Schmidt v Police - [2005] SASC 482

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SCHMIDT v POLICE
Judgment of The Honourable Chief Justice Doyle (ex tempore)
15 December 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS - SOUTH AUSTRALIA
The appellant pleaded guilty in the Magistrates Court to a charge of producing cannabis contrary to the Controlled Substances Act 1984 s 32(1)(a) - a conviction was recorded and a fine was imposed - the appellant appeals the recording of the conviction - on appeal - sufficiency of Magistrate's reasons - consideration of the power to refrain from recording a conviction under Criminal Law (Sentencing) Act 1988 s 16 - whether failure of the magistrate to inform appellant, as an unrepresented litigant, of right to apply under s 16 was an error - appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) s 16; Controlled Substances Act 1984 (SA) s 32(1)(a), s 32(5)B(a)(iii), s 32(6), referred to.
Simms v Police (2000) 30 MVR 524; Russell v Police [2002] SASC 27; Warren v Police [2004] SASC 334, considered.

SCHMIDT v POLICE
[2005] SASC 482
Magistrates Appeal: Criminal

DOYLE CJ: This is an appeal against a sentence imposed by the Magistrates Court.
Mr Schmidt pleaded guilty to a charge of producing cannabis, a prohibited substance contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA), which I will refer as “the Act”.
The allegation was that he had produced or grown three plants. As the number of plants did not exceed ten, the maximum penalty was a fine of $2000 or two years imprisonment or both: s 32(5)B(a)(iii) of the Act.
If the court was satisfied that the plants were produced for Mr Schmidt’s own smoking or consumption, the maximum penalty was a fine not exceeding $500: s 32(6) of the Act.
The Magistrate recorded a conviction and fined Mr Schmidt $250 with court costs and fees. Mr Schmidt appeals against the decision complaining only of the decision to record a conviction.
Mr Schmidt was not represented before the Magistrate. He pleaded guilty when the matter first came before the court. He told the Magistrate he wanted to have the matter finalised. Mr Schmidt says in his affidavit that he was not warned about the significance of the recording of the conviction, nor was he told that he could ask the Magistrate to exercise the power conferred by s16 of the Criminal Law (Sentencing) Act 1988 (SA) and refrain from recording a conviction.
In his affidavit the prosecutor says that he has no clear recollection of events. In the circumstances, I am prepared to accept that the Magistrate did not inform Mr Schmidt about the possibility of an application under s16.
The first complaint raised on appeal is that the Magistrate’s reasons are inadequate. This is said to be an error affecting the sentence.
The Magistrate’s reasons are very brief running to no more than about seven lines. But the matter was a straightforward one, at least as presented to the Magistrate. The Magistrate gave no reasons for not exercising the power under s16 to refrain from recording a conviction. That is not surprising because he was not asked to do that. That is not of itself a complete answer, but in a straightforward case like this, the failure to explain why the Magistrate did not refrain from recording a conviction is not of itself an error that provides a basis for me to intervene.
In other words, I consider that, as a matter of law, the Magistrate’s reasons are sufficient. It was open to him to take the view on the material before him that there was no basis for refraining from recording a conviction.
It is also complained on appeal that the Magistrate did not ‘wholly afford procedural fairness’ to Mr Schmidt. This is a complaint about the Magistrate’s failure to inform Mr Schmidt of the possibility of an application under s16.
In a case in which it is apparent that an application under s16 might succeed, the Magistrate should inform an unrepresented defendant of that possibility. To do so is part of the process of ensuring that the defendant is aware of the defendant’s rights.
In the present case I consider in particular on the further material now before me that it was arguable that a successful application might be made under s16. This further material is material which might well have come before the Magistrate had he raised the possibility of an application with Mr Schmidt.
In these circumstances, the failure to raise the matter with Mr Schmidt was an error. Accordingly, it is appropriate for me to consider that aspect of the matter afresh.
It is not necessary to set out the terms of s16. I have considered earlier decisions of judges of this Court dealing with the section and I refer to Simms v Police [2000] SASC 102; (2000) 30 MVR 524; Russell v Police [2002] SASC 27 and Warren v Police [2004] SASC 334.
Section 16 reflects an assumption that ordinarily a conviction will be recorded on a finding of guilt. On the other hand, it gives the court a fairly broad power to refrain from doing so. The power arises only when the court is of opinion that the criteria in subpara (a) and subpara (b) are met. In that event, if the court considers that ‘good reason exists for not recording a conviction’, the court may refrain from doing so. In other words, the specified criteria must first be met, and then it is a question of whether, in the light of those criteria and all the relevant circumstances, there is good reason for not recording a conviction. The concept of a good reason not to record a conviction is a broad one, although there are, of course, limits to the factors that fall to be considered.
The first issue for me is whether I am satisfied that Mr Schmidt is unlikely to commit an offence of the kind in question again: s 16(a). Until the appeal came on for hearing there was no evidence at all before me on that point. However, at the commencement of the hearing, Mr Almeida, counsel for Mr Schmidt filed an affidavit from Mr Schmidt in which he says that as a result of his experience in this matter, and as a result of being brought to court, he has changed his approach in a number of ways and in particular has given up the use of cannabis and does not intend to consume it again or to have anything to do with cannabis.
In all the circumstances, I am prepared to act on that affidavit and therefore to find that Mr Schmidt is unlikely to commit such an offence again.
The next issue is whether the criteria in subpara (b) are met. I accept that Mr Schmidt’s previous good character, that is the fact that he has no previous offences, and his relative youth, 23 years, are relevant factors for those purposes. I am not prepared to find that the offence was trifling. It was a routine offence of its kind and not a particularly serious offence, but nevertheless it cannot be regarded as trifling, nor have any extenuating circumstances been identified.
In the course of submissions, Mr Almeida referred to the fact that a conviction might prejudice the renewal of Mr Schmidt’s firearms licence, the fact that it might prevent him travelling overseas and might prejudice future job prospects. In my opinion, these are not extenuating circumstances.
Ordinarily, extenuating circumstances will be matters relevant to the offence itself. In some situations they will include matters personal to the defendant, but in my opinion consequences of the penalty to be imposed would not ordinarily be described as extenuating circumstances.
Nevertheless, I am prepared to find that in Mr Schmidt’s case there are aspects of his character and age that meet the requirements of subpara (b).
As the criteria for the exercise of the discretion under s16 are met, I must consider whether good reason exists for not recording a conviction. The matters to which I have already referred are relevant. They are now relevant not so much as qualifying criteria, because the qualifications for the exercise of the discretion have been met, but as matters that are relevant in considering whether there is good reason for not recording a conviction.
I should also record that other relevant matters under this head are Mr Schmidt’s plea of guilty and the fact that he cooperated with the police when they came to his home and found the marijuana plants. Standing alone those matters are not sufficient to establish a good reason for not recording a conviction. This is because it is also relevant that Mr Schmidt is a mature person, that he must have realised the risks he ran in growing the marijuana and that there are, in fact, no extenuating circumstances surrounding the commission of the offence itself.
I appreciate that there have been cases under the Act in which the power conferred by s 16 has been exercised. My point is simply that in the present case the factors so far referred to do not themselves establish a good reason to justify the exercise of the power, but I have to consider the other matters relied on by Mr Almeida.
I accept that there is a risk that a renewal of his firearms licence will be refused. Mr Schmidt is a recreational shooter and has held a licence for a number of years. This is not entitled to much weight. The loss of the licence might be an appropriate response to his involvement with marijuana, whether a conviction is recorded or not.
I accept that there is a risk that the recording of a conviction will impede Mr Schmidt in seeking employment. Whether that will happen cannot be told, but there is a risk, and that is a significant matter for a young man of his age and a person who until now has had no offences recorded against him.
I also accept that the recording of a conviction might mean that Mr Schmidt are will not be able to travel to certain other countries. Whether he will ever wish to do so is not known. This is entitled to some weight, but is not of great significance.
I make the point that Mr Almeida has done no more than point to possibilities. This is not a case where he has demonstrated an actual or substantial risk of a significant adverse consequence.
Another relevant matter to consider is that offences of this kind, producing relatively small quantities of marijuana, are prevalent. Although some parts of the community apparently regard the production of small quantities of marijuana as acceptable, it remains contrary to law. A court must be careful not to undermine the law by too readily treating breaches of the law leniently. This consideration is not a bar to the exercise of the power, but is a factor to be considered.
It now remains for me to weigh all these matters up and take them all into account. Weighing up all these matters I consider that it is appropriate to extend leniency to Mr Schmidt and to refrain from recording a conviction.
I am influenced in particular by the combined effect of his good character, the fact that he has no prior offences, by his plea of guilty and in particular by his statement that he has decided to stop using marijuana and to have nothing to do with marijuana again.
I am also influenced by the fact that the offence is a less serious one of its kind. Therefore, although it is not by any means a strong case, I consider that there are grounds on which I can exercise lenience, and I propose to do so.
Accordingly, I order:
1.That the appeal be allowed.
2.The sentence imposed by the Magistrates Court be set aside.
3.That the following sentence be substituted that is, without recording a conviction, Mr Schmidt be fined $250 and ordered to pay court costs of $111 victim of crime levy of $35 and prosecution costs of $20 a total of $460.
4.I order that the material seized by the police and the equipment for the smoking of marijuana seized by the police be forfeited to the Crown.
5.I order that there be no order as to the costs of the appeal.