By Paul Gregoire and Ugur Nedim
New South Wales police officers attended the residence of Jason Fear on 3 August 2021 to conduct a routine inspection under the Child Protection (Offenders Registration) Act 2000 (NSW), which establishes the NSW Child Protection Register that lists former inmates who’ve offended against children in a sexual or other serious manner and are subject to post-sentence conditions when living in the community.
Officers found child abuse material in Fear’s home and detected a strong smell of cannabis. On obtaining a search warrant, NSW police located 7,589 grams of cannabis leaf stored in plastic bags and containers. And along with the illicit substance, the police found $18,400 in cash and a number of prohibited weapons, including nunchakus, a throwing star and a set of side handled batons.
The Court Attendance Notice issued to Fear, included one charge of supplying a prohibited plant under the state drug misuse regime, while the Notice of Committal suggested that the indictable drug offence involved the supply of an amount of cannabis that was greater than an indictable quantity, but it was less than a commercial amount.
Yet, despite being caught with over 7 kilograms of cannabis leaf in his possession, Fear was then charged and convicted over supply cannabis plant. And, on appealing his 2022 imposed sentence to the NSW Court of Criminal Appeal (NSWCCA) in September 2023, the offender learnt that the Crown had conceded that he’d been convicted over the wrong crime and a retrial was warranted.
Pleading guilty to six charges
Fear pleaded guilty to the six charges laid against his name. The first count was knowingly dealing with the proceeds of crime of a value less than $100,000, contrary to section 193B(2) of the Crimes Act 1900 (NSW), which carries up to 6 years gaol time.
Count two involved possess child abuse material, contrary 92H of the Crimes Act, which makes an offender liable to up to 10 years inside.
Fear also pleaded guilty to three counts of possessing a prohibited weapon, under section 7 of the Weapons Prohibition Act 1998 (NSW). And this offence carries up to 14 years behind bars.
The final offence was one count of supply cannabis plant, contrary to section 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act), which carries up to 10 years imprisonment and/or a $220,000 fine.
And Judge Karen Robinson then sentenced Fear to an aggregate sentence of 3 years and 9 months prison time at Penrith District Court on 28 September 2022.
Cannabis leaf not the plant
Fear then appealed his sentence to the NSW Court of Criminal Appeal, on the ground that it was manifestly excessive.
In a 19 September 2023 submission to the court, the Crown raised a concern over whether Fear should have been convicted of the offence of supply cannabis plant, under section 23 of the DMT Act, as despite the fact that he’d pleaded guilty to it and was subsequently convicted and sentenced in regard to it, there was no evidence that this crime had been perpetrated.
Fear then sought the permission of the court to appeal out of time against his supply charge.
Appealing out of time means outside of the legislated timeframe. Under the Criminal Appeal Act 1912 (NSW), a notice of intention to appeal must be lodged within 28 days of conviction or sentencing, while that must be followed by a detailed notice of appeal filed within 12 months.
NSWCCA Justice Natalie Adams explained that “cannabis plant” and “cannabis leaf” are two separately defined substances under section 3 of the DMT Act.
Cannabis plant means any growing plant of the genus Cannabis, while cannabis leaf is any part of a plant of the genus Cannabis, including the seed and achene, or the fruit of the plant. But cannabis leaf does not include cannabis oil, cannabis plant or “any fibre of any such plant or part from which the resin has been extracted”.
Cannabis leaf, therefore, is made up of parts of a cannabis plant that are no longer growing and are sold for consumption. These parts are often referred to as leaf, tip and heads. And cannabis leaf does not include extracts, such as cannabis oil or resin, which have stronger psychoactive properties.
As her Honour put it, the offence of supply cannabis leaf is an entirely different offence to supply cannabis plant, which is contained under section 23 of the DMT Act.
Section 25(1) of the DMT Act contains the offence of drug supply, which is the basic offence that a person is charged with when caught selling or providing drugs for consumption, such as cocaine, heroin, MDMA or cannabis leaf, to consumers in the community.
The resulting penalty for drug supply depends upon the type of drug supplied and the weight of it. The various legislated weights for each substance that is classed as illicit in NSW can be found under schedule 1 of the DMT Act. The various weight categories include a small quantity, an indictable quantity, a commercial quantity and a large commercial quantity.
The section 25(1) drug supply offence pertains to an amount that is less than the commercial quantity of a prohibited substance and more than an indictable amount. An indictable quantity of cannabis leaf is at least 1 kilogram, and a commercial quantity is at least 25 kilograms.
Section 32 of the DMT Act sets out that the maximum penalty for supplying more than an indictable amount of cannabis leaf, but less than a commercial quantity, can see a person liable to up to 10 years inside and/or a fine of $220,000.
Remitted to the lower court
“I am satisfied that the applicant could not in law have been convicted of the offence of supply cannabis plant,” said NSWCCA Justice Adams. “Accordingly, I accept the Crown concession that the applicant’s conviction on that offence should be quashed.”
Her Honour added that it had already been the position of the Crown that as the applicant had been provided an aggregate sentence for all six offences, that the overall sentence be quashed, and the case be remitted to the lower court for retrial with the offender being charged with the correct crime.
Justice Adams ordered on 25 September last year that the extension of time to appeal be granted, the original sentence be quashed and the case be remitted to the Downing Centre District Court. And NSWCCA Justices David Davies and Julie Ward agreed with their colleague’s orders.
