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 a telephone bookmaker.  Whatever the source of the money, he turned out to have $10,000 buried,  which he dug up for the police.

The prosecutor told the primary judge that the applicant had admitted that he had been growing marijuana for four years, but that was disputed by counsel for  the applicant below, who said that he had not grown marijuana commercially for four years but for about 12 months.  The applicant's counsel told the primary judge, however, that he had grown "a number of crops which he disposed of commercially".

The applicant's criminal record placed before the primary judge indicated that he committed some offences as a child, but since he reached the age of 17 years had only one recorded offence, namely driving a motor vehicle while his blood alcohol content was .14 per cent;  the applicant is now aged 54.  He told the police, when they came to see him on 29 October 1993, that he had "blues" in Sydney;  when asked whether they were just petty theft the applicant replied that the "biggest one is ah 16,000 ..." and that he was sentenced to 12 months imprisonment.  He offered the police various sums of money, in consideration of his being charged under a false name, apparently to prevent his being identified with a person who had been in trouble in New South Wales.  At one point it seemed to be suggested to the police that he was anxious to avoid extradition to New South Wales.  The amount of money mentioned varied from $7,000 in total to (according to the prosecutor's statement to the primary judge) $10,000 for each of two policemen.

It would not seem right to consider the matter on the basis that the applicant had, as he claimed to the police, committed serious offences in Sydney.  No such offences appear in the record tendered.  The impression gained from the transcript is that the applicant spoke to the police in an oddly inappropriate way and was anxious to impress them that he was a man of the world, experienced in and knowledgeable about the ways of police and the courts.

We approach the case on the basis that there was a relatively small, but well tended marijuana plantation, from which the applicant had made money by sales of its produce, for a year or more.  The primary judge explained that he took into account the early acknowledgment of guilt and some co-operation with the police in fixing the sentence of 5 years.  Presumably, the basis from which his Honour started in arriving at that result was that the applicant would but for these circumstances have merited at least 6 years imprisonment.

The question is whether a sentence of that sort can be supported, having regard to the general level of sentencing in such cases.  We have been given a schedule of decisions, at first instance and appellate.  This has proved useful, although it has to be said that the description "crop sitter", with its implication of mere passivity, seems to have been applied rather too freely, as in the summary of Hopkins, C.A. No. 286 of 1992.  It appears to be a convenient course to mention only some of the more recent cases, taking the details from the schedule.  In Adams, C.A. No. 330 of 1990, the number of plants was 3,375 and the applicant had previous similar convictions - i.e. for cultivation and for possession;  he pleaded guilty, but only on the second day of the trial, and was given the equivalent of 5 years imprisonment.  Although Adams was not the originator of the scheme in which he participated, we think that a 5 year sentence, in the circumstances of Adams' case, does not accord well with a notional sentence of say 6 years for the applicant.  In Daly, C.A. No. 266 of 1991, there were over 3,000 plants and the sentence was imposed on the basis that Daly was a principal offender.  He was convicted after a trial and received a sentence of 4 years with a recommendation for parole after 18 months.  In Meehan, Thomas J, 22 July 1994, there were over 1,800 plants and the sentence covered a large number of receiving offences;  the plea was guilty and the sentence was 4 years with a recommendation for parole after 18 months.  In Ferricks, C.A. No. 243 of 1991, there were over 5,000 plants and the conviction, after a trial, produced a sentence of 3 years imprisonment.

A case in which a sentence was fixed by this Court for a similar offence deserves mention;  that is, Sands C.A. No. 338, 339 of 1992, 2 February 1993, in which the principal judgment was given by the Chief Justice.  Sands had previous relevant convictions, in 1986 for cultivating cannabis and of possession of it, and in 1991 for producing cannabis and for producing "a dangerous drug specified in the Second and Third Schedule";  the 1991 penalty was 3½ years imprisonment.  The case concerned a further offence of production of cannabis and possession of cannabis;  there were 17 mature plants and an associated harvested crop of 7.9 kgs.  Sands was involved in these offences while on leave from detention centres, in respect of his 1991 imprisonment. 

Sands was sentenced to 3½ years imprisonment, cumulative upon his existing sentence, but that was reduced to 2 years on appeal;  he was sentenced on the basis that he had involved himself to some extent in the production of the crop;  there was a plea of guilty.  His wife, who was, it appears, the major figure in the enterprise at that stage - the husband helped while on leave of absence - had her sentence of 2½ years imprisonment reduced to 12 months (C.A. No. 234 of 1993, 8 November 1993).  We have also noticed Sargent, C.A. No. 99 of 1993, 19 August 1993, in which a conviction for production of cannabis, the plantation being substantially more extensive than in the present case, produced a penalty of 3 years imprisonment with parole after 9 months;  the plea was not guilty.

Although one would not expect anything like a direct proportion between the size of the plantation and the sentence, it appears to us that the relatively small size of the plantation with which the Court is presently concerned must have a bearing on the sentence, despite the emphasis placed, before us, on the "sophistication" of the applicant's set-up.  The fact that the applicant's record, with one minor exception, contains none other than very old, juvenile offences must also have weight;  there are no previous drug convictions old or new.

The learned primary judge obviously took the view, and we agree, that the conviction of attempted corruption must add a significant amount to the sentence.  On the other hand, the seriousness of that must be discounted a little when one reads the statements in the course of which the offer was made;  it seems to us likely that alcohol had much to do with the applicant having given way to the impulse to make to the police the rather strange proposals which led to this conviction.

It has to be kept in mind, further, that the applicant has suffered a penalty in that equipment used in the commission of the offence, including a motor vehicle, has been forfeited.  

With all respect to the experienced primary judge, we have come to the conclusion that the assumed starting figure of at least 6 years imprisonment is higher than can be supported, even making due allowance for the attempt at corruption, having regard to the general level of sentencing for offences of this kind.  We propose to reduce the head sentence to 4 years for each offence and to order that the applicant be considered for parole after 18 months.