SPINKS v POLICE

[2008] SASC 148

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

SPINKS v POLICE

[2008] SASC 148

Judgment of The Honourable Justice David (ex tempore)

4 June 2008

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - GENERALLY

Appellant pleaded guilty to one count of possessing cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) and one count of producing cannabis contrary to s 32(1)(a) of the Controlled Substances Act - magistrate set head sentence of 3 years, reduced that sentence by 1 year and set a non-parole period of 15 months - appellant appealed against the sentence imposed on the basis that the magistrate erred in setting a sentence that is manifestly excessive and in not exercising the discretion to suspend that sentence - maximum penalty for each offence is imprisonment for 2 years or a fine of $2,000 or both - whether health of appellant can be adequately managed - held, no evidence that appellant's health cannot be adequately managed, or would be adversely affected by a term of imprisonment - held, previous offending precludes good reason to suspend - whether magistrate should have quantified amount of cannabis - whether magistrate should have stated how she set the head sentence and non-parole periods - cumulative or concurrent - held, lack of finding as to quantity and reasons as to how sentence set caused sentencing discretion to miscarry - appeal allowed - appellant re-sentenced.

Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Controlled Substances Act 1984 (SA) s 32(1)(e), s 32(1)(a), s 32 (5a)(a), s 32(5a)(b), s 32(5)B(a)(iii), referred to.
R v Godwin (2001) SASR 195, applied.

SPINKS v POLICE
[2008] SASC 148

Magistrates Appeal

DAVID J:          (ex tempore)

Introduction

1. This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) against penalty. The appellant pleaded guilty to one count of possessing cannabis for the purposes of selling it to another person contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) (“the CSA”). The amount of cannabis which he is alleged to have possessed was 1.327 kilograms. As this is an amount which is less than one fifth of the prescribed amount,[1] the maximum penalty for the offence is two years imprisonment or a fine of $2,000, or both.[2] He also pleaded guilty to a second count of producing cannabis contrary to s 32(1)(a) of the CSA. He admits to having produced 18 plants. As this is an amount which is less than one fifth of the prescribed amount,[3] the maximum penalty for this is also two years imprisonment or a fine of $2,000, or both.[4] The appellant was charged pursuant to the offence and penalty scheme in operation under the CSA on 30 July 2007 when he committed the subject offences.

   [1]    Controlled Substances Act 1984 (SA) s 32(5a)(b).

   [2]    Controlled Substances Act 1984 (SA) s 32(5)B(a)(iii).

   [3]    Controlled Substances Act 1984 (SA) s 32(5a)(a).

   [4]    Controlled Substances Act 1984 (SA) s 32(5)B(a)(iii).

2. The magistrate imposed a term of imprisonment of two years with a non-parole period of 15 months. In setting that sentence, it is unclear whether she utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) or cumulated the sentences set for each offence. This is not unimportant, because the magistrate started with a head sentence of three years then reduced it by 12 months because of the appellant’s early pleas of guilty.

   Appeal

3. The appellant now appeals against both the severity of that sentence and the refusal of the magistrate to suspend it.

4. It was submitted, both to the magistrate and on appeal, that a factor the magistrate should have taken into account in considering whether to exercise her discretion to suspend, was the health of the appellant.  It is clear from material presented to both the magistrate, and to myself on appeal, that he is in parlous health.  He is aged 61 and suffers from a multitude of health problems including diabetes, pulmonary hypertension, retinopathy, coronary artery disease and liver dysfunction.  He is at present receiving treatment for all of these conditions.  It is argued before me that despite an extensive history of offending against the drug laws interstate, the magistrate should have suspended the term of imprisonment imposed on account of the appellant’s health.  I disagree with that submission.  There appears to be no material either before the magistrate or myself suggesting that the appellant’s health makes incarceration more burdensome upon him or that his health cannot be adequately managed in custody.[5]  His previous offending also precludes there being good reason to suspend the sentence.

   [5]    R v Godwin (2001) 80 SASR 195.

5. In relation to the severity of the sentence, I have some concerns. In her reasons, the magistrate does not quantify the amount of cannabis in relation to the first count. It was originally put to me that the amount of cannabis which related to the first count was 3.8 kilograms. However, on further inquiry before me, it was established that if that were the amount upon which the sentence was based, it would have taken the case into a higher penalty bracket. I am now told that the amount was 1.327 kilograms. The magistrate made no finding as to how much cannabis was involved. The magistrate also did not state in her reasons whether the head sentence which she notionally set before taking into account the pleas of guilty was cumulative of both counts, or pursuant to s 18A of the Sentencing Act. In my view, because of the absence of that finding, and the magistrate’s reasons as to how she set the sentence, the sentencing process has miscarried. I deal with the matter by way of re-sentence.

   Re-sentencing

6. The appellant is now 61 years of age.  He is in very poor health, as explained above.  Even though that can be managed whilst he is in prison, it is nevertheless, a factor that I take into account.  He has had a number of previous convictions interstate and has been in prison, the last time being in 1995. 

7. Bearing in mind all of these factors and also allowing for the fact that there is a certain commonality between the two charges, I will set a head sentence of 2 years imprisonment and I will reduce that sentence to 15 months because of the appellant’s early pleas of guilty.  In setting a non-parole period I bear in mind his age and his state of health.  I set a non-parole period of 8 months.  Both the head sentence and the non-parole period are backdated until the date the appellant commenced serving the original sentence, namely 13 March 2008.

   Conclusion

8. I allow the appeal.  The appellant is sentenced to 15 months imprisonment with a non-parole period of 8 months both backdated to 13 March 2008.