Regina v Glen Alan Jackson [2004] NSWCCA 110

New South Wales Court of Criminal Appeal

CITATION : Regina v Glen Alan Jackson [2004] NSWCCA 110 HEARING DATE(S) : 7 April 2004 JUDGMENT DATE : 21 April 2004

JUDGMENT OF : Wood CJ at CL at 1; Sully J at 2; Hislop J at 49 DECISION : See para 48 [1] and [2] of judgment

Drug Misuse & Trafficking Act 1985 (NSW) Crimes Act 1900 (NSW) LEGISLATION CITED : Justices Act 1902 (NSW) Criminal Appeal Act 1912 (NSW) Interpretation Act 1987 (NSW) Toro-Martinez (2000) 114 A Crim R 533 Davies: unreported, NSWCCA 16/12/93 Liberti (1991) 55 A Crim R 120 CASES CITED : Caruso (1988) 37 A Crim R 1 Ayyildiz & ors: unreported, NSWDC, 26/8/02 Ellis (1986) 6 NSWLR 603 Reg v Doan [2000] NSWCCA 317 PARTIES : Regina Glen Alan Jackson FILE NUMBER(S) : CCA 60285/03 COUNSEL : P. Miller - Crown H. Dhanji - Appellant SOLICITORS : C. K. Smith - Crown C. McKenzie - Appellant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0211 FILE NUMBER(S) : LOWER COURT Bellear DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60285/03

WOOD CJ at CL SULLY J HISLOP J

21 April 2004

REGINA v GLEN ALAN JACKSON Judgment 1 WOOD CJ at CL: I have read in draft form the judgment of Sully J. I agree with the orders proposed, and with the reasons of his Honour. 2 SULLY J: On 5 December 2002 the present appellant, Mr. Jackson, pleaded guilty before a Local Court Magistrate to two charges. One charge alleged that the appellant, on or about 14 June 2002, supplied a prohibited drug, namely amphetamine, on three or more separate occasions during a period of 30 consecutive days, and for financial or material reward. Such an offence contravenes section 25A(1) of the Drug Misuse & Trafficking Act 1985 (NSW), (hereinafter the DMT Act), and it attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. The other charge alleged that the appellant, on or about 27 June 2002, broke and entered a particular workshop at a particular farming property, and while in the said workshop stole certain property. The charge, as originally laid, particularised as having been stolen, "a honda aud runner motor cycle, generator, welder, 4 wheel trailer, a quantity of tools, drop saw, and other assorted spanners and sockets". Any such offence contravenes section 112(1) of the Crimes Act 1900 (NSW); and it attracts upon conviction a statutory maximum penalty of imprisonment for 14 years 3 The appellant having entered those pleas of guilty, he was committed pursuant to section 51A of the Justices Act 1902 (NSW) to the District Court for sentence. He appeared in that connection in the Bourke District Court before his Honour Judge Bellear. Those proceedings on sentence occupied part of 26 and 27 March 2003. At the commencement of the proceedings it was indicated to his Honour that the original charge sheet had wrongly nominated amphetamine as the proscribed drug in connection with the section 25A(1) charge; whereas subsequent analysis had shown that the drug had been in fact methylamphetamine. In order to rectify that error in the original charge, the appellant was formally arraigned before Judge Bellear upon an indictment containing two counts preferred respectively pursuant to section 25A(1) of the DMT Act and to section 112(1) of the Crimes Act. The property which was charged as having been stolen in connection with the section 112(1) charge was particularised in the second count of the indictment as: "a quadrunner motor cycle, a generator, a welder, a trailer and a quantity of tools". 4 The appellant, when arraigned upon that indictment, pleaded guilty to each of the two counts contained in the indictment. On 28 March 2003 he was formally convicted and was sentenced, effectively, to imprisonment for 4 years with a non-parole period of 2 years. The sentence actually passed in connection with the section 112(1) conviction was one of imprisonment for 18 months. The sentence actually passed in connection with the section 25A(1) conviction was one of imprisonment for 3 years and 6 months with a non-parole period of 18 months. There was a partial cumulation of the sentences so as to yield the overall result previously noted. 5 The appellant now challenges his conviction on the section 25A(1) charge; and he applies as well for leave to appeal against the sentences passed upon him.