R v McKay

[1997] QCA 97

COURT OF APPEAL

[1997] QCA 097

FITZGERALD P McPHERSON JA MACKENZIE J

CA No 574 of 1996
THE QUEEN
v.

DAVID LESLIE McKAY Applicant

BRISBANE
..DATE 17/04/97
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MACKENZIE J: The applicant pleaded guilty to possession of
cannabis and production of cannabis, both being aggravated
offences by reason of the quantity of the drug, and possession
of a variety of items used in connection with the production of
cannabis.

There was a timely plea which was made at committal and he was sentenced to two and a half years' imprisonment. The two and a half year sentence appears to reflect the learned sentencing Judge's view that had the applicant not pleaded guilty, a sentence of substantially over three years would have been appropriate.

The sentencing remarks show that the learned sentencing Judge treated the plea of guilty as recognition of inevitability of conviction rather than true remorse. He had two previous Magistrates Court convictions for possession of a dangerous drug, one in 1983 and the other in 1994. The facts in respect of the latter put before the Court indicate that it was a minor offence. Those were the only prior convictions although it was because he came under police notice in New South Wales that a search of his property at Moogerah revealed the plantation for which he is now sentenced.

The search revealed cannabis plants in tubs, a hollowed-out log, and fenced and unfenced plots. There were 29 plants of two metres or more, 65 seedlings and 18 of intermediate sizes. There were also 16 clip-seal bags of cannabis with about .56 grams in them.

170497 T1/JB M/T COA67/97
Some of the items in count 3 formed an irrigation system in

which a pump took water from a dam to concealed 44 gallon drums.

Those drums gravity fed drippers and sprinklers at the various

sites where the cannabis was grown.

The Crown Prosecutor below submitted on sentence that a range of two to two and a half years was appropriate. The defence took no issue with that range and submitted that the real issue was the extent to which he should have a parole recommendation or a partial suspension.

Mr Glynn, before us, submitted that the learned trial Judge had started with a range that was too high but that the concession below inhibited him from arguing that the head sentence of two and a half years was excessive although he would have been disposed to submit that it was the high end of the range. Mrs Clare for the Crown accepts, in effect, that the range at which the sentencing started was too high.

Now, there were a number of personal factors. I have already mentioned the fact that there was an early plea of guilty. The applicant had only minor previous convictions and had the care of young children. It seems to me that if the sentencing started from a basis of three years or a little more for this offence, it was a process that was flawed and that the applicant is entitled to a sentence which reflects a lower range.

In my view, having regard to the matters that I have mentioned, a sentence of two and a half years as a head sentence, with a non parole period of nine months, is appropriate. I would 170497 T1/JB M/T COA67/97

therefore grant leave to appeal against the sentence. I would allow the appeal and I would add to the sentence imposed by the learned sentencing Judge a recommendation that the applicant be considered for release on parole after serving nine months of the two and a half years.

THE PRESIDENT: I agree.

McPHERSON JA: I agree.

THE PRESIDENT: The orders will be as indicated by Mr Justice

Mackenzie.

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