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…

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 WARREN v Police

Details

AGLC: WARREN v Police [2004] SASC 334
Case: [2004] SASC 334
Decision Date: 14 October 2004

CaseChat Overview and Summary

In the case of Warren v Police, the appellant contested the conviction and fine imposed by the Magistrate for growing 10 cannabis plants and possessing 1.2 kg of dried cannabis. The appellant had a sophisticated growing operation in a bunker beneath his house and had used cannabis for pain relief. Despite his cooperation with the police investigation, he sought to have the conviction set aside and instead have a penalty without conviction imposed. The Magistrate imposed a conviction and a fine of $400, which the appellant appealed. The appellant's primary contention was that the Magistrate had misapplied the discretion under s 16 of the Criminal Law (Sentencing) Act in sentencing him. He argued that the Magistrate had not considered the relevant circumstances of his case properly.

The court examined the Magistrate's sentencing decision to determine if there was an error in the exercise of discretion. The court noted that the Magistrate had indeed considered the appellant's circumstances, including the significant amount of cannabis involved, the elaborate setup of the growing operation, and the appellant's efforts to overcome his drug dependency. The Magistrate also took into account the appellant's health, lack of prior court appearances, and potential future impacts of the conviction on employment and travel. The court found that the Magistrate had appropriately exercised her discretion and did not misapprehend the principles involved in s 16. The court held that the Magistrate's decision was not so unreasonable as to warrant interference by the appellate court.

The appeal was dismissed by the court, upholding the Magistrate's imposition of a conviction and fine. The court emphasised that an appellate court does not interfere with a sentencing decision merely because it might have exercised discretion differently. The seriousness of the offending warranted the conviction, and there was no error in the Magistrate's application of the statutory discretion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.