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Court of Criminal Appeal 25 September 2023

Fear v R

[2023] NSWCCA 238

Drugs
CRIMINAL LAW CONVICTION APPEAL NO EVIDENCE TO ESTABLISH THAT OFFENCE CROWN CONCEDES ERROR

Citation: Fear v R [2023] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 25 September 2023
Judge(s): Ward P, Davies J, N Adams J (judgment of N Adams J)

Background

The applicant was sentenced in the Penrith District Court on 28 September 2022 to an aggregate term of 3 years and 9 months imprisonment across six offences. Those offences included knowingly dealing with proceeds of crime, possession of child abuse material, three counts of possessing a prohibited weapon, and one count of supplying a cannabis plant contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW).

The supply charge arose from a police search of the applicant's residence in August 2021, which uncovered 7,589 grams of cannabis leaf. The charge documents referred to "supply a prohibited plant, namely cannabis," and the agreed facts in the District Court accurately described the substance as cannabis leaf. No evidence was ever adduced that the applicant had possessed or supplied a cannabis plant.

The applicant initially sought leave to appeal solely on the ground that the aggregate sentence was manifestly excessive. In its written submissions, the Crown raised a separate concern: the applicant had pleaded guilty to, and been convicted and sentenced for, an offence that the evidence could not legally support.

  • Whether the applicant's conviction for supplying a cannabis plant under s 23(1)(b) of the Drug Misuse and Trafficking Act could stand where the evidence disclosed only the supply of cannabis leaf.
  • Whether an extension of time to appeal against that conviction should be granted.
  • What orders were appropriate to dispose of the appeal, including the fate of the aggregate sentence.

Decision

N Adams J, with whom Ward P and Davies J agreed, accepted the Crown's concession that the conviction for supply of a cannabis plant was legally unsound. The court found that "cannabis plant" and "cannabis leaf" are distinct defined terms under the Drug Misuse and Trafficking Act. A cannabis plant is a growing plant of the genus cannabis, while cannabis leaf covers parts of the plant that are not growing plants, not cannabis oil, and not extracted fibre. Supplying cannabis leaf is an offence under s 25(1), not s 23(1)(b).

Because all proceedings at sentencing were conducted on the basis that the applicant had supplied cannabis leaf, and no evidence of any supply of a cannabis plant was before the court, the applicant could not in law have been convicted under s 23(1)(b). The court quashed that conviction, relying on R v Liberti (1991) 55 A Crim R 120.

The court also quashed the aggregate sentence. Both parties agreed that the appropriate course was to remit the matter to the District Court so the applicant could be charged with the correct offence by way of ex officio indictment and be resentenced on all outstanding matters.

Orders Made

  • Extension of time to appeal against the conviction for supply of cannabis plant under s 23(1)(b) granted.
  • Appeal against that conviction allowed; conviction quashed.
  • Aggregate sentence imposed by the Penrith District Court on 28 September 2022 quashed.
  • Matter remitted to the Downing Centre District Court for mention on 29 September 2023.

Key Takeaways

  • Under the Drug Misuse and Trafficking Act 1985 (NSW), "cannabis plant" and "cannabis leaf" are distinct defined categories that attract liability under different provisions: supply of a cannabis plant falls under s 23(1)(b), while supply of cannabis leaf falls under s 25(1).
  • A plea of guilty to a charge does not cure a fundamental mismatch between the offence charged and the evidence available; where no evidence supports the elements of the offence charged, the conviction cannot stand in law.
  • The Court of Criminal Appeal confirmed that an extension of time to appeal against conviction can be granted even where the original ground of appeal concerned only sentence, provided a proper basis for the conviction appeal emerges subsequently.
  • Where a Crown concession that a conviction is legally insupportable is properly made and accepted, the court will quash both the conviction and any aggregate sentence of which that conviction formed a part.
  • Quashing an aggregate sentence in these circumstances does not end the matter; the court remitted the proceedings so the applicant could face a correctly framed charge and be resentenced accordingly.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(b), 25(1)
- Crimes Act 1900 (NSW), ss 92H(2), 193B(2)
- Criminal Appeal Act 1912 (NSW), s 5
- Weapons Prohibition Act 1988 (NSW), s 7(1)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- R v Liberti (1991) 55 A Crim R 120