Fear v The King
[2023] NSWCCA 238
•25 September 2023
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Fear v R [2023] NSWCCA 238 Hearing dates: 25 September 2023 Date of orders: 25 September 2023 Decision date: 25 September 2023 Before: Ward P at [1];
Davies J at [2];
N Adams J [3].Decision: (1) The extension of time to appeal against the conviction for supply of cannabis plant contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW) is granted.
(2) The appeal against conviction for the offence of supply cannabis plant contrary to s 23(1)(b) of Drug Misuse and Trafficking Act is allowed.
(3) The aggregate sentence imposed by Judge Robinson at the Penrith District Court on 28 September 2022 is quashed.
(4) The matter is remitted to the Downing Centre District Court on Friday 29 September 2023 at 9.30am for mention.
Catchwords: CRIMINAL LAW – conviction appeal – applicant pleaded guilty to supplying cannabis plant – no evidence to establish that offence – should have been charged with supply cannabis leaf – Crown concedes error
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW), ss 92H(2), 193B(2)
Criminal Appeal Act 1912 (NSW), s 5
Drug Misuse and Trafficking Act 1985 (NSW), ss s 23(1)(b), s 25 (1)
Weapons Prohibition Act 1988 (NSW), s 7(1)
Cases Cited: R v Liberti (1991) 55 A Crim R 120
Category: Principal judgment Parties: Jason Patrick Fear (Applicant)
Rex (Respondent)Representation: Counsel:
Solicitors:
Mr A Evers (Applicant)
Ms E Wilkins SC (Respondent)
Legal Aid Commission NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2021/ 221541 Publication restriction: Nil. Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 28 September 2022
- Before:
- Robinson DCJ
- File Number(s):
- 2021/ 221541
JUDGMENT
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WARD P: I agree with N Adams J
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DAVIES J: I agree with N Adams J.
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N ADAMS J: The applicant sought leave to appeal under s 5 of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence of 3 years and 9 months imprisonment imposed on him by Judge Robinson in the District Court on 28 September 2022 at the Penrith District Court.
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That sentence was imposed for six offences: knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW), possession of child abuse material contrary to s 92H(2) of the Crimes Act, three counts of possessing a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1988 (NSW), and one account of supply cannabis plant contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW).
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The applicant relied on the sole ground of appeal that the aggregate sentence imposed was manifestly excessive. Written submissions in support of that ground were filed on 7 August 2023.
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In the Crown written submissions filed on 19 September 2023, a concern was raised for the first time as to whether the applicant should have been convicted of the offence contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act. Although the applicant had pleaded guilty to that offence and had been convicted and sentenced for it, it was the Crown's submission that there was no evidence to establish that offence.
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Following this issue being raised by the Crown, the applicant now seeks leave to appeal out of time against his conviction on the supply charge. The Crown does not oppose an extension of time being granted for him to do so and concedes that the appeal against conviction on that count should be allowed. I am satisfied that the concession is properly made. My reasons for accepting the Crown's concession are as follows.
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The brief facts in support of the charges are that police attended the applicant's residence on 3 August 2021 for a routine inspection under the Child Protection (Offenders Registration) Act 2000 (NSW).
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In addition to finding child abuse material, a strong smell of cannabis was detected. A search warrant was obtained and executed. Police subsequently located 7,589 grams of cannabis leaf stored in plastic bags and glass containers in different areas in the applicant's residence. Cash in the amount of $18,400, a set of nunchakus, a throwing star, and a set of side handled batons were also located.
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The Court Attendance Notice for the supply charge described that offence as “supply prohibited plant (cannabis)” under s 23(1)(b) of the Drug Misuse and Trafficking Act. The charge certificate similarly described the supply offence as “supply a prohibited plant, namely cannabis” contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act.
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The Notice of Committal simply described the offence as “Supply cannabis ˃ indictable & ˂ commercial quantity”. The agreed facts in the District Court also described the offence as “Supply cannabis ˃ indictable & ˂ commercial quantity”. The agreed facts accurately described the drug that was located as cannabis leaf.
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No evidence was adduced at the proceedings on sentence that the applicant had ever possessed or supplied cannabis plant. Although the applicant was committed for an offence of supplying cannabis plant, the proceedings on sentence were conducted on the basis that the applicant was to be sentenced for having supplied cannabis leaf.
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When the formal orders of the sentencing court were made, the applicant was sentenced “for each offence before the Court”. The applicant was thus sentenced for the supply of cannabis plant in circumstances in which the evidence before the court was that he had supplied cannabis leaf.
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Section 23 of the Drug Misuse and Trafficking Act is headed “Offences with respect to prohibited plants”. Section 23(1) is in these terms:
23 Offences with respect to prohibited plants
(1) A person who—
(a) cultivates, or knowingly takes part in the cultivation of, a prohibited plant,
(b) supplies, or knowingly takes part in the supply of, a prohibited plant, or
(c) has a prohibited plant in his or her possession,
is guilty of an offence.
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Both “cannabis plant” and “cannabis leaf” are defined in s 3 of the Drug Misuse and Trafficking Act. “Cannabis plant” is defined as any growing plant of the genus cannabis whereas cannabis leaf is relevantly defined as any plant or part of a plant of the genus cannabis by whatever name that plant may be called but does not include (a), cannabis oil, (b), any fibre of any such plant or part from which the resin has been extracted, or (c), cannabis plant.
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The supply of cannabis plants is an entirely different offence to the supply of cannabis leaf. The offence of supplying cannabis leaf is to be found in s 25(1) of the Drug Misuse and Trafficking Act, not s 23.
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I am satisfied that the applicant could not in law have been convicted of the offence of supply cannabis plant under s 23(1)(b) of the Drug Misuse and Trafficking Act. Accordingly, I accept the Crown concession that the applicant's conviction on that offence should be quashed: R v Liberti (1991) 55 A Crim R 120 at 121-122.
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The sentencing judge imposed an aggregate sentence on the applicant for all six offences. The applicant's conviction on one of those six offences has now been quashed. It was the common position of the Crown and the applicant that this appeal should be disposed of by quashing the aggregate sentence and remitting the matters to the District Court so the applicant can be charged with the correct offence by way of ex officio indictment and be resentenced.
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I would propose the following orders:
The extension of time to appeal against the conviction for supply of cannabis plant contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW) is granted.
The appeal against conviction for the offence of supply cannabis plant contrary to s 23(1)(b) of Drug Misuse and Trafficking Act is allowed.
The aggregate sentence imposed by Judge Robinson at the Penrith District Court on 28 September 2022 is quashed.
The matter is remitted to the Downing Centre District Court on Friday 29 September 2023 at 9.30am for mention.
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Decision last updated: 10 October 2023
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