R v Megson

[1996] QCA 378

[1996] QCA 378

COURT OF APPEAL

MOYNIHAN J
MACKENZIE J
CULLINANE J

CA No 308 of 1996

THE QUEEN

v.

SHANE GLEN MEGSON  Applicant

BRISBANE

..DATE 01/10/96

JUDGMENT

011096 T2/RZB M/T COA239/96
MOYNIHAN J: This is an application for leave to appeal against sentence.  The defendant had pleaded guilty to producing the dangerous drug cannabis sativa.  There were some 96 plants involved.  They were at no particular state of maturity.  The case below was conducted on the basis that it was accepted that the plants were for the applicant's own use.

The Magistrate imposed a sentence of four months imprisonment.  He did so on the basis that the norm given by the Supreme Court in respect of the matter was around about two to four years. At that stage the sentencing discretion miscarried.  That is not to my understanding a proper reflection of what might be said to be the norm.  Indeed, it was quite open to the Magistrate to consider sentencing options short of a  custodial sentence, even bearing in mind that the applicant had a criminal history of some offences including, I think, in relation to the production of or involvement with the same dangerous drugs.  In my view, the application should succeed.

The applicant has served 28 day imprisonment as a consequence of the imposition of the sentence. To my mind, that is an adequate punishment for the offence. I would not wish to be taken as saying that, had he come to be sentenced afresh without having served that term, that would be the sentence imposed.  But seeing that he has served it, it seems to me that the appropriate order is to allow the application to set
011096 T2/RZB M/T COA239/96
aside the sentence imposed below to substitute a sentence of 28 days imprisonment, the effect of which as I understand it would be that the applicant is eligible for immediate release.

MACKENZIE J: I agree.
CULLINANE J: I agree.

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