R v McBride [2003] NSWCCA 282

Reported Decision : 143 A Crim R 246

New South Wales Court of Criminal Appeal

CITATION : R v McBride [2003] NSWCCA 282 HEARING DATE(S) : 20/08/03 JUDGMENT DATE : 3 October 2003

JUDGMENT OF : Foster AJA at 1; Grove J at 2; Dowd J at 3 DECISION : Sentence quashed; sentence imposed of 1year 8 months periodic detention with non-parole period of 1year 3 months.

CATCHWORDS : Crown appeal against inadequacy of sentence - ignorance that manufacture of a drug is prohibited or illegal - submission plea should be rejected. LEGISLATION CITED : Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 CASES CITED : Proudman v Dayman (1941) 67 CLR 536 PARTIES : Regina (Appellant) Andrew James McBride (Respondent) FILE NUMBER(S) : CCA 60151/03 COUNSEL : DML Woodburne (Appellant) SOLICITORS : SE O'Connor (Crown) S Hodges (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3140 FILE NUMBER(S) : LOWER COURT Moore DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60151/03

FOSTER AJA GROVE J DOWD J

Friday 3 October 2003 REGINA v ANDREW JAMES McBRIDE Judgment 1 FOSTER AJA: I agree with Dowd J. 2 GROVE J: I agree with Dowd J. 3 DOWD J: This is an appeal under s5D of the Criminal Appeal Act 1912 ("the Appeal Act") in respect of a sentence imposed on the respondent, Andrew James McBride, by Moore DCJ on 31 March 2003. 4 The respondent entered a plea of guilty to and was convicted and sentenced for an offence of Knowingly Take Part in the Manufacture of a Prohibited Drug, namely pseudoephedrine, on 19 December 2000 contrary to s24 (1) of the Drug Misuse and Trafficking Act 1985 ("the Drug Act") for which the maximum penalty is two thousand penalty units or imprisonment for fifteen years or both. 5 The sentence also took into account two charges on a Form 1, being a charge of Deemed Supply of Prohibited Drug, namely pseudoephedrine, on that same date contrary to s25 (1) and s29 of the Drug Act which carries a similar penalty, and a second charge of Deemed Supply Prohibited Drug, namely cannabis leaf, contrary to s25 (2) and s29 of the Drug Act which carries a maximum penalty of two thousand penalty units and/or imprisonment for ten years. 6 The sentence imposed was five hundred hours of community service. The respondent had been in custody for twenty three days before bail was granted which the learned sentencing judge took into account on sentence. At the time of lodging of the Crown appeal the respondent had served some eighty hours of community service. 7 The grounds of the appeal were: i. That there was error in the exercise of the sentencing judge's discretion in a finding of fact that was against the weight of the evidence; ii. That even if open to the sentencing judge to make the finding of fact, having made that fact his Honour made an error of law in accepting the plea of guilty to the charge of Knowingly Take Part in the Manufacture of Pseudoephedrine and taking into the account the offence of Supply Prohibited Drug; and iii. That there was error in the exercise of the sentencing discretion by reason of the imposition of a manifestly inadequate sentence. 8 The respondent entered a plea of not guilty to an indictment containing three charges as at 26 April 2002 but a fresh indictment including the charges set out above, was presented on 5 August 2002. This plea was taken as an early plea and an undertaking was given by the Crown that the respondent would not be asked to name the person who used the shed on his property for manufacturing purposes due to the respondent's fear of reprisal.