YFANTIDIS v POLICE

[2012] SASC 208

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

YFANTIDIS v POLICE

[2012] SASC 208

Judgment of The Honourable Justice White (ex tempore)

5 November 2012

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

The appellant was charged with trafficking in a controlled drug, namely cannabis, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) - a person may traffic in a controlled drug in three different ways: by selling the drug; by possessing the drug with the intention of selling it; or by taking part in the process of sale of the drug.

The prosecution accepted the appellant's plea of guilty on the basis that he had possession of the cannabis for his own use and for occasional casual supply to friends for no financial gain - the Magistrate also sentenced the appellant on this basis and imposed a fine of $8,000.

Held (allowing the appeal):

(1) on the factual basis accepted by the prosecutor, the appellant should not have been regarded as committing a trafficking offence under s 32(3) (at [7]);

(2) the Magistrate should instead have found the appellant guilty of possessing cannabis with the intention of supplying it to another person, contrary to s 33I(2)(b) of the Act and should then have sentenced him by reference to the lower maximum penalties applicable to that offence (at [7]).

Controlled Substances Act 1984 (SA) s 32, s 33I, s 33R; Summary Offences Act 1953 (SA) s 41, referred to.

YFANTIDIS v POLICE
[2012] SASC 208

Magistrates Appeal

1. WHITE J (ex tempore): The appellant was charged with trafficking in a controlled drug, cannabis, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA). The appellant was also charged with the unlawful possession of $1000 in cash, contrary to s 41(1) of the Summary Offences Act 1953 (SA). He pleaded guilty to the first offence and the prosecution then presented no evidence on the second.

2. A person may traffic in a controlled drug in three different ways:  by selling the drug; by possessing the drug with the intention of selling it; or by taking part in the process of sale of the drug.[1]  The count which charged the trafficking offence in the present case did not particularise the way in which the appellant was said to have trafficked in the cannabis. 

   [1] See the definition of “traffic” in s 4(1) of the Controlled Substances Act 1984 (SA).

3. The maximum penalty for a basic offence of trafficking in a controlled drug is $50,000 or imprisonment for 10 years or both.  The Magistrate imposed a fine of $8,000 after allowing a reduction of $1,000 on account of the appellant’s plea of guilty.

4. The prosecution accepted the appellant’s plea on the basis that he had had the cannabis in his possession for his own use as well as occasional casual supply to friends for no financial gain.  The Magistrate sentenced the appellant on the same basis.

5. The respondent accepts that on the factual basis accepted by the prosecutor the appellant should not have been regarded as committing a trafficking offence under s 32(3). Instead, the appellant should have been convicted of a contravention of s 33I(2)(b) of the CSA. That provision makes it an offence for a person to have possession of cannabis, cannabis resin, or cannabis oil with the intention of supplying it to another person. The maximum penalty for a contravention of s 33I(2)(b) is significantly less than that applying to contraventions of s 32(3), being a fine of $2,000 or imprisonment for two years, or both.

6. Section 33R(1) of the CSA empowers a court which is not satisfied that a person has committed the offence charged, but is satisfied that the person has committed an equivalent or lesser offence, to find the person guilty of that other offence.

7. On the basis of the plea accepted by the prosecutor, the Magistrate in this case should have found the appellant not guilty of the charged s 32(3) offence, but guilty of a contravention of s 33I(2)(b). The Magistrate should then have sentenced the appellant on the basis that the maximum applicable penalty was a fine of $2,000 or imprisonment for two years, or both, rather than the much higher maximum applicable under s 32(3).

8. It follows that the appellant has been wrongly convicted of a contravention of s 32(3) and sentenced on an incorrect basis. The respondent accepts that in these circumstances the appeal should be allowed and the matter should be remitted for further hearing in the Magistrate’s Court.

9. I agree that that is the appropriate course of action.  Accordingly, I make the following orders:

   1.     The appeal is allowed.

   2.     The orders made by the Magistrate on 9 August 2012 are set aside.

   3.The matter is remitted to the Magistrate’s Court for further hearing before another Magistrate.

   4.     No order as to costs.