R v McBride - [2003] NSWCCA 282

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v McBride [2003] NSWCCA 282

FILE NUMBER(S):
60151/03

HEARING DATE(S): 20/08/03

JUDGMENT DATE: 03/10/2003

PARTIES:
Regina (Appellant)
Andrew James McBride (Respondent)

JUDGMENT OF: Foster AJA Grove J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3140

LOWER COURT JUDICIAL OFFICER: Moore DCJ

COUNSEL:
DML Woodburne (Appellant)

SOLICITORS:
SE O'Connor (Crown)
S Hodges (Respondent)

CATCHWORDS:
Crown appeal against inadequacy of sentence; ignorance that manufacture of a drug is prohibited or illegal; submission plea should be rejected.

LEGISLATION CITED:
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

DECISION:
Sentence quashed; sentence imposed of 1year 8 months periodic detention with non-parole period of 1year 3 months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60151/03
FOSTER AJA
GROVE J
DOWD J
Friday 3 October 2003

REGINA v ANDREW JAMES McBRIDE

Judgment

FOSTER AJA: I agree with Dowd J.
GROVE J: I agree with Dowd J.
DOWD J: This is an appeal under s5D of the Criminal Appeal Act 1912 (“the Appeal Act”) in respect of a sentence imposed on the respondent, Andrew James McBride, by Moore DCJ on 31 March 2003.
The respondent entered a plea of guilty to and was convicted and sentenced for an offence of Knowingly Take Part in the Manufacture of a Prohibited Drug, namely pseudoephedrine, on 19 December 2000 contrary to s24 (1) of the Drug Misuse and Trafficking Act 1985 (“the Drug Act”) for which the maximum penalty is two thousand penalty units or imprisonment for fifteen years or both.
The sentence also took into account two charges on a Form 1, being a charge of Deemed Supply of Prohibited Drug, namely pseudoephedrine, on that same date contrary to s25 (1) and s29 of the Drug Act which carries a similar penalty, and a second charge of Deemed Supply Prohibited Drug, namely cannabis leaf, contrary to s25 (2) and s29 of the Drug Act which carries a maximum penalty of two thousand penalty units and/or imprisonment for ten years.
The sentence imposed was five hundred hours of community service. The respondent had been in custody for twenty three days before bail was granted which the learned sentencing judge took into account on sentence. At the time of lodging of the Crown appeal the respondent had served some eighty hours of community service.
The grounds of the appeal were:

That there was error in the exercise of the sentencing judge’s discretion in a finding of fact that was against the weight of the evidence;
That even if open to the sentencing judge to make the finding of fact, having made that fact his Honour made an error of law in accepting the plea of guilty to the charge of Knowingly Take Part in the Manufacture of Pseudoephedrine and taking into the account the offence of Supply Prohibited Drug; and
That there was error in the exercise of the sentencing discretion by reason of the imposition of a manifestly inadequate sentence.

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McBride

Details

AGLC: R v McBride [2003] NSWCCA 282
Case: [2003] NSWCCA 282
Decision Date: 3 October 2003

CaseChat Overview and Summary

In the matter of R v McBride, the Crown sought an appeal against the adequacy of the sentence imposed on the respondent, who was convicted of drug manufacturing offences. The appeal arose from a case where the respondent allowed a person he barely knew to use his shed for a week without knowing the individual was manufacturing pseudoephedrine. The respondent claimed ignorance of the illegality of the activity and asserted that he would not have permitted the use of the shed if he had known it was illegal. The appeal was heard in the court of appeal, which was tasked with determining whether the original sentence was appropriate and if the plea of ignorance should be accepted.

The court needed to decide if the sentence imposed on the respondent was adequate and whether the respondent's claim of ignorance about the illegality of manufacturing pseudoephedrine should be accepted. The appeal hinged on the respondent's state of mind and knowledge at the time of the offence. The court was also required to assess the principles of sentencing, including the gravity of the offence and the need for deterrence and rehabilitation, in light of the respondent's background and personal circumstances.

The court found that the respondent's plea of ignorance did not absolve him of responsibility. It was noted that the manufacture of pseudoephedrine had been illegal since 1995, and the respondent, who had a history of drug use and was aware of the general illegality of drug manufacturing, should have been aware of the specific prohibition against manufacturing pseudoephedrine. The court emphasised that the respondent's lack of knowledge about the specific illegality did not negate his culpability. The appeal was allowed, and the case was remitted to the sentencing court for reconsideration of the sentence.

The final orders of the court were that the appeal against the inadequacy of the sentence was allowed, and the matter was remitted to the sentencing court for reassessment of the sentence. The court did not accept the respondent's plea of ignorance as a mitigating factor and stressed the importance of deterrence in sentencing for drug manufacturing offences.

Orders

Orders of the court

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Background

Background to the litigation

The respondent entered a plea of not guilty to an indictment containing three charges as at 26 April 2002 but a fresh indictment including the charges set out above, was presented on 5 August 2002. This plea was taken as an early plea and an undertaking was given by the Crown that the respondent would not be asked to name the person who used the shed on his property for manufacturing purposes due to the respondent’s fear of reprisal.The Facts On 19 December 2000 police executed a search warrant at the premises of the respondent in Kemps Creek and found a total of 823.4 grams of cannabis leaf in the respondent’s wardrobe at his premises. An additional 1.5 kilos of leaf being mainly stems was located in the garage but not attributed to the respondent. In the respondent’s wardrobe, in a paste rock form was 386.1 grams of pseudoephedrine with a purity of 49.5%. Traces of pseudoephedrine were also found in items seized from the kitchen and around the house. Blister packs containing 810 Sudafed tablets were located in the respondent’s pantry and a further 168.3 grams of tablets were in two plastic bags in the lounge room. In a shed at the back of the premises were buckets and pots containing pseudoephedrine in paste form and the general paraphernalia of a drug manufacturing factory. Pseudoephedrine is extracted from the Sudafed tablets.Respondent’s Subjective Matters on Sentence The evidence on the sentencing hearing was that the respondent had the benefit of a loving and supportive family. The pre-sentence report noted that the respondent is described as a person likely to allow others to exploit him. The respondent has been in constant employment in semi-skilled jobs and the pre-sentence report opined that the respondent had the ability to learn from his mistakes. The respondent had been in constant employment since leaving school working long hours. He said he would not take drugs again. The respondent had been a regular user of marijuana and up to four times a week used amphetamines until apprehended. His evidence was that he had been free since arrest and lives with his eldest sister who said he is no longer using any drug. The respondent’s evidence on sentence was, and it was part of the agreed facts, that he had allowed a person that he barely knew to use the respondent’s shed for a week and that he did not know the person was making pseudoephedrine until half way through the week. No money was paid for the use of the shed. The respondent had been in the habit of allowing many people to use the shed to work on cars and other matters. It was a constantly used workshop. As the respondent was working long hours and the shed was constantly in use, a key was made available for others to use the shed. The respondent’s evidence was that he did not know that manufacturing pseudoephedrine was a breach of the law and if he had known it was illegal he would not have allowed the use of the shed. The manufacture of pseudoephedrine had not become an offence until 1995.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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