R v McBurney [2004] NSWCCA 203

New South Wales Court of Criminal Appeal

CITATION : R v McBurney [2004] NSWCCA 203 HEARING DATE(S) : 17 June 2004 JUDGMENT DATE : 17 June 2004

JUDGMENT OF : Grove J at 1, 29, 38; Dowd J at 37; Sperling J at 2 DECISION : Leave to appeal against sentence is granted. The appeal is allowed, the sentence imposed in the District Court is quashed and in lieu thereof the applicant is sentenced to imprisonment for three years commencing from 9 October 2003 and expiring on 8 December 2006, with a non-parole period of six months and ten days commencing on 9 December 2003 and expiring on 18 June 2004.

CATCHWORDS : Criminal Law - sentencing - no question of principle LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s21A, s44 Drug Misuse & Trafficking Act 1985, s23 PARTIES : Regina John James McBurney FILE NUMBER(S) : CCA 60208/04 COUNSEL : Mr G Rowling for the Crown Mr H Dhanji for the Applicant SOLICITORS : Director of Public Prosecutions Legal Aid Commission for the Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/1059 FILE NUMBER(S) : LOWER COURT Christie DCJ JUDICIAL OFFICER :

- 7 - IN THE COURT OF CRIMINAL APPEAL 60208/04

Grove J Dowd J Sperling J

Thursday, 17 June 2004 Regina v John James McBurney Judgment 1 Grove J: The court is in a position to give judgment and I will ask Sperling J to give the first judgment. 2 Sperling J: The applicant seeks leave to appeal against a sentence of imprisonment of four years and three months with a non-parole period of nine months imposed by Christie DCJ following a plea of guilty to the offence of cultivating a prohibited plant (cannabis) less than the commercial quantity, contrary to s23(1)(a) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is imprisonment for ten years and a fine of 2000 penalty units. 3 It was common ground that the applicant should be sentenced on the basis of having cultivated 250 plants. The evidence was that the plants ranged from seedling height to two metres. There was a degree of sophistication, with seedlings being raised hydroponically and then planted out. 4 The grounds of appeal include that, in all the circumstances of the case, the sentence was manifestly excessive. 5 The applicant was born on 8 March 1930. He was almost seventy-three at the time of the offence, 7 February 2003, and was seventy-three years of age at the time of sentence, 12 December 2003. 6 On the evidence before his Honour, the applicant was a person otherwise of good character, a married man with a family, and having no prior convictions. Testimonials as to good character were provided by persons of standing in the community, i.e. a medical practitioner, a rural sales agent and a solicitor. 7 The applicant was in poor health. In a certificate dated 20 May 2003 Dr S Bec, the applicant's general practitioner, said: Unfortunately John has a low grade tumour growing on his spinal cord, which was incompletely removed by a neurosurgeon in Newcastle well over one year ago. He has residual paralysis of his legs, from the tumour and the operation and is getting worse. There may come a time sooner rather than later when he will need a wheelchair for mobilisation rather than the crutches he uses now. I fear prison would be detrimental to his spinal condition, if this appear the final outcome.