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Court of Criminal Appeal 21 April 2004

Regina v Glen Alan Jackson

[2004] NSWCCA 110

DrugsTheft & property

Citation: Regina v Glen Alan Jackson [2004] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 21 April 2004
Judge(s): Wood CJ at CL, Sully J, Hislop J

Background

The appellant pleaded guilty in the Local Court to two charges: supplying a prohibited drug on three or more occasions within 30 consecutive days for financial reward, contrary to section 25A(1) of the Drug Misuse & Trafficking Act 1985 (NSW), and breaking, entering and stealing from a farming workshop, contrary to section 112(1) of the Crimes Act 1900 (NSW). He was then committed to the District Court for sentencing.

At the commencement of the District Court proceedings, a problem emerged with the drug charge. The original charge sheet had identified the drug as amphetamine, but subsequent laboratory analysis confirmed it was methylamphetamine. To correct that error, the Crown preferred a fresh indictment in the District Court, and the appellant was arraigned and pleaded guilty again to both counts. Judge Bellear sentenced him to an overall term of four years' imprisonment with a two-year non-parole period.

The appellant subsequently challenged his conviction on the drug supply count and sought leave to appeal against both sentences.

  • Whether the plea of guilty entered in the District Court to the section 25A(1) charge was properly supported by the underlying factual evidence, in particular whether the evidence established the statutory requirement of supply on three or more separate occasions within 30 consecutive days.
  • Whether the arraignment on indictment in the District Court was procedurally valid, and whether the sentencing regime applicable was that of the District Court rather than the Local Court.
  • Whether the sentence of 18 months' imprisonment for the break, enter and steal offence was excessive, and if the drug conviction fell away, what adjustments were required to that sentence.

Decision

The Court allowed the appeal against conviction on Count 1. Sully J (with whom Wood CJ at CL and Hislop J agreed) found that the factual material before the District Court did not adequately support the elements of the section 25A(1) offence as charged. The evidence from the undercover operative "Mick" described a transaction in which the appellant sold drug bags at his home; a further transaction occurred between a third party and "Mick" outside the premises; and the appellant then accompanied others to seek additional supply at other locations, where he was unsuccessful. The Court was not satisfied that the evidence, properly analysed, established supply by the appellant on three or more separate occasions within the required 30-day window. As a result, the plea was set aside, the conviction quashed, and a new trial ordered.

The Court rejected the appellant's procedural challenge to the District Court arraignment. The Crown was entitled to prefer an indictment in the District Court following the committal, no objection had been taken at the time, and the appellant had pleaded guilty on arraignment. The District Court sentencing regime therefore applied, consistently with the Court's earlier reasoning in Reg v Doan [2000] NSWCCA 317.

Because the drug supply conviction was quashed, the sentence structure required reconsideration. The 18-month fixed term for the break, enter and steal offence had been partially cumulated with the drug sentence. Sully J held that a head sentence of 18 months for that offence was not excessive in itself, but that the appellant was plainly entitled to have a non-parole period fixed. The Court restructured the sentence accordingly, setting a non-parole period that expired on the day following the date of judgment, effectively authorising the appellant's immediate release to parole.

Orders Made

  • The appeal against conviction on Count 1 (the section 25A(1) drug supply charge) was allowed; the guilty plea was set aside; the conviction was quashed; and a new trial was ordered on that count.
  • Leave was granted to appeal against the sentence on Count 2 (break, enter and steal); the original sentence was quashed and replaced with imprisonment for 18 months commencing 27 March 2003 and expiring 26 September 2004, with a non-parole period commencing 27 March 2003 and expiring 22 April 2004.
  • The appellant was released to parole, with the parole conditions originally imposed by Bellear DCJ confirmed.

Key Takeaways

  • A conviction under section 25A(1) of the Drug Misuse & Trafficking Act 1985 (NSW) requires the evidence to establish, distinctly, that the accused personally supplied a prohibited drug on three or more separate occasions within 30 consecutive days. Evidence of related but legally distinct transactions by third parties does not satisfy that requirement.
  • Where a guilty plea is entered on an indictment without adequate factual support for a statutory element of the charged offence, the Court of Criminal Appeal may set aside the plea, quash the conviction, and order a new trial.
  • Procedural challenges to a District Court arraignment following committal from the Local Court will not succeed where no objection was taken at the time and the accused entered a plea on the indictment. The sentencing regime of the District Court, not the Local Court, governs in those circumstances.
  • When a primary custodial sentence is quashed on appeal, a co-existing fixed-term sentence that was partially cumulated upon it must also be re-examined to ensure the accused receives the benefit of an appropriate non-parole period.
  • The Court of Criminal Appeal confirmed the approach in Reg v Doan [2000] NSWCCA 317 regarding the applicable sentencing jurisdiction following committal to the District Court.

Legislation and Cases Referenced

Legislation:
- Drug Misuse & Trafficking Act 1985 (NSW), s 25A(1)
- Crimes Act 1900 (NSW), s 112(1)
- Justices Act 1902 (NSW), s 51A
- Criminal Appeal Act 1912 (NSW)
- Interpretation Act 1987 (NSW)

Cases:
- Reg v Doan [2000] NSWCCA 317
- Toro-Martinez (2000) 114 A Crim R 533
- Liberti (1991) 55 A Crim R 120
- Caruso (1988) 37 A Crim R 1
- Ellis (1986) 6 NSWLR 603
- Davies (unreported, NSWCCA, 16 December 1993)
- Ayyildiz & ors (unreported, NSWDC, 26 August 2002)