R v McFadden - [1994] QCA 288

IN THE COURT OF APPEAL [1994] QCA 288

SUPREME COURT OF QUEENSLAND

C.A. No. 132 of 1994.

Brisbane

[R v. McFadden]

T H E Q U E E N

v.

JOHN McFADDEN
Applicant

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Fitzgerald P
Pincus J A
Williams J

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Judgment delivered 12 August 1994

Judgment of the Court
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Application for leave to appeal against sentence granted; appeal allowed. Sentences imposed below varied so that for each offence a sentence of 4 years imprisonment is imposed with a recommendation that the applicant be eligible for parole after 18 months. Sentences and orders imposed below otherwise confirmed.
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CATCHWORDS:CRIMINAL LAW - Sentence - production and trafficking of marijuana - small plantation of 54 plants - applicant, whilst drunk, attempted to bribe police to charge him under a false name - whether sentence manifestly excessive in light of other sentences concerning much larger plantations.

Counsel:Applicant appeared on own behalf.
Mr J Hunter for the respondent.

Solicitors:Director of Prosecutions for the respondent.

Date of hearing:4 August 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 August 1994

This is an application for leave to appeal against sentence. The applicant was sentenced in the Supreme Court on 15 March 1994 on his pleas of guilty to charges of trafficking in a dangerous drug, namely cannabis sativa, and related offences; he was also convicted of official corruption under s. 87(2) of the Criminal Code. The judge sentenced the applicant to 5 years imprisonment on each count, backdated to the date on which he was taken into custody. The points made by the applicant, who appeared for himself, were that he had a rather small marijuana plantation and that reference to decided cases suggests that a 5 year sentence with no parole recommendation was excessive.

The police visited a property leased by the applicant at Glen Aplin on 29 October 1993 and found there what was, from the description given, a well equipped marijuana plantation consisting of 48 plants in the ground; 6 plants were found growing in pots in the house in which the applicant lived. The police interviewed him and he made admissions; he claims that he had been drinking alcohol heavily before the police came, and certainly the transcript gives the impression that the applicant's conversation was of a rambling and perhaps boastful kind, consistent with his having been affected by alcohol.

It is not in issue that there were the numbers of plants which have been mentioned, and that their gross weight, apparently in "wet" condition, was about 30 kg. Other relevant circumstances are difficult to state precisely, because of the fashion in which the applicant discussed the matter with the police. He told them that he had obtained the money to set the plantation up by astute punting, but also told the police, in effect, that a sum of $10,000 of which he had possession came from his marijuana selling business. In this Court the applicant asserted that he had obtained funds from operating as…

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 McFadden

Details

AGLC: R v McFadden [1994] QCA 288
Case: [1994] QCA 288
Decision Date: 12 August 1994

CaseChat Overview and Summary

The case of R v McFadden involves the applicant, John McFadden, appealing against the sentence imposed by the Supreme Court. McFadden was found guilty of trafficking in a dangerous drug, specifically cannabis sativa, and related offences, as well as official corruption. The appeal concerns the severity of the 5-year imprisonment sentence imposed on each count, backdated to the date of his custody. McFadden argued that his sentence was excessive, considering the relatively small scale of his marijuana plantation and the lack of prior drug convictions.

The legal issues at hand were whether the sentence was manifestly excessive given the circumstances of the case, and if the general level of sentencing for similar offences could support such a lengthy imprisonment term. The Court examined the size of McFadden's plantation, the sophistication of his operation, his criminal history, and the impact of his attempt to bribe police officers. The Court also considered other comparable cases to determine if the sentence was commensurate with sentences handed down in similar circumstances.

The Court found that while the primary judge had considered McFadden's early admission of guilt and cooperation with the police, the starting point for the sentence appeared too high. The Court observed that the size of the plantation, McFadden's limited criminal record, and the influence of alcohol during the commission of the attempted corruption should all be factored into the sentencing. After reviewing comparable cases, the Court concluded that a 4-year imprisonment sentence for each offence, with eligibility for parole after 18 months, was more appropriate.

The Court allowed the appeal and varied the sentences imposed below. The final orders confirmed the sentences and orders imposed by the lower court, except that McFadden was to serve 4 years for each offence, with parole eligibility after 18 months.

Orders