R v McDonald

[1994] QCA 569

COURT OF APPEAL

[1994] QCA 569

MACROSSAN CJ McPHERSON JA DOWSETT J

CA No 412 of 1994

THE QUEEN
v.

DENIS McDONALD Applicant

BRISBANE
..DATE 18/11/94
THE CHIEF JUSTICE: I shall ask Mr Justice McPherson to
deliver his reasons first.

McPHERSON JA: On 19 September 1994 the applicant for leave to appeal against sentence in this matter was convicted on his plea of guilty in the Magistrates Court at Caboolture of two charges, one of production and the other of possession of a dangerous drug. The drug in question was cannabis in the form of 66 plants which had been located by police some two days earlier growing in a shed on a property occupied by the plaintiff at D'Aguilar where he lived.

The plants in question ranged from some 6 centimetres to
75 centimetres in height. There is no evidence of the weight
of the cannabis involved. In addition, what is described as a
small amount of marijuana was found in the applicant's house.

The Magistrate imposed a fine of $4,000 on the applicant, in default four months' imprisonment. A period of six months to pay it was allowed.

Leave to appeal is now sought on the ground that the sentence
was manifestly excessive. The applicant is a man aged
52 years, a pensioner with no previous convictions of any
kind. The number of plants is not small and it is perhaps a
correct inference that steps may have been taken to conceal
them. They were, as I said, growing in a shed or it may have
been a hot-house on the applicant's property. It was not
suggested, however, that the cultivation was part of a
commercial enterprise.
The applicant cooperated with police and, as is evident from
the dates I have mentioned, he pleaded guilty very soon after
the offence was discovered. The Magistrate in arriving at the
fine of $4,000 which he fixed, referred to the maximum penalty
of $6,000 provided for in the legislation in the case of
possession or cultivation of 100 plants. It is a possible
explanation of the amount of the fine at which he arrived that
the Magistrate apportioned the fine imposed in proportion to
the maximum amount based on the number of plants in this case.

It does not appear that he gave any clear consideration to the option of imposing a community service order. Under the legislation, that is to say under the relevant provisions of the Penalties and Sentences Act, it is possible for the fine to be converted or commuted into some form of community service. That is a matter that was referred to by this Court in R. v. Damien William Hile, CA No 264 of 1994. In that instance, the fine was one of $3,000 in default six months' imprisonment. The Court took into account that the applicant in that case had the opportunity of applying for a fine option order in terms of those statutory provisions.

In the present case, we were told that the appropriate conversion rate for a fine of $4,000 would produce a period of community service of the order of 660 hours. It must be said that when one looks at the matter in that way or, indeed, looks at the fine itself, the penalty imposed by the Magistrate seems to be beyond the range of penalties which are commonly imposed by Supreme Court Judges in respect of offences of this kind when they happen to come before the Court. My impression is that the sentencing discretion might have miscarried either because the Magistrate did adopt the course of treating the case as one simply two-thirds of the way up to the maximum penalty, or because he may have failed to take into account the option of community service, or that, for some other reason, there has in the end been a fine which is, to my mind, manifestly excessive for the offence involved and the circumstances of the offender.

In these circumstances, I would be disposed to allow the application for leave to appeal and to vary the sentence imposed by reducing the fine from $4,000 to $2,000, and by reducing the default period from four to two months in this case. In other respects, I would not disturb the sentence.

THE CHIEF JUSTICE: I agree. One is left with the impression that the sentence imposed in this case by the Magistrate was excessive. This impression is to be gathered not only from the general circumstance of the offence here, but from the fact that we are dealing with a first offender and one who pleaded guilty and who was, as well, a pensioner. So I accordingly agree with the order which is proposed.

DOWSETT J: I agree with the proposed order and with the
observations which have been made by both of the other members
of the Court.
THE CHIEF JUSTICE: That will be the order of the Court
accordingly.

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