Thomas v Police - [2014] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THOMAS v POLICE
[2014] SASC 34
Judgment of The Honourable Justice Blue
13 March 2014
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence imposed by a Magistrate.
The defendant pleaded guilty to cultivating four cannabis plants and possessing prescribed equipment. The Magistrate exercised his discretion not to record a conviction in respect of count 1 but recorded a conviction in respect of count 2.
The defendant appeals against the decision of the Magistrate declining an invitation not to record a conviction under section 16 of the Criminal Law (Sentencing) Act 1988 (SA). The defendant contends that the Magistrate erred in observing during submissions that, if he were to utilise section 16, people charged with murder and armed robbery could ask for no conviction to be recorded. The defendant also contends that the exercise of the discretion to record a conviction was manifestly unreasonable.
Held (dismissing the appeal):
1. The Magistrate’s allusion arguendo to offences of murder or armed robbery was merely illustrating in graphic fashion the principle that the seriousness of an offence is a relevant factor in determining whether it is appropriate not to record a conviction under section 16. That observation does not evidence any error of approach by the Magistrate (at [17]-[20]).
2. The decision of the Magistrate to record a conviction was not unreasonable given the deliberate and sustained nature and relative degree of seriousness of the offence weighed against the defendant’s age, good character and other personal mitigating circumstances (at [22]).
3. Appeal dismissed (at [24]).
Controlled Substances Act 1984 (SA) ss 33K(2), 33LA(a); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) r 7; Criminal Law Conslidation Act 1935 (SA) ss 11, 137, referred to.
House v The King (1936) 55 CLR 499; Shrubsole v Rodriguez (1978) 18 SASR 233, considered.

THOMAS v POLICE
[2014] SASC 34
Magistrates Appeal: Criminal
BLUE J:

This is an appeal against sentence imposed by a Magistrate.
The appellant/defendant Annette Thomas pleaded guilty to cultivating not more than the prescribed number of cannabis plants[1] and possession of prescribed equipment[2] on 19 October 2012.
[1] Controlled Substances Act 1984 (SA) s 33K(2).
[2] Controlled Substances Act 1984 (SA) s 33LA(a).
The prescribed number of cannabis plants is five.[3] The maximum penalty for count 1 was imprisonment for six months and/or a fine of $1,000. The maximum penalty for count 2 was imprisonment for two years and/or a fine of $10,000.
[3] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 (SA) regulation 7.
The Magistrate was invited to proceed without recording a conviction under section 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”). The Magistrate exercised his discretion not to record a conviction on count 1 but recorded a conviction on count 2. The Magistrate imposed a fine of $300 on count 1 and a fine of $920 on count 2.
The defendant appeals against the decision of the Magistrate to record a conviction on count 2. She essentially relies upon two grounds:
1.the Magistrate erred in law and took into account an irrelevant consideration when he observed during submissions on penalty that it was a sophisticated set up and that, if he were to utilise section 16, people charged with murder and armed robbery could ask for no conviction to be recorded; and
2.the exercise of the discretion to record a conviction was manifestly unreasonable.
Background
On 19 October 2012, the police attended at the house occupied by the defendant as a result of Power Networks SA having become aware that the electricity meter at the premises was being bypassed. Four cannabis plants were growing in a purpose built room in the shed of the house occupied by the defendant. The cannabis plants were growing under four high intensity globes within light shades connected to transformers. They were watered by an irrigation system and odours were removed by a carbon filter. There were eight transformers in the room in total. The police located a further five light shades and two transformers not in use in another area. Subsequently, the police interviewed the defendant. She admitted that the plants were hers and said that they were for her personal use only.
The defendant was 56 years of age at the time of sentencing and had no prior convictions. A character reference by a former work colleague and personal friend was tendered before the Magistrate. The defendant was sentenced on the basis that the cannabis was grown for her personal use. She was sentenced on the basis that she had been the victim of an assault by her former partner in 2011, following which she was introduced to and began to use regularly increasing amounts of cannabis. The defendant had been employed for 18 years at a hotel. A friend had provided the prescribed equipment to her without payment. The defendant had since removed herself from those using cannabis.
The Magistrate’s reasons
The Magistrate referred to the circumstances of the offending and to the personal circumstances of the defendant as summarised above. The Magistrate was satisfied that it was unlikely that the defendant would commit such offences again.
The Magistrate referred to the maximum penalties for the two offences and observed that the maximum penalty in respect of count 2 was significantly higher than in respect of count 1. The Magistrate referred to the degree of sophistication of the cannabis growing set up and what he regarded as a deliberate and sophisticated attempt to break the law. He contrasted the circumstances of the offending with a person who threw a couple of seeds into a pot or a person who grew a single plant in a room heated by a single lamp.
The Magistrate concluded that ultimately he was not able to exercise the discretion under section 16 of the Act so as not to record a conviction on count 2.
The contentions on appeal
During the course of submissions on behalf of the defendant on penalty, the Magistrate made the following observation:
I am only considering fines for each offence, but it’s a sophisticated set up. If I were to utilise section 16, then people charged with murder and armed robbery could ask for no conviction.[4]
The solicitor appearing for the defendant submitted in response that it was a precondition for the exercise of the discretion not to record a conviction under section 16 that the Court was proposing to impose a fine and/or sentence of community service; whereas the usual penalty for murder or armed robbery would be an immediate custodial term.
[4] Affidavit of Francesco Barbaro sworn 6 January 2014 at [5.1].
The defendant contends that the Magistrate implied and erred in implying that a court could exercise discretion not to record a conviction under section 16 on a charge of murder or armed robbery. The defendant contends that this was an error of law because a court is obliged to impose a sentence of life imprisonment for murder[5] and a sentence of imprisonment (whether or not suspended) for robbery.[6] The defendant contends that the Magistrate was suggesting that the circumstances of the offence committed by her were comparable with an offence of murder or armed robbery and this led the Magistrate into error in the exercise of his discretion.
[5] Criminal Law Consolidation Act 1935 (SA) s 11.
[6] Criminal Law Consolidation Act 1935 (SA) s 137.
The defendant contends that, given her age, character and antecedents and extenuating circumstances leading up to her use and cultivation of cannabis, the exercise of the discretion by the Magistrate to record a conviction was manifestly unreasonable.[7]
[7] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
The Police accept that the preconditions contained in the chapeau to section 16 (the court proposed to impose a fine and/or community service) and in paragraph (a) (defendant unlikely to commit such an offence again) were satisfied. However, the Police contend that, in weighing the personal circumstances of the accused and the circumstances referred to in paragraph (b) of section 16 against the circumstances of the offending, the Magistrate was entitled to conclude that good reason did not exist for not recording a conviction.
In relation to the observation by the Magistrate during submissions on penalty being made on behalf of the defendant, the Police point to the fact that it was only a remark during the course of submissions and did not form any part of the Magistrate’s sentencing remarks, and it is obvious that the Magistrate was not contemplating that no conviction would be recorded upon finding a person guilty of murder or armed robbery.
Seriousness of the offence
The defendant accepts that the Magistrate was entitled to take into account the degree of sophistication and the seriousness of the circumstances of the offence in determining whether to exercise his discretion not to record a conviction on count 2. The defendant accepts that, in a general sense, the more plants involved and the more prescribed equipment involved, the more serious the circumstances of the offence.
In making the observation concerning murder or armed robbery, the Magistrate should not be taken to have been suggesting that it would be appropriate, or even necessarily that there would be power, to exercise a discretion not to record a conviction upon a finding of guilt of armed robbery or murder. Nor should the Magistrate be taken to have been suggesting that an offence of possession of prescribed equipment for the purpose of cultivation of cannabis was comparable in nature or degree of seriousness to an offence of armed robbery or murder. In context, the Magistrate was merely illustrating in graphic fashion the point that regard must be had to the seriousness of the offence in exercising the discretion under section 16 by pointing to extreme examples in which, even if a discretion were enlivened, it would be plainly inappropriate to exercise the discretion not to record a conviction.
It is well established that sentencing remarks are not to be equated with reasons for judgment.[8] Observations made arguendo during submissions do not have the status of sentencing remarks. Observations made arguendo are prone to being misunderstood when taken out of context and without knowledge of the atmosphere in which they were made.
[8] Shrubsole v Rodriguez (1978) 18 SASR 233 per Wells J at 235.
The foundation for the defendant’s contention on the first ground is that the Magistrate made an error of law in contemplating that no conviction might be recorded for armed robbery or murder because the penalty for those offences is a term of imprisonment and not a fine and/or community service. For the reasons given in the previous paragraphs, this is a technical submission. At the level of pure technicality, it is not technically correct, at least in the case of robbery. While section 137 of the Criminal Law Consolidation Act 1935 (SA) prescribes a maximum penalty of imprisonment for 15 years for a basic offence of robbery, section 18 of the Act empowers a court, where it thinks that good reason exists for departing from the penalty provided by an Act which prescribes only a sentence of imprisonment for an offence, to instead impose a fine and/or a sentence of community service. In reality, it is beyond contemplation that the court would so act under section 18 and, if it did, that a court would find good reason for not recording a conviction under section 16(b) on a charge of armed robbery. This very analysis demonstrates that the Magistrate was merely alluding to armed robbery (and indeed murder) as a dramatic example of the point that the seriousness of the offence must be considered in determining whether good reason exists for not recording a conviction.
The Magistrate did not err in his assessment of the seriousness of the defendant’s offending by reason of his graphic allusion to the crimes of armed robbery and murder.
Manifestly unreasonable
In relation to the second ground, the question is not whether I would have exercised the discretion not to record a conviction but whether the decision of the Magistrate was manifestly unreasonable.
The Magistrate was entitled to take into account the objective seriousness of the offence. I agree with his characterisation of the offending as involving a deliberate and sophisticated attempt to break the law. It involved the use of a purpose built room in the shed, four plants being grown using a full hydroponic set up and an additional five light shades and six transformers beyond those in use. It was not a momentary or transient contravention of the law. While there were factors personal to the defendant identified in section 16(b) which might arguably have amounted to good reason not to record a conviction, ultimately in determining whether there was good reason it was necessary for the Magistrate to weigh those factors against the circumstances of the offending. The ultimate assessment that there was not good reason not to record a conviction was open to the Magistrate and was not unreasonable.
The defendant does not contend that the Magistrate acted inconsistently by recording a conviction on count 2 but not on count 1. Given his conclusion on count 2, the defendant might be regarded as fortunate that the Magistrate nevertheless exercised his discretion in her favour on count 1.
Conclusion
The defendant has not established either ground of appeal. I dismiss the appeal.