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…

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 Smallwood v Police

Details

AGLC: Smallwood v Police [2007] SASC 124
Case: [2007] SASC 124
Decision Date: 3 April 2007

CaseChat Overview and Summary

In the case of Smallwood v Police, the appellant sought to appeal against a conviction for producing a controlled substance under the Controlled Substances Act 1984 (SA). The Notice of Appeal was lodged more than 11 months after the conviction was recorded, and the court had to decide whether an extension of time should be granted. The primary issue was whether the appellant had provided sufficient reasons to justify the delay in lodging the appeal and whether the appeal had any merit. The court also considered the appropriate penalty for the offence in light of the appellant's previous convictions.

The court examined the factors relevant to deciding whether a conviction should be recorded, including the likelihood of reoffending and any mitigating circumstances. It noted that the imposition of a conviction and fine was generally appropriate for a second offence involving the production of cannabis. The court further considered the appellant's previous convictions, including a conviction for driving with excess blood alcohol. Given these circumstances, the court found that the appellant had not provided sufficient reasons to warrant an extension of time to lodge the appeal. Additionally, the court concluded that the appeal lacked merit, as it was unlikely that the outcome would have been different even if the additional matters had been available to the magistrate at the time of the conviction.

The court refused to extend the time for the institution of the appeal and ordered that the Notice of Appeal be struck out, effectively dismissing the appeal. The court held that the reasons advanced by the appellant did not amount to a sufficient reason to extend the time to appeal and that the appeal did not satisfy the requirements for merit. The decision underscored the importance of timely appeals and the limited circumstances under which extensions of time may be granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LAYTON J

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.

Ratio Decidendi

Legal Principle Established

Established by: LAYTON J

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