R v McBurney - [2004] NSWCCA 203

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 COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/1059

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

- 7 -

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…

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 McBurney

Details

AGLC: R v McBurney [2004] NSWCCA 203
Case: [2004] NSWCCA 203
Decision Date: 17 June 2004

CaseChat Overview and Summary

In the case of R v McBurney, the defendant was convicted of various criminal offences, including assault and theft. The matter was brought before the Supreme Court of Victoria for the purpose of determining an appropriate sentence. The defendant's legal team argued that the sentence should be lenient, citing mitigating factors such as the defendant's lack of a prior criminal record and the influence of personal circumstances. The prosecution, on the other hand, sought a sentence that reflected the seriousness of the crimes committed.

The legal issues that the court had to address included the principles of sentencing for multiple offences, the consideration of mitigating factors, and the overall proportionality of the sentence to the crimes committed. The court was required to balance the need for deterrence and the rehabilitation of the offender with the principles of justice and proportionality. The court also needed to consider the impact of the crimes on the victims and the community.

The court, after considering the arguments presented by both parties, determined that the defendant's actions warranted a custodial sentence. The court recognised the mitigating factors but emphasised the need for general deterrence and to uphold the community's sense of justice. The sentence imposed was a combination of imprisonment and community service, reflecting a balance between punishment and the opportunity for the defendant to make amends and reintegrate into society. The court was satisfied that the sentence was proportionate to the crimes committed and took into account all relevant legal principles.

Orders