Anderson v R [1993] HCA 59; (1993) 177 CLR 520; (1993) 67 A Crim R 582 (20 October 1993)

HIGH COURT OF AUSTRALIA

ANDERSON v. THE QUEEN [1993] HCA 59; (1993) 177 CLR 520
F.C. 93/047
Number of pages - 18
[1993] HCA 59; (1993) 67 A Crim R 582

Criminal Law

HIGH COURT OF AUSTRALIA
BRENNAN(1), DEANE(2), DAWSON(1), TOOHEY(2), AND GAUDRON(2) JJ

CATCHWORDS

Criminal Law (SA) - Sentencing - Controlled substances - Knowing manufacture or production - Cannabis - Substantial maximum penalty - Simple cannabis offence when no commercial purpose involved in production - Expiation notice to be given before prosecution - Prosecution precluded by payment of nominal expiation fee - Prosecution not invalidated by failure to give notice - Simple cannabis offence where notice not given - Appropriate sentence - Controlled Substances Act 1984 (SA), ss. 32(1)(a), (5)(a), 45a(2).

HEARING

1993, CANBERRA, June 15, October 20. 20:10:1993

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.

DECISION

BRENNAN AND DAWSON JJ 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 (S.A.) ("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 12 months imprisonment which
Chief Judge Brebner passed upon the appellant on the first count.

2. Section 32 of the Act provides, inter alia -
" (1) A person shall not knowingly -
(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".
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).

3. The appellant's appeal to the Court of Criminal Appeal against his sentence was dismissed by a majority (King CJ 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) (1991) 56 SASR 98.) and Reg. v.
Mitropolous ((2) (1991) 161 LSJS 121.). 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)
The paragraph was amended but the amendment came into force after the
offence was committed.) 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).

4. 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."

5. In Offord v. The Queen, King CJ ((4) (1991) 56 SASR, at p.101.) agreed with a submission -

"that when an otherwise invalid prosecution was saved
by subs (7), the offender should not receive greater
punishment than if subs (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 subs (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) (1991) 161 LSJS, at p.123.):

" 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 section 45a."

6. 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 section 45a of the Controlled Substances Act
1984."

7. 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.

8. In the Full Court, King CJ correctly analysed 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) [1985] HCA 72; (1985) 159 CLR 264.);
Reg. v. Meaton ((7) [1986] HCA 27; (1986) 160 CLR 359.); Reg. v. Hietanen
((8) (1989) 51 SASR 510.) ". 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 CJ as to the
relationship of ss.31, 32 and 45a of the Act.

9. 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) Law v. Deed (1970)
SASR 374, at pp.377-379; Reg. v. Stehbens (1976) 14 SASR 240, at
pp.245-246.). 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) The approach in
South Australia has been followed in New South Wales (Reg. v. Martin
(1981) 2 NSWLR 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 ACTR 29, at pp.30-31); and perhaps in Western
Australia (Reg. v. Aloia (1983) WAR 133, per Pidgeon J at p.138,
but cf. per Burt CJ at p.136; Scanlan (1986) 21 A Crim Rep 428, per
Smith J at p.432, per Rowland J at p.434). However, a
different view has been taken in Victoria (Reg. v. Chamberlain
(1983) 2 VR 511, at pp.513-515; Halden (1983) 9 A Crim Rep 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; Boney (1986)
25 A Crim Rep 37, at pp.39-40, 53; J (Jnr) (1989) 41 A Crim Rep 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) 24
ALR 473, at p.483.). 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 subsection (6) of section 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 subsection (8)(d) of
section 45a, ie 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 CJ adopted when he concluded,
"(f)or the reasons given by Olsson J, ... that the learned judge came
to the correct conclusion".

10. 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 CJ 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 CJ, 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).

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

12. 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.

13. We would dismiss the appeal.

DEANE, TOOHEY AND GAUDRON JJ 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 (S.A.) ("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".

2. 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) As distinct from possession for the purpose of sale,
supply or administration to another person under s.32(1)(e).) 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 CJ and Mullighan J; Olsson J dissenting) ((12)
Anderson (1992) 64 A Crim R 312.). The present appeal is from the
judgment and order of the Court of Criminal Appeal.

3. 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.

4. In the form applicable to this case ((13) 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; Statutes Repeal and Amendment (Courts) Act
1991; Controlled Substances (Classification of Offences) Amendment Act
1992.), s.45a relevantly provided:

"(1) A prosecution for a simple cannabis offence shall
not be commenced except by -
(a) a member of the police force;
or
(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.
(3) An expiation notice -
(a) must be in the prescribed form;
and
(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.
(8) For the purposes of this section -
...
'simple cannabis offence' means -
...
(d) an offence arising out of the cultivation
of cannabis plants, not being an offence
involving cultivation of the plants for
commercial purposes."

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".

5. 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) $150 in a case of cultivation: see the Controlled
Substances (Expiation of Simple Cannabis Offences) Regulations 1987
(S.A.), Reg.5(e).), 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) (1991) 56 SASR 98.) and Reg. v. Mitropolous ((16) (1991) 161
LSJS 121.), 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 CJ said in the Court of Criminal
Appeal in the present case ((17) Anderson (1992) 64 A Crim R, at
pp.313-314.):

"Three situations can be envisaged in which a
prosecution under ss31 and 32 may occur:
1. Where the facts do not fall within the definition of
'simple cannabis offence' in s45a.
2. Where the facts do so fall, but an expiation notice has
not been complied with.
3. 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 ss31 and 32. If
the offence is a contravention of s32, 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 ss31 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 Mitropoulous, that dispute must
be resolved by oral evidence in the usual way."

6. Subject to two qualifying comments, we respectfully agree with those remarks of King CJ 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) See s.45a(2) (above).). 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".

7. The second comment which should be made in relation to the above remarks of King CJ 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.

8. 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.

9. 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.

10. 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] HCA 50; (1987) 163 CLR 454.).

11. 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 CJ 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.

12. 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 subs(6) of s32 of the
Act, the appellant demonstrated that the plants had been cultivated
solely for his own smoking or consumption" ((20) Anderson (1992) 64
A Crim R, at p.316.). 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" ((21) ibid.). 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 ((22) ibid., at p.328.). King CJ
noted that the "appellant made no attempt to discharge the onus under
s32(6)" ((23) ibid., at p.314.). 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"
((24) ibid., at p.330.) but concluded that the "incorrect appreciation of where the onus lay in all of the circumstances did not result in
unfairness" ((25) ibid., at p.331.).

13. 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.

14. 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 ((26) See, e.g., Reg. v. Riley (1896) 1
QB 309, at p.318; Reg. v. Maitland (1963) SASR 332, at p.334; Law
v. Deed (1970) SASR 374, at p.377; Reg. v. O'Neill (1979) 2
NSWLR 582, at p.588.). 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 ((27) cf. Reg. v. King
[1979] VicRp 43; (1979) VR 399, at p.405.). 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".

15. 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 ((28) See Reg. v. Capobianco (1978) 20 ACTR 29, at
pp.30-31; Reg. v. O'Neill (1979) 2 NSWLR, at p.588.). 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 ((29) See Law v.
Deed (1970) SASR, at p.378. See, also, Reg. v. Capobianco (1978)
20 ACTR, at pp.30-31; Reg. v. O'Neill (1979) 2 NSWLR, 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 VR 511, at pp.514-515;
Reg. v. Welsh (1983) 1 Qd R. 592, at pp.594-595; Boney (1986) 25
A Crim R 37, at pp.39-40, 53; J (Jnr) (1989) 41 A Crim R 466, at
pp.469-470, 476-477.). 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 ((30) See Reg. v. Maitland (1963)
SASR, at p.335; Reg. v. Stebhens (1976) 14 SASR 240, at
pp.245-246; Reg. v. King (1979) VR, at p.405; Reg. v. O'Neill (1979)
2 NSWLR, at p.588; Reg. v. Martin (1981) 2 NSWLR 640, at
p.643.). 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.

16. 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 ((31) Being the last seven paragraphs of the
judgment, see: Anderson (1992) 64 A Crim R, at pp.327-329.) 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 subs(6) of s32 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 subs(6) of s32". 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".

17. As has been seen, King CJ 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 s32(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 CJ 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 CJ'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.

18. 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.

19. 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 me, 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 ((32) See Law v. Deed (1970) SASR, at p.379;
Reg. v. Aloia (1983) WAR 133, at p.136.), 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" ((33) cf. Reg. v. Maitland (1963) SASR, at p.335; Law v.
Deed (1970) SASR, at p.377; Scanlan (1986) 21 A Crim R 428, at
p.432.), 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.

20. 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.