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…

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 Thomas v Police

Details

AGLC: Thomas v Police [2014] SASC 34
Case: [2014] SASC 34
Decision Date: 13 March 2014

CaseChat Overview and Summary

In the matter of Thomas v Police, the defendant appealed against the decision of the Magistrate to record a conviction on count 2 of the indictment, which related to the production or cultivation of cannabis. The defendant raised two grounds of appeal: first, that the Magistrate erred in law by considering irrelevant factors in his sentencing decision; and second, that the exercise of the discretion to record a conviction was manifestly unreasonable. The defendant argued that the Magistrate's observation that the set-up was sophisticated and his subsequent comment that people charged with more serious offences could similarly argue for no conviction to be recorded, were both irrelevant and prejudicial.

The court considered the legal issues presented by the appeal, focusing on the Magistrate's sentencing decision and the exercise of discretion under section 16 of the relevant Act. The court examined whether the Magistrate had erred in law by considering factors that were not relevant to the sentencing decision, and whether the exercise of discretion to record a conviction was manifestly unreasonable. The court also considered the nature of the offending, the personal circumstances of the defendant, and the maximum penalties for the offences.

In reaching its decision, the court found that the Magistrate had not erred in law by considering the sophistication of the cannabis growing set-up. The court noted that the Magistrate had considered the personal circumstances of the defendant, including her history of assault and her use of cannabis for medicinal purposes. The court also found that the exercise of discretion to record a conviction was not manifestly unreasonable, as the Magistrate had considered the circumstances of the offending and the maximum penalties for the offences. The court concluded that the defendant had not established either ground of appeal and dismissed the appeal.

In light of the above, the court upheld the decision of the Magistrate to record a conviction on count 2 of the indictment. The defendant's appeal was dismissed, and the conviction stands.

Orders

Orders of the court

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Background

Background to the litigation

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; and2.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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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