Fear v R [2023] NSWCCA 238

Fear v R [2023] NSWCCA 238

The applicant was convicted and sentenced for supplying cannabis plant under s 23(1)(b), but the evidence and agreed facts established only possession or supply of cannabis leaf. Because supplying cannabis leaf is a different offence under s 25(1), the applicant could not in law have been convicted of supplying cannabis plant; that conviction had to be quashed, and the aggregate sentence for all six offences was also quashed and the matter remitted.

Jurisdiction
Australia
Judgment Date
25 September 2023
Procedural Posture
Criminal Conviction Appeal and Sentence Appeal / Application for Extension of Time to Appeal Against Conviction and Appeal in the Court of Criminal Appeal
Outcome
Extension of time granted; conviction appeal allowed; aggregate sentence quashed; matter remitted to the District Court for mention.
Legal Topics
['conviction Appeal' 'sentence Appeal' 'supply of Cannabis Plant' 'supply of Cannabis Leaf' 'aggregate Sentence' 'extension of Time']
['criminal Law'] ['conviction Appeal' 'sentence Appeal' 'supply of Cannabis Plant' 'supply of Cannabis Leaf' 'aggregate Sentence' 'extension of Time']

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Procedural Posture

Criminal Conviction Appeal and Sentence Appeal / Application for Extension of Time to Appeal Against Conviction and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether an extension of time should be granted to appeal against the conviction for supply of cannabis plant contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW).' 'Whether the applicant could in law have been convicted of supplying cannabis plant when the evidence showed cannabis leaf.' 'Whether the aggregate sentence should be quashed after one of the six convictions was quashed.']

Ratio Decidendi

The applicant was convicted and sentenced for supplying cannabis plant under s 23(1)(b), but the evidence and agreed facts established only possession or supply of cannabis leaf. Because supplying cannabis leaf is a different offence under s 25(1), the applicant could not in law have been convicted of supplying cannabis plant; that conviction had to be quashed, and the aggregate sentence for all six offences was also quashed and the matter remitted.

Court Disposition

Extension of time granted; conviction appeal allowed; aggregate sentence quashed; matter remitted to the District Court for mention.

Orders

  • ['The extension of time to appeal against the conviction for supply of cannabis plant contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW) is granted.' 'The appeal against conviction for the offence of supply cannabis plant contrary to s 23(1)(b) of Drug Misuse and Trafficking Act is allowed.'...