R v Burgoyne

[2005] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:	R v Burgoyne [2005] QCA 28
PARTIES:	R v BURGOYNE, Steven Jeffery (applicant)
FILE NO/S:	CA No 398 of 2004 DC No 11 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING  COURT:	District Court at Bundaberg
DELIVERED EX
TEMPORE ON:	14 February 2005
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2005
JUDGES:	McMurdo P, Mackenzie J and Chesterman J Separate reasons for judgment for each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for extension of time struck out 2. Application to adduce further evidence refused 3. Appeal against conviction dismissed 4. Application for leave to appeal against sentence

refused

CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT – where application for extension of time within which to appeal filed – where notice of appeal against conviction and application for leave to appeal against sentence was filed within time – whether application for extension of time was necessary – whether application for extension of time should be struck out
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where application to adduce further evidence on appeal – where evidence to be adduced included statement of applicant's belief supported by magazine articles as to the medicinal and health benefits of cannabis sativa – whether evidence raised a significant, real or reasonable possibility that a properly instructed jury would acquit – whether application to adduce further evidence should be allowed
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant pleaded guilty to charges of producing and possessing cannabis sativa with circumstances of aggravation – where appellant claims the law is based on false science and wrongly classifies cannabis sativa as a narcotic – where appellant claims the law contradicts the Bible – whether pleas entered were informed and free – whether pleas should be set aside
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – OTHER OFFENCES – where applicant pleaded guilty to charges of producing and possessing cannabis sativa with circumstances of aggravation – where sentenced to 18 months imprisonment suspended forthwith with an operational period of three years – where applicant claims that the law is based on false science and wrongly classifies cannabis sativa as a narcotic – where applicant claims the law contradicts the Bible – where some criminal history for like offences – whether sentence manifestly excessive
Drugs Misuse Act 1986 (Qld)
R v McKay [1997] QCA 97; CA No 574 of 1996, 17 April 1997, considered Peter Till v Anthony Johns (Sergeant of Police) [2004] QCA 451; CA No 209 of 2004, 26 November 2004, applied R v Cunliffe [2004] QCA 293; CA Nos 115 and 116 of 2004, 13 August 2004, applied
COUNSEL:	The applicant appeared on his own behalf R G Martin SC for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

indictment in the Supreme Court at Bundaberg on 13 October 2004 to producing a dangerous drug, cannabis sativa, with a circumstance of aggravation that the quantity of the drug exceeded that specified in schedule 3 Drugs Misuse Act 1986 (Qld) and that he had in his possession the dangerous drug, cannabis sativa, also with that aggravating circumstance.	THE PRESIDENT: Mr Burgoyne pleaded guilty by ex officio with an operational period of three years. He appeals against his conviction and applies for leave to appeal against his sentence. He has also filed an application for an extension of time within which to appeal and applies to adduce fresh evidence at this hearing.
He appears for himself today. The grounds of his appeal are that "the circumstances and evidence were not examined fully and would give a different perspective to the situation". In
ground "that this law contradicts the Bible codified law -
a more recently filed copy of a notice of appeal he states the narcotic and that makes the law based on a lie."
He contends in his written submissions that "the photographs showed the majority of the plants were very small, without drug content, and were weeds not cultivated" and that cannabis has been shown to be beneficial and less dangerous than legal drugs.
he claims show that Queensland Health and various international corporations are associated with the "666" number and some sort of international conspiracy identifying the "The Beast" as prophesised in Revelations in a coup to destroy the people of the world. Those submissions seem to be completely irrelevant to the issues before this Court.
In other written and oral submissions he refers to codes which extension of time within which to appeal, it is common ground that this application is unnecessary as his notice of appeal against conviction and application for leave to appeal against sentence were filed within time. That application should be struck out.
The first issue then is the appeal against conviction and Mr Burgoyne's application to adduce further evidence. Mr Burgoyne pleaded guilty to both counts. The evidence he wishes to adduce relates firstly to his point that many of the plants seized by police were spent and were not capable of producing any intoxicating effect. Even if that were accepted, that would not make the sentence imposed manifestly excessive. That further evidence should not be received.
He also wishes to adduce evidence contained in his statement as to his belief supported by attached articles as to the medicinal and health benefits of cannabis sativa and the existence of this international conspiracy to destroy humankind.
This Court has on a number of occasions recently affirmed the unremarkable principle that the Drugs Misuse Act 1986 (Qld) makes it an offence to cultivate or possess cannabis sativa; that Act makes those offences more serious when large quantities of the drug are grown. If someone like Mr Burgoyne chooses to commit offences against the Drugs Misuse Act 1986 (Qld), even if he earnestly disagrees with the law creating those offences, he must be prepared to face the legal consequences of his unlawful actions. If Mr Burgoyne is dissatisfied with the statute law of the state he should take that matter up with the legislature, not the Courts. See Till v. Johns [2004] QCA 451; CA No 29 of 2004, 26 November 2004 and R v. Cunliffe [2004] QCA 293; CA Nos 115 and 116 of 2004, 13 August 2004.
warrant further discussion. It is sufficient to say that the application to adduce fresh evidence should be refused as the evidence Mr Burgoyne wishes to adduce does not raise any significant, real or reasonable possibility that a properly instructed jury would acquit him, even without consideration of the very substantial difficulty for him of his guilty pleas.
The evidence of the sinister international conspiracy does not form to demonstrate that the guilty plea entered was anything other than an informed and free one. The appeal against conviction should also be dismissed.
I turn now to the application for leave to appeal against sentence. Police attended Mr Burgoyne's home on 3 September 2003 where they saw a large quantity of cannabis plants in an enclosed area behind a pool. These plants were in garden beds, covered by shade cloth, of varying heights and apparently in good condition with some garden hose running to them. Police located another quantity of plants growing under bright electric lighting in a closed off room in a shed. The electrical equipment included four electrical transformers, one large light, a heat control unit, two power boards, two electrical timers, a digital thermometer and another four small lights.
Police next found in the rear section of that shed that the roof had been removed to allow for natural sunlight to enter and cannabis sativa plants in good condition growing in single pots, together with a quantity of recently cut cannabis stems placed in pots, apparently to propagate.
Police inspected a bus parked in a yard where they noticed a strong smell of cannabis. They located some cannabis plants in the driver's compartment, three cooking pots on a stove, a
cannabis in a microwave. When police searched Mr Burgoyne's home they found a sealed-off room in the loft with a quantity of cannabis plants growing in pots under two lights; some dried cannabis in the main bedroom; in the kitchen a number of containers of dried cannabis inside freezers, 18 clip-sealed bags of dried cannabis in a steel pot in the fridge, a large quantity of dried cannabis on top of the fridge in a mixing bowl, another 31 containers of cannabis seed, nine containers of growth supplements and in the lounge room a water pipe and a cone. In all, 209 plants were found. The dried cannabis weighed 1,984 grams or just under two kilos.
large quantity of dried cannabis and a plastic container of admissions to growing the cannabis for his personal use for relief of his sore back. Police found no indication that Mr Burgoyne was selling his cannabis but were understandably concerned about the large quantity found which would seem to be much more than for reasonable personal use.
The prosecutor at sentence contended that a term of imprisonment of 12 to 18 months was appropriate and that it could be fully suspended, although this would be a sentence at the very lowest end of the range.
Mr Burgoyne has some criminal history for like offences. In 1981, he was convicted of cultivating indian hemp and sentenced to six months imprisonment which, on appeal, was reduced to a $300 good behaviour bond for three years and a $500 fine. He also had some old and minor convictions for property offences and a conviction for assault in 1988. In 1992, he was sentenced to nine months imprisonment for cultivating marijuana.
submission as to penalty. He emphasised that Mr Burgoyne had pleaded guilty at an early stage by ex officio indictment and made full admissions to police, that the cannabis was grown for personal consumption because of a degenerative back condition and there was no evidence of commerciality.
Mr Burgoyne's barrister at sentence agreed with the Crown's until five years ago when he became unable to work due to a back injury and depression. He has no confidence in modern medicine and modern prescription drugs and ate cannabis seeds because they were high in healthy omega fats.
Bearing in mind the amount of prohibited drugs in Mr Burgoyne's possession, his maturity and his previous criminal history, the sentence imposed was by no means manifestly excessive, even after taking into account his very significant co-operation with the administration of justice and other mitigating factors. See, for example, R v. McKay; CA No 574 of 1996, 17 April 1997.
I would refuse the application for leave to appeal against sentence.
I propose the following orders: the application for an extension of time should be struck out, the application to adduce further evidence should be refused, the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.
MACKENZIE J: I agree.
CHESTERMAN J: I agree.
THE PRESIDENT: Those are the orders of the Court.

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