Smallwood v Police - [2007] SASC 124

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SMALLWOOD v POLICE
[2007] SASC 124
Judgment of The Honourable Justice Layton (ex tempore)
3 April 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING
Appeal against the decision of a magistrate to record a conviction for one count of producing a controlled substance, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA) - Notice of Appeal was lodged more than 11 months out of time - whether an extension of time should be granted - consideration of the merits of the proposed appeal - Held: the appellant failed to demonstrate sufficient reasons to satisfy the requirements for an extension of time - no merit in the proposed appeal - the imposition of a conviction and fine was an appropriate penalty for a second offence in the circumstances - extension of time refused - Notice of Appeal struck out.
Controlled Substances Act 1984 (SA) s 32(1)(a); Supreme Court Rules 1987 r 96C.02; Supreme Court Civil Rules 2006 6SCR 200(1)(a), referred to.
Police v Sims [2000] SASC 102; Police v Warren [2000] SASC 285, considered.

SMALLWOOD v POLICE
[2007] SASC 124
Magistrates Appeal: Criminal
LAYTON J.
Introduction

This is an appeal against sentence. On 20 February 2006 the appellant was charged with knowingly producing a controlled substance, namely two cannabis plants contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA).
On 14 March 2006 the appellant, who was unrepresented, pleaded guilty in the Holden Hill Magistrates Court. The appellant had a prior finding of guilt with respect to possessing cannabis and possessing equipment to administer cannabis on 7 November 1996. For that offending, no conviction was recorded, and the appellant was fined $60 plus court costs and a levy. In addition, a forfeiture order was made seizing the substances and equipment.
This prior offending was admitted by the appellant when he appeared before the Magistrate. The Magistrate convicted the appellant and fined him $200 plus court fees and a levy. The Magistrate also ordered the forfeiture of the cannabis plants and drug equipment seized by the Crown.
The appellant seeks to appeal only in relation to the recording of the conviction and in doing so, needs to apply for an extension of time.
Extension of time
The Notice of Appeal was received on 17 February 2007 more than 11 months after the Magistrate’s order. The relevant Supreme Court Rules at the time required that an appeal be instituted within 14 days of the judgment appealed against.[1] That was certainly not done. The appellant’s failure to appeal within time means that he has lost his right of appeal, unless he is able to obtain an extension of time.
[1] Supreme Court Rules 1987 (SA) Rule 96C.02.
The power of the Court to grant an extension of time is governed by the Supreme Court Civil Rules 2006, which came into operation prior to the taking out of the application for appeal.[2] The power to extend time pursuant to 6SCR200(1)(a) is discretionary. There are a number of matters which are required to be fulfilled for the purposes of extending time. They include that there must be material advanced upon which the Court can exercise its discretion. It is noted that the longer the delay, the more exceptional or substantial the explanation which is required. The Court is not obliged to consider the merits in detail.[3]
[2] Supreme Court Civil Rules 2006 (SA) 6SCR 8.
[3] Police v Warren [2000] SASC 285 at [16]-[17].
In this case, the only ground which is put forward by Mr Smallwood with regard to an extension of time, is that he did not know that a conviction was recorded. At the time, he thought that he was just fined as he had been on the previous occasion. He says that he only found out that a conviction was recorded about two months ago when he applied for a job in the mining industry, at which time they (the potential employers) undertook a police check.
Mr Smallwood put forward a number of concerns about having a conviction recorded, which included the potential difficulty in him obtaining work in the mining industry, and the difficulty that he may have in travelling to certain countries. I note however that those are matters that have occurred subsequent to the time when the matter was heard before the Magistrate.
Recording a Conviction
Section 16 of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Sentencing Act’) provides a court with a discretion to not record a conviction:
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.
For a conviction not to be recorded, there are a number of factors which are required to be satisfied. Firstly, that a defendant is unlikely to commit such an offence again, and secondly whether good reason exists for not recording a conviction having regard to character, antecedents, age, physical or mental condition, whether the offence was trifling or any other circumstances. In Sims v Police[4] Bleby J noted that the assumption behind s 16 of the Sentencing Act is that in most cases, a conviction will be recorded. Section 16 creates an exception to the normal rule and in order to exercise the power, the Court would need to identify what the good reason was for not recording the conviction.
[4] [2000] SASC 102.
Conclusion
The maximum penalty for the offence for which the appellant was sentenced, is a fine not exceeding $2,000 or imprisonment for two years, or both.[5] In this case this was a second offence involving the use or production of cannabis, as the appellant had been previously given the benefit of having no conviction recorded.
[5] Controlled Substances Act 1984 (SA) s 32(1)(a).
In my view, having regard to all of the circumstances, even if the matters that Mr Smallwood now puts forward to this Court had been available to the Magistrate, it would be highly unlikely that there would have been a different outcome. I have also had regard to the fact that Mr Smallwood has previous convictions. A number of them are not particularly relevant, but one that is relevant is a conviction for driving with excess blood alcohol nearly 15 years ago.
In all of those circumstances, the reasons which are advanced by Mr Smallwood as to why there should be no conviction recorded, do not in my view amount to a sufficient reason to extend time to appeal. Further, having regard to the merits of the proposed appeal, I do not think he would be able to satisfy those requirements. Whilst I appreciate the difficult position which the appellant is in, being unrepresented, and also having the difficulty of not understanding at the time when he appeared before the Magistrate the consequences of what might occur as a result of the conviction, nonetheless I consider that there is no basis upon which the proposed appeal should be allowed.
For those reasons, I refuse to extend time for the institution of the appeal and I order that the Notice of Appeal be struck out. That has the same effect as an order dismissing the appeal.