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 re-sentencing. The respondent submitted that a fine of $1,500 in respect of both counts was appropriate after allowing the 40% discount.
[1] Mead v Police (2014) 119 SASR 223 at [40].
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
The appellant is aged 44. She is a single parent of two children, aged 18 and 21. Both children live with the appellant, attend university and are financially dependent on her. She works in a management role at a hotel and has been employed in the hospitality industry for 15 years. She also works part time as an information officer at a national park. She has qualifications in hospitality and training and intends to become a teacher of hospitality after undertaking further TAFE study.
On appeal the Court was informed that the appellant had first used cannabis 30 years ago but she had not been a regular user for all of the intervening years. Her use became more frequent some 10 years ago when she separated from her domestic partner. Their 12 year relationship was described by her counsel as volatile. She had been subjected to physical abuse. The separation was traumatic and she had received ongoing threats from her ex-partner. She turned to cannabis as a coping mechanism to help her deal with the separation and the events that followed.
The appellant’s counsel informed the Court that the six seedlings were being grown to replace the three mature plants after they were harvested. More than three replacement seedlings were being cultivated as the appellant was unsure how many would survive. Should more than six seedlings have survived, she would have chosen the three healthiest to grow to maturity. Her counsel indicated that the cannabis was for her personal use.
Much of the equipment for growing cannabis was said to be old and not operational. While I accept that as correct, the police photographs also indicate that some effort had been made to install specialised lighting equipment. For that reason, and in view of the use of hydroponics, I agree with the observation by the magistrate that the setup exhibited some degree of sophistication.
Discretion not to record a conviction
Section 16 of the Sentencing Act provides that:
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.
Bleby J observed in Sims v Police:[3]
...the assumption behind s 16 of the Sentencing Act is that, in most cases, a conviction will be recorded. Section 16 is by way of exception to the normal rule. In order to exercise the power conferred by s 16, the court would have to identify what it was that provided good reason for not recording the conviction.
[3] [2000] SASC 102 at [7].
In R v Yousef, Sulan and Layton JJ made important observations about the public policy relevant to the recording of convictions:[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.
[4] [2005] SASC 203 at [60]-[62].
These observations were cited with approval by Sulan J in R v Lambert,[5] with whom Duggan J and Kourakis J (as he then was) agreed. Sulan J went on to state that:[6]
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, 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.
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.
[5] [2009] SASC 307 at [19].
[6] Ibid at [20]-[22].
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.
While it is not mandatory for a sentencing court to expressly identify the specific reduction given in respect of a guilty plea, it is desirable for the court to do so.[13] Where the reasons make no reference at all to s 10B, or the principle it requires to be applied, an error may be inferred on the basis that the magistrate failed to have regard to a relevant consideration.[14] I therefore find that the sentence must be quashed and the appellant re-sentenced. That is the course urged upon the Court by counsel for both the appellant and respondent.
[13] Mead v Police (2014) 119 SASR 223, Sulan J at [30].
[14] Ibid at [30] and [40].
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.