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. In a later certificate dated 8 December 2003 Dr Bec said: His back problem is troubling him and hence I have referred him to hydrotherapy. 8 His Honour made the following findings: I would have no hesitation in finding that he is not insignificantly debilitated, and that his period within the custodial system will be significantly harder for him to deal with than would be the case of a younger man in much better health. 9 Later in the remarks on sentence his Honour said: I am of the firm view that every day the prisoner spends in the custodial system will be difficult for him to bear in his present condition, and I recognise that completely. The early plea of guilty qualified the applicant for a discount in the order of 20 per cent and stood as some evidence of contrition. 10 The applicant was unlikely to re-offend. His Honour made the following finding: Having regard to his age, and the lesson he has undoubtedly learnt over these proceedings, the prospects of him re-offending would be virtually zero; indeed, I would assess them as being zero. So that his rehabilitation would be beyond doubt, one would think. 11 None of the aggravating factors referred to in s21A(2) of the Crimes (Sentencing Procedure) Act 1999 were evident in this case. Of the mitigating factors referred to in s21A(3) the following were evident: (a) The injury, emotional, harm, loss or damage caused by the offence was not substantial, ... (e) The offender does not have any record (or any significant record) of previous convictions, (f) The offender was a person of good character, (g) The offender is unlikely to re-offend, (h) The offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) The offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner [to be inferred from the plea of guilty] , ... (k) A plea of guilty by the offender [as provided by s22] 12 His Honour found special circumstances, including the applicant's age, that he had not previously been in custody, the excellent prospects of rehabilitation and the applicant's poor state of health. 13 The offence was a serious one and such as to require a full time custodial sentence. However, having regard to the subjective matters which I reviewed, the sentence was, in my opinion manifestly excessive. 14 In these circumstances, it is unnecessary to consider other grounds of appeal. 15 I would allow the appeal and re-sentence the applicant. 16 An affidavit by the applicant sworn on 16 June 2004 has been tendered as evidence on re-sentencing. 17 The applicant's health has deteriorated. 18 In December 2004 he developed urinary retention complicated by infection. He has been transported from Port Macquarie to Sydney for medical treatment for this and other medical problems, with considerable discomfort caused by travelling in a prison van. 19 The applicant's mobility was already significantly affected at the time of sentence, particularly in relation to the right leg. He has since been losing mobility in the left leg. He requires two sticks to walk within the prison wing and use of a wheelchair when he is leaving the wing. 20 This condition has been investigated by CT scan and, more recently on 21 May 2004, by MRI scan. Further investigation has been recommended but has not yet been arranged. 21 There have been times when the applicant has been unable to shower for lack of a plastic chair. He is unable to stand unsupported. 22 The applicant cannot sit without discomfort for any length of time. He has to eat reclining on his bed for that reason. 23 In prison he does not have access to hydrotherapy and massage, which were recommended by his local doctor, and he cannot obtain the liniments which he previously used and which provided him with more relief than the preparation provided in the prison. 24 Being unable to work he spends most of his time in his cell. 25 This is further evidence of the greater hardship of incarceration caused to the applicant relative to the ordinary run of prisoners. The weight to be given to this mitigating consideration is increased by the further evidence. 26 Section 44(1) requires that the Court first set a non-parole period for the sentence. I would set that at six months and ten days and would impose an overall sentence of three years. The sentence would commence on 9 December 2003, as did the sentence under appeal. 27 The sentence being for three years, there would be an absolute entitlement to be discharged on expiration of the non-parole period which will, under what I recommend, expire on 18 June 2004. Accordingly, it will be appropriate to make an order that the applicant be released from custody tomorrow. 28 I propose the following orders: 1. Grant leave to appeal against sentence; 2. Appeal allowed; 3. Sentence quashed and in lieu thereof re-sentence the applicant to term of imprisonment of three years commencing on 9 December 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; 4. Order that the applicant be released to parole on 18 June 2004. 29 Grove J: I agree with the orders proposed. However, I regret that I cannot agree with the conclusion that the sentence imposed in the District Court was manifestly excessive. 30 Nevertheless, I am of the opinion that the power of this Court to intervene and to proceed to re-sentence is attracted as a result of at least two errors in his Honour's approach to the assessment of sentence. It is sufficient to refer to those only briefly. 31 The first is that the committal documents which brought the applicant before the District Court made reference to an offence under s23(2)(a) of the Drug Misuse and Trafficking Act, whereas it was always intended he be dealt with under s 23(1)(a) of that statute. The difference is between the commercial, and the less than commercial quantity of cultivated cannabis. The maximum penalties are discriminated between fifteen years and ten years. 32 The approach which his Honour revealed in his remarks on sentence was that, as he did not intend to impose a sentence approaching the lower maximum or anything like it, he regarded the matter as irrelevant. 33 That, in my view, demonstrated an error of approach. A proper approach requires an adversion by the sentencing judge to the maximum penalty as Parliament has legislated. That is not to say, of course, that it needs to be imposed but at least, when sentencing, a judge should advert to the correct prescribed maximum. 34 The second matter is also revealed in the remarks on sentence. There was no evidence before his Honour as to the value of the plants involved. He said that relying on his experience he "had not the faintest hesitation in saying that this crop was worth several hundred thousand dollars on the open market." 35 I am unaware of what precisely his Honour was referring to by the open market. One could guess but it is undefined. The value of an illicit drug in an undefined market is not a matter of judicial notice. His Honour's finding bespeaks error. 36 For those two reasons, as I have said, the power of this Court to intervene should be invoked. Once we turn to the matter of re-sentence I would adopt the findings and the matters articulated by Sperling J and I agree with the orders he proposes. 37 Dowd J: I also agree with the proposed orders and the reasons given by Sperling J, except in relation to the issue of manifest severity. In that respect I agree with the remarks of the presiding judge. 38 Grove J: The orders of the court therefore will be that 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. 39 The Court orders that the applicant be released to parole on 18 June 2004. 40 I request the officers to communicate with the prison authorities to that effect. He should be released to parole tomorrow. -oOo- Last Modified: 06/28/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.