WARREN v Police - [2004] SASC 334

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
WARREN v POLICE
Judgment of The Honourable Justice White (ex tempore)
14 October 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PENALTIES - PRODUCING OR CULTIVATING
Appellant pleaded guilty to growing 10 cannabis plants and to possession of 1.2 kg of dried cannabis - Sophisticated setup involving bunker under appellant's house - Appellant used cannabis for pain relief - Appellant cooperated with police when they investigated his house - Appellant concerned about effect of conviction on future overseas travel - Magistrate imposed conviction and fine of $400 - Appellant sought to have conviction set aside and penalty without conviction imposed - Conviction appropriate given seriousness of offending - No reason to interfere with Magistrate's sentencing discretion - Appeal dismissed.
Magistrates Court Act 1991, s 42; Controlled Substances Act 1984, s 31, s 32; Criminal Law (Sentencing) Act 1988, s 16, referred to.
Sims v Police [2000] SASC 102; House v The King (1936) 55 CLR 499; Uznanski v Searle (1981) 26 SASR 388, applied.
Russell v Police [2002] SASC 27; R v Brown; Ex parte Attorney-General (Q) [1994] 2 Qd R 182, considered.

WARREN v POLICE
[2004] SASC 334
Magistrates Appeal (ex tempore)
WHITE J
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991.
On 9 August 2004, the appellant pleaded guilty to two charges. The first was a charge of possessing cannabis, contrary to s 31(1)(a) of the Controlled Substances Act 1984. The second was a charge of producing 10 cannabis plants contrary to s 32(1)(a) of the Controlled Substances Act.
In respect of each offence, the Magistrate entered a conviction and imposed a fine of $400. In addition, the Magistrate ordered the appellant to pay court costs, prosecution costs and the Victims of Crime Levy.
On this appeal, the appellant submits that the Magistrate was in error in entering the respective convictions. He submits that the Magistrate should have invoked s 16 of the Criminal Law (Sentencing) Act 1988 and should, in respect of each offence, have imposed a penalty but without recording a conviction.
Circumstances of the Offending
The appellant was born on 28 December 1949. He was aged 54 at the time of the offences, which were committed on 3 May 2004.
The appellant and his wife moved from Queensland to Murray Bridge in about 1999. The appellant had previously worked as a builder. After he and his wife purchased the property at Murray Bridge, the appellant built a bunker under the house for the purpose of growing cannabis. This bunker was completed before the family moved into the house. The appellant had attempted to grow cannabis hydroponically in the bunker but had not succeeded. Instead, he had commenced growing cannabis organically.
When the police attended at the home on 3 May 2004, the appellant showed them a concealed doorway hidden under an aquarium in a room converted into a walk-in wardrobe. On opening this hidden doorway, the police descended a stepladder leading into the bunker. The bunker comprised two rooms, each containing five plants being grown organically. The plants were approximately 1.2 metres tall with flexible netting strung out over the tops. Suspended above the plants were lights containing 600- and 1,000-watt light bulbs. Those lights were connected to transformers. The police also located books containing instruction on the methodology for growing cannabis, electrical timers, pressure gauges and other equipment commonly used in the growing of cannabis.
In addition, the police located several bags containing cannabis heads and an amount of cannabis which was being dried. This weighed 1.2 kg and was the subject of the first charge. The growing of the 10 cannabis plants was the subject of the second charge.
Section 16
Section 16 of the Criminal Law (Sentencing) Act vests a discretion in a court, in certain circumstances, to impose a penalty without recording a conviction. In particular, the court may refrain from entering a conviction if it is satisfied that the defendant is unlikely to commit the offence again and if, having regard to the trifling nature of the offences, or the character, antecedents, age or physical or mental condition of the defendant, good reason exists for not entering a conviction. The construction and application of s 16 was discussed by Bleby J in Sims v Police [2000] SASC 102. In Sims, at [7], Bleby J said:
“… the assumption behind s 16 of the Sentencing Act is that, in most cases, a conviction will be recorded. Section 16 is by way of exception to the normal rule. In order to exercise the power conferred by s 16, the court would have to identify what it was that provided good reason for not recording the conviction. …”
Appellate Interference with a Sentence
The Magistrate said that she was not prepared to deal with the charges without recording a conviction, notwithstanding the appellant’s age and notwithstanding that he had no prior record.
The appellant seeks a review of the exercise by the Magistrate of her sentencing discretion. This Court will interfere with the exercise of a discretion involved in sentencing only when it is satisfied that the sentencing court has acted upon some wrong principle, or that it has allowed irrelevant considerations to influence it, or if it has failed to have regard to relevant considerations, or it has misunderstood relevant facts or, alternatively, even where no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion appropriately.
I refer in this regard to House v The King (1936) 55 CLR 499 at 504-5 and to the decision in Uznanski v Searle (1981) 26 SASR 388 per King CJ at 389.
Consideration of Appeal
In this case, it was submitted that the Magistrate had misapprehended the principles upon which the s 16 discretion was to be exercised. In particular, it was submitted that whilst s 16 required the Magistrate to consider the whole of the appellant’s circumstances, the Magistrate had focussed inappropriately on particular aspects only. Reliance was placed in this respect on the decision of Perry J in Russell v Police [2002] SASC 27 and on the judgment of Macrossan CJ in R v Brown; Ex parte Attorney-General (Q) [1994] 2 Qd R 182 at 185.
I do not agree that the Magistrate has misapprehended the discretion vested in her by s 16. The Magistrate referred in her brief sentencing remarks to a number of features pertinent to the application of s 16. The Magistrate clearly did not regard the offence as trifling, stating that she regarded the amount of cannabis involved (both in plant form and in head form) as being significant. I agree with the Magistrate’s conclusion in that respect. I refer again to the fact that there were 10 plants and 1.2 kg of dried cannabis.
The Magistrate also noted that cannabis was being grown in a purpose-built underground bunker, access to which was concealed. The arrangements for the growing of the cannabis were described by the Magistrate as “elaborate”. It was evident that the growing of the cannabis on 3 May 2004 was not an isolated incident. On the contrary, it had been continuing for some time. Neither offence could reasonably be described as trifling.
The Magistrate referred to a number of matters relating to the appellant’s character, age, and antecedents. She referred to the lack of prior court appearances, to the appellant’s health, to the steps taken by him since 3 May 2004 to overcome a drug dependency, to his various medical conditions described in a medical report received by the Magistrate and to the effect which convictions might have on his prospects of employment and ability to travel overseas.
These were the very kinds of matters which s 16 required the Magistrate to consider. Having referred to those matters, it is evident that the Magistrate considered that there was not “good reason”, as required by s 16, for the imposition of a penalty without recording a conviction. I add that s 16 required the Magistrate to be satisfied that there was good reason for not recording a conviction, rather that there was good reason for recording a conviction.
Although the Magistrate’s remarks were brief, it does seem to me that the Magistrate did address the relevant considerations which arise under s 16 and did consider the relevant matters upon which the appellant relied.
The Magistrate was provided with evidence indicating that the appellant had taken impressive steps to overcome his drug addiction. He had voluntarily referred himself to the Drug and Alcohol Services Council and had undergone a detoxification programme between 8 May and 18 May 2004. This was very shortly after the police had attended at his premises. The success of the appellant’s participating in that programme is evidenced by the absence of any drugs in his system, notwithstanding testing over a period of time of just under three weeks in June 2004. The efforts taken by the appellant indicated a degree of insight by him into his condition, and also, in my view, demonstrated strength of character. The programme which he underwent cannot have been easy. It also evidences a willingness by the appellant to deal with the consequences of his behaviour. But I do not think that these were matters which were overlooked. The Magistrate referred expressly to the report which detailed the appellant’s attendance for drug and alcohol counselling and detoxification and the apparent success of that programme.
The Magistrate received a medical report from the appellant’s general practitioner. That indicated that the appellant suffered from a number of painful and discomforting conditions, the presence of which helped to explain why he sought pain relief by the use of cannabis. There was evidence that the appellant is now seeking conventional treatment for those conditions but there was also evidence that he had been seeking, in respect of at least some of those conditions, conventional treatment even prior to 3 May 2004. The Magistrate did not overlook the significance of the appellant’s medical conditions. She explicitly stated that she accepted that his drug use was because of the medical problems.
Mr McLean submitted that the Magistrate did not refer to a number of relevant considerations. He submitted that the Magistrate had not referred to an ultimatum given to the appellant by his wife that she would leave him if he did not cease his drug use and the growing of the cannabis. It is true that that is not a matter explicitly mentioned by the Magistrate. As I understand the submission, the ultimatum had assisted in bringing home to the appellant the seriousness of his conduct.
Mr McLean also submitted that the Magistrate had not referred to the fact that the offences committed by the appellant were in the nature of “victimless” offences. I understand the sense in which that submission was put, but it should be noted that drug abuse in the community does come at a cost. For example, the detoxification programme which the appellant underwent is provided as a result of the commitment by the community to assisting persons to overcome drug abuse.
It was submitted that the Magistrate had overlooked that the appellant’s production and use of the cannabis was in the nature of self-medication for his health condition. For reasons which I have already given, it is my opinion that the Magistrate did not overlook that feature. As I say, she expressly accepted that the appellant’s use of cannabis was because of his medical problems.
It was submitted that the Magistrate had not referred to the appellant’s cooperation with the police when they attended at his home. He did not deny, as do some offenders, that he was growing cannabis, and he facilitated the access by leading the police officers to the concealed bunker.
Next, it was submitted that the Magistrate failed to have regard to the effect of the entry of convictions on the appellant’s prospects of travel overseas. It is true that, in some cases, a conviction for a drug offence can operate as an impediment to access to some countries but there was no evidence before the Magistrate that any particular plan of the appellant’s would be impeded by the entry of the convictions.
Finally, it was submitted that the Magistrate failed to have regard to the possible effect of the convictions on the ability of the appellant to obtain employment. One may accept that there may be some occupations which may now be closed to the appellant, and that there may be some occupations in which it will be harder for him to obtain employment, because of the convictions. I note, however, that the appellant has not worked since 1985 as a result of an injury to his back. It is unclear whether the appellant is presently seeking employment. He is currently in receipt of sickness benefits and, as I understand it, has been in receipt of sickness benefits for quite some time.
It is not clear to me that, in a practical sense, the convictions will impair the appellant’s ability to obtain employment. In my opinion, the circumstances of this case are quite different from those considered by Perry J in Russell v Police, upon which the appellant placed particular reliance. In that case, the appellant was a young man, 25 years old, in employment of a kind in which the entry of a conviction may have prevented him continuing. That is not this case.
The shortness of the Magistrate’s reasons gave rise to a submission that the Magistrate had given only fleeting regard to the matters relied upon by the appellant. The Magistrate gave her decision immediately after hearing the parties’ submissions. This Court has often said that account has to be taken, in considering the sufficiency of a Magistrate’s reasons and whether a Magistrate has had regard to all the matters put in submissions, to the circumstances in which Magistrates prepare and give their decisions. Those circumstances include the fact that Magistrates commonly deliver their reasons in cases such as this in the course of a busy Magistrates Court list. They are, as in this case, often delivered ex tempore, without the opportunity for considered preparation.
In the brief reasons delivered in this case, the Magistrate has referred to almost every aspect relied upon by the appellant, although, as noted above, there were some which were not mentioned by her. I do not consider that it should be inferred in this case that the Magistrate has, by reason of the fact that she has not mentioned those particular matters, overlooked them or given them only fleeting consideration.
Conclusion
Having considered the respective grounds of appeal and the submissions for the appellant, I am not satisfied that an error of the requisite type in the exercise by the Magistrate of the discretion vested in her by s 16 of the Criminal Law (Sentencing) Act has been established. Nor am I satisfied that the decision is so obviously unreasonable that it should not be allowed to stand. The appellant’s offending was of a kind which had to be regarded seriously. I accept that the entry of the convictions may result in hardship for the appellant in some circumstances. My acceptance of that, however, is not sufficient to warrant my interfering with the Magistrate’s decision. An appellate court does not interfere with a sentencing decision simply because it is of the view that, had it been the court considering the matter at first instance, it may not have reached the same decision. It is a well established principle that if the discretion at first instance has been properly exercised, an appellate court will not interfere, even if it itself would have exercised the discretion differently.
For these reasons the appeal should be dismissed.
The order of the Court is that the appeal is dismissed.