Citation: McBurney v R [2004] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 17 June 2004
Judges: Grove J, Dowd J, Sperling J
Background
The applicant, a man aged 73 at the time of the offence, pleaded guilty in the District Court to cultivating 250 cannabis plants (less than the commercial quantity) contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985. The plants ranged from seedling height to two metres, with some degree of sophistication in the growing method, including hydroponic propagation.
Christie DCJ sentenced the applicant to four years and three months imprisonment with a non-parole period of nine months. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, among other grounds.
At the time of sentence, the applicant had no prior convictions, was of good character, and suffered from a spinal cord tumour that had been only partially removed. His treating doctor warned that imprisonment would likely be detrimental to his condition. By the time of the appeal, his health had deteriorated further: he required a wheelchair outside his cell, was unable to shower without assistance, could not sit comfortably for any length of time, and had been transported from prison to Sydney multiple times in considerable discomfort for medical treatment.
Legal Issues
- Whether the sentence of four years and three months was manifestly excessive in light of the applicant's age, health, good character, and the extensive mitigating factors present
- Whether the District Court erred by sentencing the applicant by reference to the wrong provision of the Drug Misuse and Trafficking Act 1985, applying the commercial-quantity maximum penalty rather than the lesser maximum applicable to the offence charged
- Whether the District Court erred by making an unsupported finding about the market value of the cannabis crop based on judicial experience rather than evidence
Decision
Sperling J, giving the primary judgment, found that the sentence was manifestly excessive having regard to the applicant's age, serious and deteriorating health, complete absence of prior convictions, good character, strong testimonials from community members, early guilty plea (attracting a 20 per cent discount), negligible risk of reoffending, and the absence of any aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. Sperling J also noted the substantially greater hardship that incarceration imposed on the applicant compared with the ordinary prisoner.
Grove J, with whom Dowd J agreed on this point, declined to characterise the original sentence as manifestly excessive. However, Grove J identified two independent errors in the District Court's sentencing process that justified the Court of Criminal Appeal's intervention. First, Christie DCJ had referred to the wrong subsection of the Act, treating the maximum penalty as fifteen years (the commercial quantity provision) rather than ten years (the less-than-commercial quantity provision actually charged). His Honour had treated the error as immaterial because he did not intend to impose anything near either maximum, but Grove J held that a sentencing judge must advert to the correct prescribed maximum as a matter of proper approach.
The second error was that Christie DCJ had estimated the value of the cannabis crop at "several hundred thousand dollars on the open market," drawing on his own experience without any evidentiary basis. Grove J held that the value of an illicit drug in an undefined market is not a matter of judicial notice, and this finding therefore reflected error.
All three judges agreed on the re-sentence. Taking into account the further evidence of the applicant's deteriorated health tendered on the appeal, the Court imposed a sentence of three years imprisonment with a non-parole period of six months and ten days, effective from 9 December 2003. Because the non-parole period expired on 18 June 2004 (the day after judgment), the Court ordered the applicant's immediate release to parole.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed
- Sentence imposed in the District Court quashed
- Applicant re-sentenced to three years imprisonment commencing 9 December 2003 and expiring 8 December 2006, with a non-parole period of six months and ten days commencing 9 December 2003 and expiring 18 June 2004
- Applicant ordered to be released to parole on 18 June 2004
Key Takeaways
- A sentencing court must advert to the correct statutory maximum penalty, even where it does not intend to impose a sentence anywhere near that maximum. Failure to do so constitutes an error of approach sufficient to enliven an appellate court's power to intervene and re-sentence.
- The value of an illicit drug in an unspecified "open market" is not a matter of judicial notice. A finding as to drug value requires an evidentiary foundation, and a judge's personal experience does not supply one.
- Substantially greater hardship caused by imprisonment, arising from serious physical illness and age, is a mitigating consideration capable of significant weight in sentencing. New evidence of deteriorated health tendered on a re-sentencing appeal is admissible and may increase that weight.
- The Court of Criminal Appeal confirmed that the presence of multiple statutory mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, combined with the complete absence of aggravating factors, bears heavily on the appropriate sentence.
- In this case, the judges divided on whether the original sentence was manifestly excessive, but agreed that two identifiable errors in the District Court's reasoning were sufficient to justify intervention independently of that question.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Drug Misuse and Trafficking Act 1985 (NSW), s 23 (including sub-sections 23(1)(a) and 23(2)(a))
Cases cited: None identified in the judgment text.