REGINA v Jason Marty Dopson - [2003] NSWCCA 99

Reported Decision:
141 A Crim R 302

New South Wales

Court of Criminal Appeal

CITATION: REGINA v Jason Marty DOPSON [2003] NSWCCA 99

HEARING DATE(S): 10/4/03

JUDGMENT DATE:
10 April 2003

JUDGMENT OF: Hidden J at 1; Bell J at 2; Buddin J at 36

DECISION: Appeal dismissed

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CASES CITED: Devries v Australian National Railways Commission [1992-1993] 177 CLR 472
Dinsdale v The Queen (2000) HCA 54; 202 CLR 321
R v Baker (2000) NSW CCA 85
R v Boundy [2002] NSW CCA 319
R v Galway (unreported) NSW CCA 19 August 1998
R v JCE (2000) 120 A Crim R 18
R v Seman (unreported) NSW CCA, 12 May 1992
R v Zamagias (2002) NSW CCA 17
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306

PARTIES :
REGINA (Appellant)
Jason Marty DOPSON (Respondent)

FILE NUMBER(S): CCA 60019/03

COUNSEL: PJP Power SC (Crown)
CB Craigie SC (Respondent)

SOLICITORS: SE O'Connor
Nicola Velcic & Associates (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0118

LOWER COURT
JUDICIAL OFFICER : Graham DCJ

60019/03

HIDDEN J
BELL J
BUDDIN J
THURSDAY 10 April 2003

REGINA v Jason Marty DOPSON

Judgment

1 HIDDEN J: I will ask Justice Bell to deliver the first judgment.

2 BELL J: This is an appeal by the Director of Public Prosecutions brought pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed by his Honour Judge Graham in the Queanbeyan District Court on 23 October 2002.

3 The respondent pleaded guilty to a single count on indictment charging him with the cultivation of a prohibited plant, cannabis, in an amount not less than the commercial quantity (501 plants). The offence occurred on 1 November 2001 at Murrumbateman. It is an offence provided by s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (“the DMTA”) and carries a maximum penalty of imprisonment for fifteen years. Judge Graham was asked to take into account a further four offences set out in a form 1 document pursuant to the provisions of s 32 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) . The form 1 offences were in each case charged under s 10(1) of the DMTA and related to the respondent’s possession of cannabis leaf and seeds on the date of his arrest on the principal count.

4 The respondent pleaded guilty in the Local Court. There was a technical deficiency in the s 51A committal for sentence document which explains why he was arraigned on indictment before Judge Graham. His Honour accepted that the respondent had pleaded guilty at the earliest opportunity.

5 The respondent was sentenced to a term of two years imprisonment to date from 23 October 2002. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) Judge Graham directed that the execution of the…

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.

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Details

Case: [2003] NSWCCA 99
Decision Date: 10 April 2003

CaseChat Overview and Summary

The case of Regina v Jason Marty Dopson involved an appeal by the Director of Public Prosecutions against a sentence imposed by Judge Graham in the Queanbeyan District Court. The respondent, Jason Marty Dopson, had pleaded guilty to cultivating a prohibited plant, cannabis, in an amount not less than the commercial quantity (501 plants) and to four other offences related to the possession of cannabis leaf and seeds. Judge Graham sentenced the respondent to a term of two years imprisonment, which was to be suspended, and ordered that the respondent be released on a good behaviour bond. The Crown appealed against the sentence, arguing that it was manifestly inadequate.

The legal issues before the Court of Criminal Appeal were whether the primary Judge had erred in finding that the cannabis was cultivated for personal use and whether the sentence imposed was manifestly inadequate. The Court found that the primary Judge had not erred in accepting the respondent's evidence that the cannabis was cultivated for personal use, as it was open to the primary Judge to assess the credibility of the respondent's evidence. The Court also found that the sentence imposed was not manifestly inadequate, as the primary Judge had considered the objective seriousness of the offence, the respondent's favourable subjective circumstances, and the period spent in a residential drug treatment program.

The Court of Criminal Appeal dismissed the Crown's appeal and upheld the sentence imposed by the primary Judge. The Court emphasised the importance of not interfering with a primary Judge's findings of fact based on credibility, unless there was a clear error in the use or misuse of evidence or the findings were glaringly improbable. The Court also noted that Crown appeals should be rare and that manifest inadequacy should only be found in cases where there was a clear error of principle.

Orders