Watson v Police No. Scgrg-98-1074 Judgment No. S6848

[1998] SASC 6848

WATSON V POLICE

[1998] SASC 6848
Magistrates Appeal
Perry J  (Ex tempore)
1 This is an appeal from the Magistrate's Court sitting in Adelaide against conviction and sentence on charges of knowingly producing six cannabis plants, contrary to s32(1)(a) of the Controlled Substances Act 1984 and the appellant having in his possession a piece of equipment for use in connection with the preparation of cannabis for smoking, consumption or administration, contrary to s31(1)(c) of the same Act.
2 The appellant appeared unrepresented in the court below and before me.  The police prosecutor a Mr Wojtasik, has deposed to the fact that before the matter was called on in the Magistrate's Court, he had a discussion with the appellant who complained about not having been issued with an expiation notice and demanded the return of hydroponic equipment seized by the police. 
3 According to Mr Wojtasik’s affidavit, he informed the appellant that the latter had not been issued with an expiation notice "As he had been charged with producing cannabis."  He goes on "The defendant informed me that he would plead guilty to both counts and I informed the defendant that the seized equipment would be returned." 
4 When the matter was called on in court the appellant pleaded guilty to both counts, following which the learned sentencing magistrate imposed a fine of $100 together with court fees and costs, which brought up a total of $265, as to which he allowed three months to pay.  He made an order that the drugs only, out of the various items which were seized, be forfeited to the Crown. 
5 I do not go further into the facts of the matter as it does not seem necessary to do so in order to dispose of the appeal.
6 This is a matter which it has been conceded by the respondent, involved simple cannabis offences, as to which, pursuant to s45(A)(2) must be preceded by an expiation notice under the Expiation of Offences Act 1996.
7 The obligation to give such a notice to the alleged offender is mandatory.  However s45(A)(7) provides that non-compliance with sub-s(2) "Does not invalidate a prosecution."
8 Those provisions were the subject of consideration in this Court by the Full Court in Offord v R .  In that case in the course of his judgment King CJ said
"There had been no expiation notice as required by sub-s.2.  Mr Kourakis acknowledged that the prosecution was saved from invalidity by sub-s.(7).  He submitted however, that the purpose of that sub-section was not to enable the authorities to ignore the mandatory provisions of sub-s.(2)...  he submitted that when an otherwise invalid prosecution was saved by sub-s.(7), the offender should not receive greater punishment than if sub-s.(2) had been complied with."
9 I agree with the above submissions.
"The penalty inflicted on the offender for a simple cannabis offence should not be affected by non-compliance by the police with the obligation imposed by sub-s.(2) to give an expiation notice whether the non-compliance results from a desire to prosecute for a more serious offence or from some other cause."
10 It seems to me that in approaching the question of the penalty which was imposed, it would be unreal to ignore the amount of costs inflicted on the appellant which brought the fine of $100 up to $265.
11 Mr Gow for the respondent has conceded that the fee for an expiation notice would have been $150.  It seems to me that it would be proper in all the circumstances to deal with the matter on the basis that the appeal be allowed to reduce the total outgoing, whether by way of fine or costs, to no more than $150. 
12 Before taking that course however, I should deal with a further complication.
13 It appears from the description of the equipment which was seized as described in the affidavits which have been put before me, that although it might answer the description of equipment used in the cultivation of cannabis, for example hydroponic equipment, or for the packaging of it for sale, for example scales and plastic bags, it did not strictly answer to the description of equipment "for use in connection with the preparation of cannabis ...  for smoking consumption or administration."
14 The appellant, as I have said, was unrepresented in the court below.  His plea of guilty was a product of an agreement reached with the prosecution as to the return to him of the hydroponic equipment.  He entered the plea of guilty to both counts without the benefit of a complete understanding of his legal rights.
15 In those circumstances it appears to me that on appeal I should look at the matter broadly and restore him into the position he would have been if he had had a complete understanding of his legal rights, if he had been properly advised in the matter as to those rights, and if he had taken the course that might then have suggested itself to him. 
16 In the circumstances, Mr Gow has conceded, given that there is no evidence of any facts which would sustain the conviction on the second count, that conviction should be quashed.
17 In the result, the conviction on count two is quashed, the conviction on the first count however is sustained, and on that count I allow the appeal for the purposes of reducing the penalty to a fine of $150.  There will be no order as to costs in the court below.  The $150 is to be paid within two months of today.
18 There will be no order as to the costs of the appeal.