WARREN v Police - [2010] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WARREN v POLICE
[2010] SASC 78
Judgment of The Honourable Justice Duggan
1 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant pleaded guilty to knowingly having cannabis in his possession for the purposes of selling it to another person – Magistrate sentenced appellant to four months’ imprisonment suspended after one month served on condition that appellant enter bond to be of good behaviour – whether sentence manifestly excessive – whether Magistrate failed to take into account the plea of guilty and that employment available to the appellant.
HELD: appeal dismissed – sentence not manifestly excessive – Magistrate did not overlook plea of guilty – prospect of employment properly taken into account by Magistrate – both personal and general deterrence relevant in sentencing offences involving the sale of drugs – matters personal to the appellant properly taken into account.
Criminal Law (Sentencing) Act 1988 (SA) s 38(2a); Controlled Substances Act 1984 (SA) s 32(3), referred to.

WARREN v POLICE
[2010] SASC 78
Magistrates Appeal: Criminal

DUGGAN J: The appellant pleaded guilty to knowingly having cannabis in his possession for the purpose of selling it to another person. The offence took place on 29 July 2009. He was sentenced in the Mount Barker Magistrates Court to imprisonment for four months. The Magistrate made an order under s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) directing that the appellant serve a period of imprisonment for one month with the remainder of the sentence to be suspended on condition that the appellant enter into a bond to be of good behaviour for three months.
The appellant appeals against the sentence imposed. The grounds of appeal are firstly, that the failure to suspend the entire sentence resulted in a sentence which was manifestly excessive and, secondly, that the Magistrate failed to take into account reasons put to the Court in submissions for leniency which, it is claimed, justified the suspension of the full term of imprisonment.
The police conducted a search of the appellant’s house on 29 July 2009. They found a Tupperware box which contained cannabis in ten resealable plastic bags. When questioned, the appellant stated that the cannabis belonged to him and another person and that it had been placed in individual bags for sale. He told the police that he had sold the parcels of cannabis to friends for the same price that he had paid for them.
An issue arose on appeal as to the basis upon which the appellant was sentenced. When sentencing the appellant the Magistrate said:
There was obviously a commercial element to your offending. Your counsel has explained you lost [your] employment so you got involved in selling drugs to make ends meet. The suggestion is this was a one off offence and you were caught very shortly after you had started. That might be so but you had ten bags of cannabis that the police found and it is pretty obvious you intended to sell each of those bags of cannabis to whoever you could persuade to give you money for them. Yours was a small scale commercial operation designed to provide you with money.
An affidavit sworn by counsel for the appellant who appeared before the Magistrate was tendered on the hearing of the appeal. In the affidavit counsel referred to the submission she made to the Magistrate:
I say that during my submissions, at no time did I state that the appellant had been in fact selling the cannabis for a “profit”. I stated as per the annexed submissions herein that “As a result of financial necessity especially in the light of his new born and the desire to buy him things and provide for him, [the appellant] felt driven to partake in small scale dealings of the kind forming the subject of this charge”.
The Magistrate did not use the word “profit” in his sentencing remarks, but he would have been justified in doing so in the light of the submission which was made to him by counsel. The clear effect of the submission was that the appellant was in financial difficulty and sold the drugs in order to meet his living expenses. The Magistrate correctly observed that this constituted a small scale commercial operation designed to provide the appellant with money. The appellant’s assertion that he was a joint owner of the drugs was not maintained at the hearing before the Magistrate.
Counsel for the appellant did not criticise the length of the sentence of imprisonment. However, it was submitted that the Magistrate erred in directing that the appellant was to serve a period of one months’ imprisonment with the remainder of the term suspended, rather than suspending the entire sentence.
The appellant was 18 years of age and unemployed at the time of the offence. He is presently unmarried but has one child and is required to assist in the child’s support.
Previously, on 2 July 2008 he appeared before the Mount Barker Youth Court charged with possessing cannabis on 6 July 2007. Without proceeding to a conviction the Court required the appellant to enter into an obligation in the sum of $150 to be of good behaviour for 12 months.
It was also argued that the Magistrate did not take into account the appellant’s early plea of guilty or that he had employment available to him when considering whether to suspend the sentence.
The Magistrate referred to the plea of guilty in the context of reducing the sentence. In my view it is unlikely that he would have overlooked this aspect when considering the matters which were relevant to suspension. Furthermore, in the light of the Magistrate’s remarks relating to deterrence, it is unlikely that the prospect of employment would have affected his approach to suspension other than to the extent that he took this factor into account when deciding, in the appellant’s favour, that only one quarter of the sentence would be served.
It is apparent from his remarks that the Magistrate considered suspending the whole of the sentence. However, he decided against that course in order to give effect to general and personal deterrence. No error has been demonstrated in this respect as it is well established that both categories of deterrence are relevant in sentencing for offences involving the sale of drugs.
Counsel for the appellant stressed the appellant’s age and the fact that he had only one appearance before the Youth Court for possession of a drug. However, the Magistrate acknowledged the appellant’s youth as a factor relevant to the issue of suspension and it is obvious that matters personal to the appellant were taken into account when a direction was given that only a portion of the sentence was to be served.
In my view the sentence is within the range appropriate for offences of this nature and the decision not to suspend the entire period of imprisonment was well within the Magistrate’s discretion.
The appeal will be dismissed. However, there is one further aspect which requires attention. Counsel for the respondent pointed out that the complaint alleged the offence was contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA). There is no s 32(1)(e). Furthermore, s 32(1) creates the offence of trafficking in a large commercial quantity of a controlled drug. The charge should have been laid under s 32(3) which creates the lesser offence of trafficking in a controlled drug.
The Magistrate said that the offence was contrary to s 32(1)(e) when passing sentence. However, it is clear from his remarks that the offence he had in mind when sentencing was a breach of s 32(3). Although the error did not have any effect on the sentence imposed, the complaint and conviction will be amended by the deletion of the reference to s 32(1)(e) and the insertion of the correct section, namely, s 32(3).