Anderson v The Queen

High Court of Australia|1993-07-01|Before: Gaudron JJ, Dawson JJ, Mullighan J, Olsson J

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Anderson v The Queen [1993] HCA 59

ORDER Appeal allowed. Set aside the order of the Court of Criminal Appeal of South Australia. Remit the matter to that Court for determination of the appeal in accordance with the reasons for judgment of this Court.

The appellant was charged on indictment before the District Court of South Australia on three counts. He pleaded guilty to the first count of producing cannabis contrary to s. 32(1)(a) of the Controlled Substances Act 1984 SA ("the Act") and, on the second and third counts, the Crown accepted pleas of guilty to offences of simple possession of cannabis and cannabis resin contrary to s. 31(1)(a) of the Act. The second and third counts have no relationship to the first count which arose out of the discovery of a number of cannabis plants that were being cultivated by the appellant near his residence at Belair in South Australia. The present appeal relates to the sentence of twelve months imprisonment which Chief Judge Brebner passed upon the appellant on the first count.

(a) manufacture or produce a drug of dependence or a prohibited substance;

(5) A person who contravenes this section shall be guilty of an offence and shall, subject to subsection (6), be liable to a penalty as follows:

(a) where the substance the subject of the offence is cannabis or cannabis resin -

(i) if the quantity of the cannabis or cannabis resin involved in the commission of the offence equals or exceeds the amount prescribed in respect of cannabis or cannabis resin for the purposes of this subsection - a penalty of both a fine not exceeding $500,000 and imprisonment for a term not exceeding twenty-five years; or

(ii) in any other case - a penalty not exceeding $50,000 or imprisonment for ten years, or both.

As the quantity of cannabis "involved in the commission of the offence" was not proved to be more than the prescribed quantity, the maximum penalty to which the appellant was liable was that prescribed by par. (a)(ii) of s. 32(5). The provisions of sub-s. (5) were subject to the provisions of sub-s. (6): Where a person is found guilty of an offence of producing cannabis but the court is satisfied that he produced the cannabis solely for his own smoking or consumption, the person shall be liable only to a penalty not exceeding five hundred dollars. The appellant did not attempt to bring his case within the provisions of sub-s. (6).

The appellant's appeal to the Court of Criminal Appeal against his sentence was dismissed by a majority (King C.J. and Mullighan J., Olsson J. dissenting). This appeal challenges the grounds on which the Full Court dismissed the appellant's appeal. To appreciate the issues considered in the courts below, it is necessary to refer to two earlier decisions of the Full Court which allowed appeals against sentences imposed for offences against s. 32(1) of the Act, namely, Offord v. The Queen [1] and Reg. v. Mitropolous [2] . In each of these cases, a failure to comply with the mandatory requirements of s. 45a of the Act led to a reduction in the sentence imposed. Section 45a applies only to a "simple cannabis offence". It gives an offender an opportunity of avoiding prosecution by the payment of an "expiation fee". Relevantly, the term "simple cannabis offence" was defined by s. 45a(8)(d) [3] to mean -

an offence arising out of the cultivation of cannabis plants, not being an offence involving cultivation of the plants for commercial purposes. An offence falling within this definition does not necessarily fall within s. 32(6): a person may cultivate cannabis plants with the intention of smoking or consuming some of the produce himself and of giving the rest of the produce away. In such a case there would be no "commercial purpose" taking the offence outside s. 45a, yet the intention of giving some of the produce away would show that the offender had not produced the cannabis "solely for his own smoking or consumption" so as to attract the application of s. 32(6). 1. (1991) 56 S.A.S.R. 98. 2. (1991) 161 L.S.J.S. 121. 3. The paragraph was amended but the amendment came into force after the offence was committed.

Where an offence against s. 32(1)(a) answers the description of a simple cannabis offence, s. 45a(2) requires that -

before a prosecution is commenced, an expiation notice must be given to the alleged offender stating that the offence may be expiated by payment to the Commissioner of Police of the prescribed expiation fee before the expiration of 60 days from the date of the notice. An alleged offender who pays the expiation fee in accordance with such a notice is not to be prosecuted for that offence: s. 45a(4). However, sub-s. (7) provides: Non-compliance with subsection (2) does not invalidate a prosecution. In Offord v. The Queen, King C.J. [4] agreed with a submission "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." He added: 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. The question which has to be decided is whether the subject offences are simple cannabis offences. This case was followed in Mitropolous where Olsson J., speaking for the Full Court, said [5] : As this court indicated in Offord, once it appeared that the offence was (by definition) a simple cannabis offence, the appropriate course was for the learned sentencing judge to impose a fine which was equivalent to the expiation fee which would otherwise have been payable had the police correctly assessed the situation at the outset and issued an expiation notice.

That was the clear rationale of Offord. Despite the careful and ingenious argument advanced by Mr. Rofe, the fact remains that the decision in Offord is expressed in clear and unmistakable terms and, in my view, correctly reflects both the plain intention of Parliament and the express provisions of s. 45a.

(1991) 56 S.A.S.R., at p. 101. 2. (1991) 161 L.S.J.S., at p. 123.

In the present case, the appellant invoked the principle stated in these cases, contending that, though he had been involved in the cultivation of the cannabis plants found near his home, the cultivation had not been "for commercial purposes". The issue of commercial purpose or no commercial purpose was tried before Chief Judge Brebner. The appellant gave no evidence. His Honour found that, if the crop had come to maturity, it might have yielded 3.5 kgs of dried usable material which would have been worth at least $20,000 on the illicit market. He stated his conclusion thus:

I am satisfied, and satisfied beyond reasonable doubt, that the size and the value of the crop that was likely to be produced as a result of the defendant's efforts (if the plants grew to maturity as, no doubt, the defendant intended that they should) was such as to lead me to no other conclusion but that the defendant's intentions included that of selling at least a portion of his expected harvest. That being the case, his cultivation of cannabis plants involved cultivation for commercial purposes within the meaning of s. 45a of the Controlled Substances Act 1984.

If that finding was rightly made, his Honour's sentencing discretion was unaffected by the principle stated in Offord and Mitropolous . In any event, the principle stated in those cases is too absolute: it purports to prescribe an amount equal to the expiation fee as the maximum penalty which can be imposed for any offence falling within s. 45a where there has been a failure to give an expiation notice. But it is s. 32(5) which prescribes the applicable maxima and, subject to sub-s. (6), defines the extent of the sentencing discretion. Section 44 prescribes a number of factors which a court must take into account in imposing a sentence for offences which include indictable offences under s. 32. One of the factors relevant to the present case was the existence of the "commercial or other motives" of the appellant: s. 44(d)(i). No doubt another relevant factor to be taken into account in exercising the sentencing discretion - a conclusive factor in the ordinary case - is an offender's lost opportunity to avoid prosecution by payment of an expiation fee. But s. 45a does not limit the sentencing discretion. However, Chief Judge Brebner understandably treated the judgments in Offord as prescribing a limit to the sentencing discretion in the case of simple cannabis offences.

In the Full Court, King C.J. correctly analyzed the relationship between ss. 31 and 32 on the one hand and s. 45a on the other. His Honour pointed out that s. 45a does not create a new and lesser offence. Accordingly, neither s. 31 nor s. 32 creates "an aggravated form of the offences for penalty purposes so as to require that the circumstances of aggravation be pleaded in accordance with the principles in Kingswell v The Queen [6] ; Reg. v. Meaton [7] ; Reg. v. Hietanen [8] ". His Honour observed that, where there had been an omission to give an expiation notice, there may be a dispute as to whether the offence was a "simple cannabis offence" and "that dispute must be resolved by oral evidence in the usual way". Mullighan J. agreed with the observations of King C.J. as to the relationship of ss. 31, 32 and 45a of the Act.

(1985) 159 C.L.R. 264. 2. (1986) 160 C.L.R. 359. 3. (1989) 51 S.A.S.R. 510.

Chief Judge Brebner had decided the issue of the existence of a commercial purpose adversely to the appellant beyond reasonable doubt. The prosecution had, without objection, accepted the onus of proving that issue beyond reasonable doubt at the commencement of the hearing. It has been the practice in South Australia for the prosecution on sentence to carry the onus of proving beyond reasonable doubt contested facts unfavourable to an offender which have not been established by the verdict or plea of guilty [9] . In the light of the concession made by the prosecution, it is unnecessary to decide whether that practice is correct in point of law in respect of facts not amounting to circumstances of aggravation which increase the liability to punishment. The practice in other States and Territories is not uniform [10] . However, the acceptance by the prosecution of such an onus was critical to the dissent of Olsson J. His Honour misconceived the relationship between s. 32 and s. 45a, holding that s. 45a would not apply -

unless and until, pursuant to sub-s. (6) of s. 32 of the Act, the appellant demonstrated that the plants had been cultivated solely for his own smoking or consumption and, thus, it emerged that the cultivation was, in totality, of the type envisaged by sub-s. (8)(d) of s. 45a, i.e. it was of the nature of a simple cannabis offence. As the onus of proving that s. 32(6) applies rests on the offender, his Honour thought that the prosecution, by accepting an erroneous onus of proof, might have misled the appellant into electing not to call evidence. For that reason, but for that reason only, his Honour would have allowed the appeal. Olsson J. was concerned that Chief Judge Brebner had been "left in the situation in which he had no direct evidence before him from the appellant as to the latter's state of mind at the critical time". That concern was misplaced, for it was entirely a matter for the appellant to choose whether or not to give evidence on the issue of the existence of a commercial purpose. His Honour clearly accepted that, in the absence of evidence from the appellant, the evidence before Chief Judge Brebner fully supported the finding that the appellant had cultivated the cannabis plants for a commercial purpose. He said: In those circumstances it appears to me that, not only was the learned Chief Judge well entitled, on the state of the evidence before him, to come to the ultimate conclusion which he expressed, but, also, when the situation is viewed objectively, that was the only logical conclusion to which he could have come. It lay within the province of the appellant to persuade him otherwise, by leading or giving the appropriate rebuttal evidence, but he elected not to do so. This was the conclusion which King C.J. adopted when he concluded, "[f]or the reasons given by Olsson J., that the learned judge came to the correct conclusion". 1. Law v. Deed , [1970] S.A.S.R. 374, at pp. 377-379; Reg. v. Stehbens (1976), 14 S.A.S.R. 240, at pp. 245-246. 2. The approach in South Australia has been followed in New South Wales (Reg. v. Martin , [1981] 2 N.S.W.L.R. 640, at p. 642); in Tasmania (Prokopiec v. The Queen , [1982] Tas. R. 170, at p. 175; and see Warner, Sentencing in Tasmania (1991), pp. 30-31); in the Australian Capital Territory (Reg. v. Capobianco (1978), 20 A.C.T.R. 29, at pp. 30-31); and perhaps in Western Australia (Reg. v. Aloia , [1983] W.A.R. 133, at p. 138, per Pidgeon J., but cf. p. 136, per Burt C.J.; Reg. v. Scanlan (1986), 21 A. Crim. R. 428, at p. 432, per Smith J., p. 434, per Rowland J.). However, a different view has been taken in Victoria (Reg. v. Chamberlain , [1983] 2 V.R. 511, at pp. 513-515; Reg. v. Halden (1983), 9 A. Crim. R. 30, at pp. 35, 39; and see Fox and Freiberg, Sentencing: State and Federal Law in Victoria (1985), pp. 51-54); in Queensland (Reg. v. Welsh , [1983] 1 Qd R. 592, at pp. 594-595; Reg. v. Boney; Ex parte Attorney-General , [1986] 1 Qd R. 190, at pp. 192-193, 208-209; Reg. v. J. (Jnr) (1989), 41 A. Crim. R. 466, at pp. 469-470, 476-477). The placing on the prosecution of an ultimate onus of proof beyond reasonable doubt seems to be at odds with what was said in Reg. v. Tait and Bartley (1979), 46 F.L.R. 386, at p. 396; 24 A.L.R. 473, at p. 483.

The appellant sought to impugn the review by Olsson J. of the findings made by Chief Judge Brebner and thereby sought to impugn the conclusion expressed by King C.J. True it is that Olsson J. misunderstood the relationship between s. 32(6) and s. 45a but it is clear that his Honour was satisfied that, putting s. 32(6) to one side, the findings made by Chief Judge Brebner could not be validly attacked. It is equally clear that King C.J., in adopting the reasons of Olsson J. for affirming the finding of commercial purpose, did not adopt his Honour's view of the applicability of s. 32(6).

Mullighan J., briefly referring to the evidence, commented that it was "not surprising that the critical issue was resolved adversely to [the appellant]".

The appellant's submission that the Full Court had not properly considered the sufficiency of the evidence to support a finding of commercial purpose must be rejected. In the view of all three members of that Court, given that the prosecution accepted the onus of proving that issue beyond reasonable doubt, the issue was correctly determined against the appellant. It is not necessary to determine whether that was the appropriate onus or standard of proof.

The appellant, after entering a plea of guilty, was convicted in the Central District Criminal Court of South Australia of producing cannabis in breach of s. 32(1)(a) of the Controlled Substances Act 1984 SA ("the Act"). Subject to s. 32(6), the maximum penalty for that offence in the circumstances of the present case was fixed by s. 32(5)(a)(ii) as a fine not exceeding $50,000 or imprisonment for ten years, or both. Section 32(6) provided for a reduction of the maximum penalty to a fine not exceeding $500 in a case where "the court" was "satisfied" that the offender had "produced the cannabis solely for his own smoking or consumption". Section 4(1) of the Act defines "production" as "including cultivation".

It is common ground that the appellant did not seek to satisfy the learned sentencing judge (Chief Judge Brebner) that the case fell within s. 32(6) in that the appellant's production of cannabis was "solely for his own smoking or consumption". It followed that the applicable maximum penalty was ten years imprisonment and a $50,000 fine. On that basis, the appellant was sentenced to a term of twelve months imprisonment. In addition, he was fined $50 on conviction of each of two independent offences under s. 31 of the Act of possession of cannabis [11] to which he had also pleaded guilty. The effect of the custodial sentence for the offence of producing cannabis was that an earlier suspended sentence of twelve months imprisonment became operative. In the result, the appellant was ordered to serve a total of twenty-four months imprisonment with a non-parole period of eighteen months. An appeal by the appellant against the sentence of twelve months imprisonment was dismissed by the South Australian Court of Criminal Appeal (King C.J. and Mullighan J., Olsson J. dissenting) [12] . The present appeal is from the judgment and order of the Court of Criminal Appeal.

As distinct from possession for the purpose of sale, supply or administration to another person under s. 32(1)(e). 2. Reg. v. Anderson (1992), 60 S.A.S.R. 90.

The central issue between the appellant and the Crown on the sentencing hearing was whether the appellant's production of cannabis had been for commercial purposes. The Crown alleged that the cultivation of the cannabis had been for the commercial purpose of selling at least part of the contemplated produce. The appellant disputed that that was so. The hearing proceeded on the basis that the Crown bore the onus of proving beyond reasonable doubt that the appellant had had such a purpose. The question whether such a purpose had existed was relevant in two distinct, but related, ways on the question of sentence. First, a commercial purpose on the part of the appellant would constitute a circumstance of aggravation to which considerable importance would necessarily be attached in the determination of the appropriate sentence. Second, such a purpose would mean that the appellant's offence had not been a "simple cannabis offence" for the purposes of s. 45a of the Act. The importance of the existence of a commercial purpose as a circumstance of aggravation for sentencing purposes is obvious. The relevance of s. 45a to the sentencing process on a conviction after prosecution needs to be explained.

In the form applicable to this case [13] , s. 45a relevantly provided:

(1) A prosecution for a simple cannabis offence shall not be commenced except by -

(b) a person authorized in writing by the Attorney-General to commence the prosecution.

(2) Subject to this section, if a person is alleged to have committed a simple cannabis offence, then before a prosecution is commenced, an expiation notice must be given to the alleged offender stating that the offence may be expiated by payment to the Commissioner of Police of the prescribed expiation fee before the expiration of 60 days from the date of the notice.

(b) may be given personally or by post addressed to the alleged offender's last known place of residence.

(4) Where the offence is expiated in accordance with the notice, the alleged offender shall not be prosecuted for that offence.

(5) The payment of an expiation fee shall not be regarded as an admission of guilt but any substance, equipment or object seized under this Act or any other Act in connection with the alleged offence that would have been liable to forfeiture in the event of a conviction shall, on payment of the expiation fee, be forfeited to the Crown.

(6) The expiation fee fixed in relation to an offence may vary according to the nature of the offence, the amount of cannabis or cannabis resin involved in the commission of the offence, or any other factor.

(7) Non-compliance with subsection (2) does not invalidate a prosecution.

(d) an offence arising out of the cultivation of cannabis plants, not being an offence involving cultivation of the plants for commercial purposes.

The relevant sections of the Act have been amended since the date of the offence (between 1 October 1990 and 4 January 1991): see Controlled Substances Act Amendment Act (No. 2) 1990 Cth; Statutes Repeal and Amendment (Courts) Act 1991 Cth; Controlled Substances (Classification of Offences) Amendment Act 1992 Cth.

It is common ground that the appellant's offence was one "arising out of the cultivation of cannabis plants". If that cultivation was not "for commercial purposes", the offence would have been of the kind described in par. (d) of the s. 45a(8) definition of a simple cannabis offence.

As s. 45a(7) makes clear, a failure by the authorities to follow the expiation procedure does not "invalidate" a prosecution of a "simple cannabis offence". Nonetheless, the fact - if it were the fact - that the appellant's offence was of the kind for which the s. 45a expiation procedure, involving a prescribed pecuniary penalty [14] , had been designed would be of central importance in the determination of the appropriate sentence for that offence after prosecution and conviction. Indeed, in Offord v. The Queen [15] and Reg. v. Mitropolous [16] , the South Australian Court of Criminal Appeal held that, in a case of a "simple cannabis offence" where the expiation procedure had not been followed by the authorities, the proper exercise of the sentencing discretion required the imposition of a pecuniary penalty equal to that which would have been applicable if an expiation notice had been given. As King C.J. said in the Court of Criminal Appeal in the present case [17] :

Three situations can be envisaged in which a prosecution under ss. 31 and 32 may occur:

Where the facts do not fall within the definition of simple cannabis offence in s. 45a.

Where the facts do so fall, but an expiation notice has not been complied with.

Where the facts do so fall, but there has been an omission to give the notice either because the facts were not correctly apprehended, or for some other reason such as inadvertence.

In all three situations, conviction attracts, as a matter of law, the penalties prescribed in ss. 31 and 32. If the offence is a contravention of s. 32, the maximum penalty is reduced to $500 if the offender discharges the onus of proving that he or she "cultivated the plants solely for his or her own smoking".

In all three situations, the usual discretion exists as to the penalty to be imposed within the prescribed maxima. In the third situation, there is the special factor that, if the authorities had discharged their legal obligation in the light of the now known facts, an expiation notice would have been given and the offender would have had the opportunity of expiating the offence by suffering a lesser penalty than that prescribed in ss. 31 and 32. The Full Court in the two cases referred to above, held that in that situation, the proper exercise of the discretion would be to impose the same penalty as if the obligation to give the expiation notice had been complied with. If there is a dispute as to facts relevant to the question whether the circumstances come within the definition of "simple cannabis offence" so as to found the exercise of the discretion in accordance with Offord and Mitropolous, that dispute must be resolved by oral evidence in the usual way.

$150 in a case of cultivation: see the Controlled Substances (Expiation of Simple Cannabis Offences) Regulations 1987 SA, reg. 5(e). 2. (1991) 56 S.A.S.R. 98. 3. (1991) 161 L.S.J.S. 121. 4. Reg. v. Anderson (1992), 60 S.A.S.R., at pp. 92-93.

Subject to two qualifying comments, we respectfully agree with those remarks of King C.J. The first comment is that his Honour's reference to the situation where "the authorities" had not "discharged their legal obligations in the light of the now known facts" should not be understood as suggesting that, in every case where the facts, as ultimately found, fall within the definition of a "simple cannabis offence", the authorities have been in breach of some "legal obligation" if they have instituted court proceedings without first following the expiation procedure under s. 45a. That procedure is applicable only where the offence " alleged " is a "simple cannabis offence" [18] . There will inevitably be cases in which, notwithstanding that an offence is ultimately found to have been a "simple cannabis offence", the proper discharge of their duties by the prosecution authorities justified, or even required, the institution and maintenance of a prosecution on the basis that the "alleged" offence did not fall within the s. 45a definition. In such cases, there is no question of there having been a breach of any obligation owed to the offender. Indeed, there could obviously be cases where the offender's own concealment or misrepresentation of relevant facts had itself given rise to a genuine belief, on the part of the prosecution authorities, that the alleged offence was not a "simple cannabis offence".

The second comment which should be made in relation to the above remarks of King C.J. is that, while the approach designated by his Honour would ordinarily be the appropriate one for a sentencing court in a case where the expiation procedure has not been followed but the facts (as ultimately found) disclose that the offence was a "simple cannabis offence", it must be borne in mind that, as his Honour stressed, the maximum penalty remains that prescribed by s. 32. It is only as a matter of a proper exercise of the sentencing discretion that, in such a case, the appropriate sentence falls to be determined by reference to the "expiation fee" which would have been applicable if the s. 45a expiation procedure had been followed. While it will always be necessary to take into account what would have been the applicable expiation fee, it is conceivable that exceptional circumstances could arise in which a proper exercise of sentencing discretion in such a case permitted the imposition of a harsher penalty. It is, however, unnecessary to pursue that question for the purposes of the present case since it is common ground that, if the appellant's offence was a "simple cannabis offence", a proper exercise of the sentencing discretion would have required observance of the ordinary approach with the result that the appropriate penalty would have been a fine of $150.

The evidence which the Crown led before the sentencing judge in relation to purpose was circumstantial. In all, there had been a total of sixty-six plants grown, either in pots or in the ground, in the yard of the residential property which the appellant occupied with two other persons. The manner of cultivation was not commercial, watering being apparently done with a bucket. The appellant had appeared to co-operate with the police. He had shown them the illicit plants and admitted that he had grown them. He had said that he had grown them to provide himself with sufficient material for the next year's smoking, that he smoked cannabis with a pipe and that he smoked it every day. Smoking equipment was found in the house. The evidence led by the Crown related mainly to the quantities of cannabis which would have become available to be harvested if the appellant had culled most of the male plants (as, apparently, a knowledgeable commercial producer would be likely to do) and successfully grown all the female plants to maturity.

In the context of the common acceptance of the proposition that the onus rested upon the Crown to prove commercial purpose beyond reasonable doubt, the appellant refrained from giving sworn evidence about his purpose. He relied on police evidence of his initial statement to the effect that he had grown the cannabis for his own smoking. The sentencing judge accepted that the critical issue was whether the Crown had proved beyond reasonable doubt that the cannabis was being produced by the appellant for commercial purposes and not, as the appellant apparently maintained, for his own use and some social (non-commercial) supply to his friends. In the absence of any sworn evidence from the appellant, his Honour found that he was satisfied beyond reasonable doubt that the appellant's cultivation of cannabis had been for commercial purposes in that he had intended to sell at least part of the produce. Necessarily, that finding established the purpose of commercial supply to others as an important circumstance of aggravation to be taken into account in the determination of the appropriate sentence. It also excluded a conclusion that the appellant's offence had been a "simple cannabis offence" for the purposes of s. 45a. It followed that the decisions in Offord and Mitropolous were inapplicable to require the imposition of a pecuniary penalty ascertained by reference to the expiation fee which would have been applicable if the offence had been a "simple cannabis offence" and the expiation procedure had been followed.

Before the Court of Criminal Appeal, the appellant relied on a number of grounds. Only one of them ("ground 2") remains relevant on the appeal to this Court. It asserted that the sentencing judge "[e]rred in concluding (beyond reasonable doubt), that the evidence established that "the defendant's intentions included that of selling at least a portion of his expected harvest" ". The Crown concedes that, in dealing with that ground, it was necessary that the members of the Court of Criminal Appeal themselves consider the material which was before his Honour for the purpose of determining whether it was adequate to sustain his Honour's finding of a commercial purpose [19] .

See, e.g., Morris v. The Queen (1987), 163 C.L.R. 454.

The principal judgment in the Court of Criminal Appeal in relation to ground 2, albeit dissenting in the final outcome, was that of Olsson J. His Honour concluded that "not only was the learned Chief Judge well entitled, on the state of the evidence before him, to come to the ultimate conclusion which he expressed, but, also, when the situation is viewed objectively, that was the only logical conclusion to which he could have come". King C.J. adopted "the reasons given by Olsson J." for holding that the sentencing judge "came to the correct conclusion". The third member of the Court of Criminal Appeal, Mullighan J., also placed substantial reliance upon Olsson J.'s analysis of the evidence in upholding the sentencing judge's finding that the appellant's cultivation of the cannabis had been for commercial purposes.

At the outset of his judgment, Olsson J. expressed the view that it had not been open to the sentencing judge to find that the appellant's offence had been a "simple cannabis offence" for the purposes of s. 45a "unless and until, pursuant to sub-s. (6) of s. 32 of the Act, the appellant demonstrated that the plants had been cultivated solely for his own smoking or consumption" [20] . Olsson J.'s judgment consistently reflects the view that the primary issue on the sentencing hearing had been whether the appellant had satisfied the sentencing judge that his offence came within s. 32(6). On the basis of that view, his Honour concluded that the Crown's acceptance of the onus of proving that the appellant's production of cannabis had been for commercial purposes was the result of "a total misapprehension of the provisions of the Act" [20] . Olsson J. dissented from the decision of the other members of the Court of Criminal Appeal dismissing the appeal because he considered that the sentencing hearing had "inadvertently miscarried, to the ultimate possible prejudice of the appellant" for the reason that "the misapprehension of counsel for both parties as to onus of proof" may well have "constrained" counsel for the appellant to elect not to call the appellant to give evidence [21] . King C.J. noted that the "appellant made no attempt to discharge the onus under s. 32(6)" [22] . Otherwise, the Chief Justice did not himself expressly advert to the question of the onus of proof on the sentencing hearing. Mullighan J. commented "that, in a sense, the Crown accepted an onus of proof which was not cast upon it by law" [23] but concluded that the "incorrect appreciation of where the onus lay in all of the circumstances did not result in unfairness" [24] .

(1992) 60 S.A.S.R., at pp. 94-95. 2. (1992) 60 S.A.S.R., at pp. 94-95. 3. ibid., at pp. 106-107. 4. ibid., at pp. 92-93. 5. ibid., at pp. 108-109. 6. ibid., at p. 109.

It should be apparent from what has been written above that Olsson J. was in error in approaching the appeal to the Court of Criminal Appeal on the basis that the primary issue on the sentencing hearing had been whether the appellant had satisfied the sentencing judge that his production of cannabis had been "solely for his own smoking or consumption" and therefore fell within s. 32(6). As has been said, it is common ground that the appellant had not sought to bring himself within that sub-section. Olsson J. was also in error in thinking that the appellant's failure to bring himself within s. 32(6) necessarily defeated his reliance upon s. 45a. The fact that the appellant did not seek to prove affirmatively that the case fell within s. 32(6) meant that the maximum penalty remained that fixed by s. 32(5)(a)(ii). It did not, however, automatically follow that he should be sentenced either on the basis that his production of cannabis had in fact been for commercial purposes or on the basis that his offence was not a "simple cannabis offence". We turn to explain why that is so.

The offence with which the appellant had been charged, and to which he had pleaded guilty, was that of "producing cannabis". It was not an essential ingredient of that offence that the appellant had produced or was producing any specified quantity of cannabis or that his production of the substance was for commercial purposes. That being so, the appellant's plea of guilty did not involve any admission of such a commercial purpose [25] . Nor did the fact that he did not seek to bring himself within s. 32(6) by establishing the positive proposition that his production of cannabis had been solely for his own use suffice to establish the negative proposition that his production had not been solely for such use [26] . In any event, that negative proposition, even if established, was consistent both with the appellant's cultivation of the cannabis plants not being "for commercial purposes" and with the appellant's offence being a "simple cannabis offence" for the purposes of s. 45a. As has been seen, the real issue before the sentencing judge had been whether the appellant's production had been for the composite purpose of use by himself and some social (or non-commercial) supply to friends. If that had, in fact, been the appellant's purpose, the offence would not have been within s. 32(6) since the appellant's production would not have been " solely " for his own smoking or consumption. Nonetheless, his production would not have been for a commercial purpose and his offence would have been within the s. 45a definition of simple cannabis offence.

See, e.g., Reg. v. Riley , [1896] 1 Q.B. 309, at p. 318; Reg. v. Maitland , [1963] S.A.S.R. 332, at p. 334; Law v. Deed , [1970] S.A.S.R. 374, at p. 377; Reg. v. O'Neill , [1979] 2 N.S.W.L.R. 582, at p. 588. 2. cf. Reg. v. King , [1979] V.R. 399, at p. 405.

In the circumstances of the present case, Chief Judge Brebner's acceptance of the proposition that the Crown bore the onus of proving its allegation that the appellant's production of cannabis had been for commercial purposes reflected a correct understanding of the operation of the provisions of the Act in the context of common law principle. If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance [27] . It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt [28] . If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that that circumstance of aggravation has not been shown to exist [29] . Thus, in the present case where the Crown relied on commercial purpose as a circumstance of aggravation, it was for the Crown to satisfy the sentencing judge beyond reasonable doubt that the appellant had had such a purpose. If the Crown failed to discharge that onus, the appellant was entitled to be sentenced on the basis that his cultivation of cannabis had not been shown to have been for such a purpose.

See Reg. v. Capobianco (1978), 20 A.C.T.R. 29, at pp. 30-31; Reg. v. O'Neill , [1979] 2 N.S.W.L.R., at p. 588. 2. See Law v. Deed, [1970] S.A.S.R., at p. 378. See also, Reg. v. Capobianco (1978), 20 A.C.T.R., at pp. 30-31; Reg. v. O'Neill , [1979] 2 N.S.W.L.R., at p. 590; Reg. v. McGrath and Casey (1983), 5 Crim. App. R. (S.) 460, at p. 463; but cf. Reg. v. Chamberlain , [1983] 2 V.R. 511, at pp. 514-515; Reg. v. Welsh , [1983] 1 Qd R. 592, at pp. 594-595; Reg. v. Boney; Ex parte Attorney-General , [1986] 1 Qd R. 190, at pp. 192-193, 208-209; Reg. v. J. (Jnr) (1989), 41 A. Crim. R. 466, at pp. 469-470, 476-477. 3. See Reg. v. Maitland, [1963] S.A.S.R., at p. 335; Reg. v. Stebhens (1976), 14 S.A.S.R. 240, at pp. 245-246; Reg. v. King, [1979] V.R., at p. 405; Reg. v. O'Neill , [1979] 2 N.S.W.L.R., at p. 588; Reg. v. Martin , [1981] 2 N.S.W.L.R. 640, at p. 643.

Once it is appreciated that the Crown bore the criminal onus of establishing that the appellant's cultivation of cannabis had been for a commercial purpose, it is apparent that the critical question for the Court of Criminal Appeal in relation to the relevant ground of appeal (i.e. ground 2) was whether the material which had been in evidence before his Honour sustained his conclusion that the Crown had discharged that onus. Careful examination reveals that Olsson J. did not address that question in his judgment. Instead, he considered the question whether the evidence before the sentencing judge was adequate to sustain a finding that the appellant had failed to discharge the onus of bringing himself within s. 32(6) of the Act by establishing that his production of cannabis had been solely for his own use. It is true that that part of Olsson J.'s judgment which is expressly directed to ground 2 [30] contains two statements to the effect that, on the evidence before the sentencing judge, the "only logical" conclusion or inference had been that the appellant had had a commercial purpose. Those statements must, however, be read in a context where Olsson J. mistakenly saw the onus of disproving commercial purpose as falling "fairly and squarely" on the appellant. Indeed, the first paragraph of that section of his judgment makes plain that Olsson J.'s error about the onus of proof underlay what his Honour identified as "the problem" with the appellant's argument. That paragraph reads:

Ground 2 of the notice of appeal essentially sought to impeach the ultimate finding of the learned Chief Judge, flowing from his acceptance of the evidence of the witnesses Pearman and Ford, concerning the intent of the appellant in producing the cannabis in question. In essence, the appellant argued that a proper finding on the evidence was that he had produced the cannabis in question solely for his own smoking or consumption. As I have pointed out, the problem is that, if he was to avail himself of the benefit of sub-s. (6) of s. 32 of the Controlled Substances Act and the reduced penalty provided for by it, the onus fell fairly and squarely upon him (and not the Crown) to demonstrate that which he averred on the balance of probabilities. The contents of the remainder of that part of Olsson J.'s judgment confirm that his Honour's rejection of the appellant's argument was based upon his error about the issue before the sentencing judge and the applicable onus of proof. Thus, in the following paragraph, his Honour dismissed the appellant's reliance on Mitropolous on the ground that Mitropolous "did not, in any way, concern the issue of an attempt to discharge an onus arising under sub-s. (6) of s. 32". Subsequently, in upholding the sentencing judge's finding of a commercial purpose, his Honour commented that it "lay within the province of the appellant to persuade him otherwise". 1. Being the last seven paragraphs of the judgment, see Reg. v. Anderson (1992), 60 S.A.S.R., at pp. 105-108.

As has been seen, King C.J. adopted Olsson J.'s reasons as the basis for upholding the sentencing judge's finding of a commercial purpose. The Chief Justice's judgment contained an analysis of the relationship between the relevant sections of the Act which makes plain that his Honour did not share Olsson J.'s misapprehension that the critical issue before the sentencing judge had revolved around s. 32(6). Indeed, as has been seen, he expressly recognized that the appellant "made no attempt to discharge the onus under s. 32(6)", adding that that was "not surprising in view of the quantities involved and the need to prove [under s. 32(6)] that the cannabis was for his "own smoking or consumption" " as distinct from "the non-commercial purpose of sharing with others". King C.J. did not, however, express disagreement with Olsson J.'s statements to the effect that the Crown had assumed an onus of proof which rightly lay upon the appellant. Nor did he qualify or amplify his agreement with "the reasons given by Olsson J." for concluding that the sentencing judge "came to the correct conclusion". Clearly, the situation is one in which it could not confidently be maintained that King C.J.'s decision upholding the sentencing judge's finding of a commercial purpose was unaffected by the error about onus of proof which underlay the reasoning of Olsson J. Moreover, examination of the judgment of Mullighan J. compounds the unsatisfactory nature of the decision of the Court of Criminal Appeal dismissing the appellant's appeal in that it is far from clear that his Honour's affirmation of the sentencing judge's finding of a commercial purpose was not also affected by an erroneous view that the onus of proof in relation to that issue lay upon the appellant. Not only did his Honour place substantial reliance upon Olsson J.'s analysis of the evidence in relation to ground 2. As has been seen, he also commented "that, in a sense, the Crown accepted an onus of proof which was not cast upon it by law". Nowhere in Mullighan J.'s judgment is there anything which makes clear that his Honour was addressing what was the relevant question for the Court of Criminal Appeal, namely, whether the evidence before the sentencing judge sustained the conclusion that the Crown had established commercial purpose beyond reasonable doubt.

It follows that there is much to be said for the view that, on balance, the correct inference to be drawn is that none of the members of the Court of Criminal Appeal addressed the question involved in the appellant's attack upon the sentencing judge's finding of a commercial purpose. However, it is unnecessary to go that far. It suffices for the purposes of the present appeal that the judgments of the members of the Court of Criminal Appeal at least give rise to a very significant doubt about whether a majority of that court did in fact address that question. It is an appellate court's duty, in a judgment dismissing an appeal, to make clear that the court has addressed and decided the critical question involved in the appeal. Indeed, in the present case, the Solicitor-General rightly conceded that, if there was "any real doubt as to whether the appeal was addressed on the correct basis", the appeal should be allowed and the matter remitted to the Court of Criminal Appeal "unless this Court is prepared to dispose of the issue itself". In circumstances where most of the evidence led before the sentencing judge is not before this Court, it is not practicable for this Court itself to determine the question whether the evidence was adequate to sustain his Honour's conclusion that he was satisfied beyond reasonable doubt that the appellant's cultivation of cannabis had been for a commercial purpose. That being so, the matter must be remitted to the Court of Criminal Appeal for the determination of that question in the light of the reasons for judgment of this Court.

There is one further matter which should be mentioned. It is that it was argued on behalf of the Crown that, even though the Crown had borne the onus of establishing commercial purpose as a circumstance of aggravation, the appellant had borne the onus of establishing that his offence had fallen within the s. 45a definition of a simple cannabis offence if he wished to rely on that as a mitigating factor. While that submission has some theoretical appeal, it seems to us, with respect, to be divorced from the practical reality of what was involved in the present case. The theoretical appeal of the submission lies partly in the fact that it is for an offender to raise an alleged circumstance of mitigation on a sentencing hearing [31] , and partly in the fact that, clearly enough, there could be no affirmative finding that the appellant's offence had, in fact, been a "simple cannabis offence" unless the sentencing judge was satisfied, on the balance of probabilities, that that was so. Nonetheless, if the Crown failed to discharge the onus of establishing commercial purpose as a circumstance of aggravation, the appellant was entitled to be sentenced on the basis that there was a reasonable possibility that he had had no such purpose. In the circumstances of the present case, that would have meant that there was a reasonable possibility that the facts were such that the appellant's offence had been no more than a "simple cannabis offence". If that stage had been reached, the ordinary "duty of the [sentencing] Judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused" [32] , would have required that the appellant's sentence be determined on the basis that his offence had been a "simple cannabis offence" for which the s. 45a expiation procedure, involving an expiation fee of $150, would have been appropriate.

See Law v. Deed, [1970] S.A.S.R., at p. 379; Reg. v. Aloia , [1983] W.A.R. 133, at p. 136. 2. cf. Reg. v. Maitland, [1963] S.A.S.R., at p. 335; Law v. Deed, [1970] S.A.S.R., at p. 377; Reg. v. Scanlan (1986), 21 A. Crim. R. 428, at p. 432.

The appeal should be allowed. The judgment and order of the Criminal Court of Appeal of South Australia should be set aside and the matter should be remitted to that court for determination of the appeal in accordance with the reasons for judgment of this Court.

At a glance

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Judgment (70 paragraphs)

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