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Court of Criminal Appeal 3 October 2003

R v McBride

[2003] NSWCCA 282

Also reported as 143 A Crim R 246
Drugs
SUBMISSION PLEA SHOULD BE REJECTED.

Citation: R v McBride [2003] NSWCCA 282
Court: New South Wales Court of Criminal Appeal
Date: 3 October 2003
Judge(s): Foster AJA, Grove J, Dowd J

Background

The respondent pleaded guilty in the District Court to knowingly taking part in the manufacture of pseudoephedrine, a prohibited drug, contrary to the Drug Misuse and Trafficking Act 1985. The plea was entered on the basis of agreed facts: the respondent had allowed an acquaintance to use a shed on his property for about a week, unaware until midway through that week that the person was manufacturing pseudoephedrine. Two further charges of deemed supply of pseudoephedrine and cannabis were taken into account on a Form 1.

At the sentencing hearing, the respondent gave evidence that he did not know manufacturing pseudoephedrine was illegal. The sentencing judge accepted this was a genuine belief and treated it as a mitigating factor going to the respondent's level of criminality, without treating it as a complete defence.

Moore DCJ sentenced the respondent to 500 hours of community service, taking into account 23 days of pre-sentence custody. The Crown appealed on the grounds that the sentence was manifestly inadequate, and also challenged the sentencing judge's factual findings and the acceptance of the guilty plea.

  • Whether the sentencing judge erred in finding as a matter of fact that the respondent was unaware manufacturing pseudoephedrine was illegal
  • Whether the sentencing judge erred in law by accepting the guilty plea and taking the Form 1 offences into account, given that finding
  • Whether the sentence of 500 hours community service was manifestly inadequate

Decision

The Court of Criminal Appeal found it unnecessary to resolve definitively whether the sentencing judge's factual finding was against the weight of the evidence, or whether there was a legal error in accepting the plea. The Court concluded that, even proceeding on the most favourable basis for the respondent, the sentence was manifestly inadequate and required intervention on that ground alone.

On the question of ignorance of the law, the Court accepted that a genuine belief in the legality of conduct can properly reduce the assessed level of criminality at the sentencing stage. However, this principle does not, of itself, justify foregoing a custodial sentence entirely. The Court found that a sentence of only community service failed adequately to denounce the offending, particularly given the substantial quantities of prohibited substances involved and the Form 1 matters, each of which carried their own appropriate penalty.

In resentencing, the Court applied the principle of double jeopardy, meaning the sentence it imposed was more restrained than what it would have imposed at first instance. The Court gave credit for the 23 days of pre-sentence custody, the approximately 80 hours of community service already completed, and the reporting conditions the respondent had observed while on bail.

Orders Made

  • The sentence imposed by Moore DCJ was quashed.
  • In lieu thereof, a sentence of one year and eight months periodic detention was imposed, with a non-parole period of one year and three months, taking into account the Form 1 matters.

Key Takeaways

  • A genuine and honest belief that conduct was lawful can properly reduce a defendant's assessed level of criminality at sentence, but does not automatically warrant a non-custodial outcome, particularly where substantial drug quantities are involved.
  • The Court of Criminal Appeal confirmed that, where a Crown sentence appeal succeeds on manifest inadequacy, the appellate court may resentence while exercising restraint consistent with double jeopardy principles, resulting in a lesser sentence than would have been imposed at first instance.
  • Where Form 1 matters are taken into account alongside the principal offence, each carries appropriate weight in the sentencing calculus and cannot be treated as absorbed without consequence.
  • Sufficient grounds to intervene on manifest inadequacy can exist even where the appellate court declines to resolve contested questions about the acceptance of a guilty plea or underlying findings of fact.
  • Credit for pre-sentence custody, community service hours already served, and bail reporting conditions can each reduce the period of periodic detention on resentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 25(1), 25(2), 29

Cases:
- Proudman v Dayman (1941) 67 CLR 536