conviction or penalty on condition that she enter a bond.Reduction for Guilty Plea The appellant pleaded guilty at her first court appearance on 7 May 2015. She fully cooperated with the police. The respondent was correct to concede that the appellant was entitled to the full 40% reduction under s 10B of the Sentencing Act. If the fine of $1,500 imposed by the magistrate had included a 40% reduction then the starting point would have been a fine of $2,500. I consider that such a penalty would have been excessive having regard to the history and circumstances of the appellant and as the cannabis was grown for personal use using a relatively small scale hydroponic setup.[12] [12] Compare, for example, Thomas v Police [2014] SASC 34 and Terlaare v Police [2009] SASC 338.