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Court of Criminal Appeal 10 April 2003

REGINA v Jason Marty DOPSON

[2003] NSWCCA 99

Also reported as (2003) 141 A Crim R 302
Drugs

Citation: Regina v Jason Marty Dopson [2003] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 10 April 2003
Judges: Hidden J, Bell J, Buddin J

Background

The respondent pleaded guilty in the Local Court to cultivating a prohibited plant (cannabis) in a quantity not less than the commercial quantity, being 521 plants at a residential property in Murrumbateman on 1 November 2001. The offence was charged under the Drug Misuse and Trafficking Act 1985 and carried a maximum penalty of 15 years imprisonment. Four additional possession offences were taken into account on a Form 1 document.

In the Queanbeyan District Court, Judge Graham sentenced the respondent to two years imprisonment but suspended the execution of that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999, releasing him on a good behaviour bond with conditions including supervision by the Probation and Parole Service and participation in substance abuse treatment.

The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912, contending the sentence was manifestly inadequate. The Director argued that the primary judge erred in finding the cultivation was solely for the respondent's personal use rather than for commercial purposes.

  • Whether Judge Graham erred in finding, on the evidence, that the respondent cultivated the cannabis plants for personal use rather than commercial distribution
  • Whether, given that factual finding, the decision to wholly suspend the execution of the two-year sentence was manifestly inadequate
  • Whether the significant delay between sentence and service of the Crown appeal notice was material to the outcome

Decision

The Court examined the evidence before Judge Graham in detail, including the respondent's handwritten statement to police, the pre-sentence report prepared by a Probation and Parole Officer, and expert toxicological evidence concerning the respondent's cannabis dependency. The primary judge accepted that the respondent, who had a 17-year cannabis addiction, cultivated the plants with the intention of maintaining a substantial personal supply during his parents' absence from the family home.

Bell J, with whom Hidden J and Buddin J agreed, found that the Crown had not established that this factual finding was contrary to compelling or cogent evidence. Applying the principles from Devries v Australian National Railways Commission and State Rail Authority (NSW) v Earthline Constructions, the Court held that an appellate court should not interfere with findings of fact unless plainly wrong. The Crown's challenge to that finding was rejected.

On the question of the suspended sentence, the Court acknowledged the serious objective features of the offence, including that the plant count exceeded double the commercial quantity threshold. However, taking into account the time spent in a residential drug treatment program, the early guilty plea, and the totality of the circumstances, Bell J concluded that the suspension of the sentence did not produce a result so manifestly disproportionate to the circumstances that Judge Graham could be said to have been plainly wrong, applying the standard in Dinsdale v The Queen.

The Court noted, but did not need to resolve, concerns about the delay of approximately 16 weeks between sentencing and service of the appeal notice. It observed that such delay is particularly problematic in Crown appeals where the outcome sought is to substitute full-time custody for a suspended sentence, referring to the criticism expressed in R v Boundy.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • An appellate court will not interfere with a primary judge's finding of fact unless the finding is contrary to compelling or cogent evidence or is otherwise plainly wrong.
  • Where a Crown appeal targets the suspension of a sentence rather than its length, the court must assess whether the overall outcome is so manifestly disproportionate to the offence and the offender that the sentencing judge was plainly wrong, applying the standard from Dinsdale v The Queen.
  • The Court of Criminal Appeal reiterated its concern about undue delay in the prosecution of Crown appeals, particularly where the Crown seeks to convert a suspended sentence into full-time custody. A delay of around 16 weeks without satisfactory explanation was noted as greater than that criticised in R v Boundy.
  • Cultivation of cannabis at a commercial quantity (but below large commercial quantity) remains an objectively serious offence, and the sentencing court is required to treat full-time imprisonment as a significant starting point even where personal use is accepted as the purpose.
  • No error was established in this case despite the scale of the operation, given the combination of the respondent's dependency, early plea, and participation in residential rehabilitation.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 32
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 23(2)(a)

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