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.
Counsel submitted that the circumstances of the offending placed it at the lower end of the scale of seriousness and that the appellant’s use of cannabis resulted from an attempt to reduce his pain level following the car accident. He told the Magistrate that the appellant grew up in Amsterdam where there were more liberal laws regarding the production and consumption of cannabis. This is said to have had an effect on the appellant’s view as to the seriousness of producing cannabis. It was submitted that the effect of the conviction would far outweigh the seriousness of the offending.
When sentencing the appellant the Magistrate said:
You have pleaded guilty to a charge of cultivating cannabis. You were cultivating six plants hydroponically and when it was detected, you were fount to be in possession of dried cannabis from an earlier crop.
The main thrust of your lawyer’s submission is that I should deal with this matter without conviction. I have a lot of difficulty in seeing this is a sort of case that sort of outcome should apply to.
You went about it quite deliberately and intentionally, it was not the first time you had done it and to suggest that you grew up more than 20 years ago in Amsterdam and that excuses you from growing cannabis, I find hard to accept.
You have been living here for a long time and you should well know the seriousness this offence is treated with in this country. Hydroponic cannabis growing is something that has been cracked down on in the last few years for very good reason.
There are vague allusions as to the consequences that may possibly follow from a conviction. There is no evidence that has been put to me as to the exact effect and quite frankly, it has been my view for many years that it is not the court’s role to hide the seriousness of offending from potential employers by dealing with matters without conviction unless, of course, the other circumstances surrounding the matter should lead to that conclusion.
What I am saying is, not that it is not relevant but if it is the only factor put forward it wouldn’t be the factor that the courts take into account.
I am not satisfied this is a matter that S.16 should apply to. It is a serious offence and one entered into by you quite intentionally and knowing full well and understanding that what you were doing is against the law.
Therefore I record a conviction and fine in the sum of $500.00 with court fees, victim of crime levy and prosecution costs. Drugs and equipment seized are to be forfeited to the Crown.
In the usual case a conviction will be recorded if the defendant is fined or sentenced to community service or both. However if, in the opinion of the Court, the defendant is unlikely to commit such an offence again and the Court is satisfied, having regard to the criteria prescribed, that good reason exists for not recording a conviction, the penalty may be imposed without recording a conviction.
In Cobiac v Liddy[1] the Court was required to consider the operation of s 4(1) of the Offenders Probation Act 1913-1963 (SA). The section provided that if a court of summary jurisdiction concluded that a charge was proved but was of the opinion:[2]
[1] (1968) 119 CLR 257.
[2] (1968) 119 CLR 257 at 264.
…that, having regard to--
(a)     the character, antecedents, age, health or mental condition of the person charged, or
(b)     the trivial nature of the offence, or
(c)     the extenuating circumstances under which the offence was committed,
it is expedient to exercise any of the powers conferred by this subsection, the court may--
I.     without convicting the person charged dismiss the information or complaint.
Windeyer J made the following comments on the exercise of the discretion under that legislation:[3]
The question is not whether any of us in this Court, or any of their Honours in the Supreme Court, would himself have taken the course that the magistrate took. The question is not what we would do, but what could he lawfully do. The discretion was his. He could exercise it as he thought expedient, provided that in the circumstances it was open to him to exercise it at all. The statutory conditions for its exercise were that he should be "of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged ... it is expedient to exercise" the power. That means, I think, that the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers "having regard to" the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.
[3] (1968) 119 CLR 257 at 275.
In my view this reasoning applies to the exercise of the discretion in the somewhat similar legislation under consideration in the present case. Upon being satisfied that a defendant is unlikely to commit an offence of the nature he is presently charged with, regard is to be had to the matters set out in s 16(b) of the Act and a decision is to be made whether it would be appropriate to extend the leniency provided by the section.
Counsel for the appellant argued that the Magistrate failed to consider all the material relevant to the exercise of the discretion. There is a further complaint that the Magistrate failed to provide adequate reasons for his decision.
It was not argued that the offence was trifling. However, according to the submission made to the Magistrate, the offending was at the lower end of the scale of seriousness and, because the appellant came from Amsterdam, the growing of cannabis was even less serious when viewed through his eyes.
The Magistrate addressed these arguments. In his view the offence was serious and the appellant embarked upon it intentionally and in the knowledge that what he was doing was against the law. The Magistrate rejected the suggestion that the appellant’s experience more than 20 years ago in Amsterdam reduced the seriousness of the offending in any respect.
The issue relating to the appellant’s employment was put on appeal in a somewhat different way from the submissions made to the Magistrate. The Magistrate was told that the appellant needed a security clearance in order to gain entrance to sites such as the Airport, the Forensic Centre, the RAAF base and the law courts. On appeal counsel for the appellant said that when applying for certain contracts a disclosure of the fact that he had this conviction could mean that he would lose the contract to someone else. As the Magistrate pointed out, there was no evidence before him as to precisely how the disclosure of the marijuana conviction could affect the appellant’s employment. Furthermore, it is clear that the Magistrate did consider the argument and rejected it for the reasons which he gave. In my view it cannot be argued that his reasoning in this respect was flawed.
The existence of a conviction has the potential to curtail or prevent the appellant’s activities as a volunteer worker at his children’s school. However the Magistrate’s reasoning in relation to paid employment is equally applicable to volunteer employment. There was no evidence to support this submission and the Magistrate considered that the interest of employers in being informed about a person’s convictions outweighed the appellant’s interest. It is open to the Court to take that view in a particular case.
The claim that the appellant became involved with marijuana as a form of pain relief after an accident was not specifically referred to by the Magistrate. However, in the light of the Magistrate’s views on the other more relevant submissions it is not open to the appellant to argue that this consideration should have led to a different result in the exercise of the discretion.
Another matter not mentioned by the Magistrate was whether the appellant was likely to reoffend. This is a condition precedent to the exercise of the discretion in a defendant’s favour. But in addition to proof of that issue, the Court has to be satisfied that the exercise of the discretion in this way is justified by reference to the criteria in s 16(b) of the Act. Clearly the Magistrate was not so satisfied.
The sentencing of the appellant followed upon the submissions by counsel. It can hardly be said that the Magistrate overlooked the emphasis which counsel had placed on the absence of any previous convictions and the other submissions which are set out above. Although the ex tempore remarks of the Magistrate were short, they were adequate in explaining why the Magistrate refused to accept the submission that it was appropriate not to record a conviction. Nor is there any basis for concluding that the Magistrate erred in his approach to the exercise of the discretion.
The appeal is dismissed.