Russell v Police No. Scciv-01-1721

RUSSELL v POLICE
[2002] SASC 27
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant pleaded guilty in the Magistrates Court sitting at Christies Beach to two drug offences. They were that he was in possession of cannabis for supply and that he knowingly produced four cannabis plants (Controlled Substances Act 1984, s 32(1)(e) and (a) respectively).
Exercising his power under s 18A of the Criminal Law (Sentencing) Act 1988, the learned sentencing magistrate convicted the appellant and imposed a single penalty, namely, a fine of $400, together with court fees and levies.
The appellant appeals against the sentence on one ground only, namely, that the learned sentencing magistrate erred in failing to exercise his discretion to refrain from recording a conviction.
The circumstances of the offence as outlined in the facts put to the learned sentencing magistrate by the prosecuting police officer are that during the afternoon of the day in question, that is, 1 April 2001, police officers attended at the appellant’s address at Morphett Vale and searched the premises pursuant to warrants issued under the Controlled Substances Act. The defendant was at home. He led the police to the rear yard where there were three cannabis plants growing in a greenhouse. As well, in a shed they found one plant growing hydroponically. In an extension of the shed they located cannabis drying on a flyscreen, dry cannabis in a garbage bag and dry cannabis in tins. When they searched the house they found more dry cannabis in a bedroom and in a linen press.
In total the police seized 172 grams of cannabis head and 439 grams of dried cannabis. The cannabis and the equipment was seized.
Subsequently the appellant readily cooperated with the police in a video recorded interview. He stated that he was the owner of the plants and that he had cultivated them for his own use, although occasionally he gave some away to friends. He had only recently cut off the heads of the plants and was drying the cannabis out.
The appellant is aged 25 years and has no previous convictions. He was represented by counsel in the court below who made submissions directed towards persuading the magistrate not to record a conviction.
I have been informed that the penalty applicable to these offences was two years imprisonment or a fine of $10,000.
In the course of his sentencing remarks the learned sentencing magistrate stated:
“I note that in the (1991) appeal of R v Mitropoulos,[1] there are others besides this, where convictions were recorded for a first offence, that the Supreme Court on appeal found favour with a conviction being recorded. I acknowledge that under s 16 [of the Criminal Law (Sentencing) Act 1988] the defendant potentially qualifies, but particularly in view of the authorities and the fact that in this jurisdiction convictions for these offences are usually imposed, if not invariably imposed, then I will proceed to enter a conviction.”
[1] R v Mitropoulos (1991) 161 LSJS 121.
The principal submission advanced by Ms Sandstrom, who was counsel in the court below and who appeared on the hearing of the appeal, was that in that passage the learned sentencing magistrate erred. Mr Grant, who appeared for the respondent, agreed. It is common ground that the case of Mitropoulos cited by the learned sentencing magistrate, lends no support for the proposition for which it was cited.
Mitropoulos concerned an appeal to this Court against a sentence imposed by a District Court judge upon the conviction of the appellant for producing cannabis. In that case there were some 27 Indian hemp plants capable of yielding of the order of 4.8 kilograms of cannabis. There is no indication in the reasons for judgment of the Court of Criminal Appeal that there was no conviction recorded, and furthermore there was no discussion of any point arising in connection with s 16 of the Criminal Law (Sentencing) Act.
Clearly Mitropoulos involved an offence of a different order from that which is now in question, and the reasons for judgment of the Court of Criminal Appeal in that case are of no assistance in determining the question of the application of s 16 to the circumstances of the offending in question here.
Furthermore, Mr Grant also conceded that it was not uncommon for an offence of this order and of this kind to be the subject of a penalty imposed without a conviction being recorded.
In all the circumstances I am satisfied that this is a case where the exercise of the discretion by the learned sentencing magistrate miscarried by reason of his erroneous understanding of the decision in Mitropoulos and by his use of the expression “invariably imposed”.
In those circumstances it is incumbent upon me to exercise the discretion afresh.
Under s 16 the court may refrain from entering a conviction if it is satisfied that the defendant is “unlikely to commit such an offence again” and if good reason exists for not recording a conviction, having regard to the character, antecedents, age or physical or mental condition of the defendant, the fact that the offence was trifling or any other extenuating circumstances.
Ms Sandstrom has put a number of submissions which she advances in support of the exercise of the discretion in her client’s favour. Ms Sandstrom pointed out that the appellant has no prior convictions, that he has not smoked or dealt with cannabis since the police raid on 16 April 2001, that he is married and intends to raise a family, and that if he was to engage in similar conduct again, he would be jeopardising his employment with Qantas Airlines.
The appellant works as a baggage handler with Qantas on both international and domestic flights. He was subject to rigorous checking of his antecedents before being taken on in that employ, and apparently he comes up for periodic review in that respect from time to time. Security has increased since September 11 last year and the recording of a conviction would, so it appears, not be regarded favourably by his employer and could possibly result in the loss of his job.
A further matter which was urged upon me was that the appellant’s parents live in the United States of America. It is possible that at some time in the future the appellant may wish to visit or even migrate to that country, in which event he would be subject to scrutiny before being issued with a visa. The existence of a conviction could well prejudice him in that respect.
The court often proceeds on the basis that if circumstances allow and unless the offending is too serious to contemplate that course, a young first offender may well be treated more leniently than otherwise might be the case.
The appellant has not only been brought into the Magistrates Court but has incurred the expense of an appeal to this Court. I am prepared to accept the assurance of his counsel that he has resolved not to offend again. In all the circumstances, I think it proper to allow him an opportunity of demonstrating the strength of his resolve in that respect.
Exercising the discretion under s 16 afresh, I am of the opinion that the appellant is unlikely to commit such an offence again. Having regard to his age, character and antecedents, together with the threat which the registration of a conviction might impose with respect to his employment, I would refrain from entering a conviction.
The appeal is allowed. The entry of a conviction in the court below is quashed and in lieu thereof I would substitute an order that, without recording a conviction, the sentence imposed by the learned sentencing magistrate otherwise apply. So that in all other respects, the fine, together with the costs as imposed by the magistrate, will apply, but without the entry of a conviction.
I order that the respondent pay the appellant’s costs which I fix in the lump sum of $150 plus the fee incurred in lodging the notice of appeal.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
[1] R v Mitropoulos (1991) 161 LSJS 121.

[2002] SASC 27

29 January 2002