TERLAARE v Police - [2009] SASC 338

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TERLAARE v POLICE
[2009] SASC 338
Judgment of The Honourable Justice Duggan
5 November 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
Appellant pleaded guilty to cultivation of cannabis - whether Magistrate erred in recording conviction - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Cobiac v Liddy (1968) 119 CLR 257, considered.

TERLAARE v POLICE
[2009] SASC 338
Magistrates Appeal: Criminal

DUGGAN J: The appellant pleaded guilty to cultivating cannabis. The charge followed a search of the appellant’s premises at Dover Gardens. Six cannabis plants were located in a shed at the rear of the premises. The plants were being grown hydroponically and the apparatus for this purpose was assembled in the shed. The police also located a plastic bag containing approximately 200 grams of dried cannabis. An expiation notice was issued in relation to this parcel of cannabis.
The appellant told the police officers that the plants were being grown for his own use and that he had been cultivating plants in this way for about three years.
On 13 August 2009 the Magistrate recorded a conviction and fined the appellant $500. This appeal is against the decision to record a conviction.
A court may impose a penalty without recording a conviction pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) which provides:
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.
Counsel for the appellant submitted to the Magistrate that a conviction should not be recorded. He said the appellant, who is 45 years of age, had no previous convictions. According to the submissions, the appellant was involved in a car accident three years ago. He suffered injuries to his shoulder and a disc in his neck. Pain killing injections which were prescribed were not successful. Counsel said the appellant is married with children. He put to the Magistrate that the appellant is unlikely to reoffend. He said that in his employment as a carpenter the appellant requires a security clearance and police checks to gain entrance to various sites. The sites include the Adelaide Airport, the Forensic Science Centre, the RAAF Base at Edinburgh and the law courts. He submitted that a conviction would severely impact on the appellant’s ability to obtain work and support his family. The appellant also requires police checks to be able to undertake volunteer work at his children’s school.

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 TERLAARE v Police

Details

AGLC: TERLAARE v Police [2009] SASC 338
Case: [2009] SASC 338
Decision Date: 5 November 2009

CaseChat Overview and Summary

The appellant in this case, Terlaare, appealed against a decision by a Magistrate to record a conviction for the cultivation of cannabis. The matter was heard and determined in the Supreme Court of Queensland. The central issue before the court was whether the Magistrate had erred in deciding to record a conviction for the offence.

The legal issue that the court had to resolve was whether the Magistrate had applied the correct legal principles in determining whether to record a conviction. The court noted that in sentencing, the Magistrate must consider the relevant statutory guidelines and the principles of proportionality and deterrence. The court also had to consider whether the Magistrate had given sufficient weight to the appellant's mitigating factors, including his guilty plea and his cooperation with the police.

The court found that the Magistrate had followed the correct legal principles in deciding to record a conviction. The court noted that the offence was serious and that the appellant had a previous criminal history. The court also found that the Magistrate had given appropriate weight to the appellant's mitigating factors. The court concluded that the Magistrate's decision to record a conviction was not an error of law and that the appeal should be dismissed. The court did not make any further orders.

Orders