Regina v Glen Alan Jackson [2004] NSWCCA 110 | Case summary

The Section 25A(1) Matter 6 The substance of the prosecution case against the appellant came from evidence supplied by a police undercover operative code-named "Mick". "Mick" made two formal written statements, both of which were admitted without objection into evidence in the proceedings before Judge Bellear. The statements were dated respectively 14 and 15 June 2002. 7 In the statement dated 14 June "Mick" speaks of having met in Bourke on that day a man named Cooney who was, as it would seem, a recently acquired acquaintance of the appellant. What then happened is described as follows by "Mick": "11. About 8.20 pm we arrived in Bourke. Cooney directed me to a house on the corner of Short and Tarcoon Streets, Bourke. He stated it was "Jacko's" place. We drove into the driveway where Scott and I then followed him into the house. It was actually unit 1 at 42 Short Street, Bourke. "1/42" was written on the letterbox. The driveway to this unit is situated to the left of the front door as you face the premises. 12. On entering the house I was in the lounge room where an Aboriginal male, thin build, in his twenties was watching television on the couch. We greeted each other. I continued through a doorway and left into the kitchen where I was introduced to "Jacko" (Glen Jackson). He appeared to be in his thirties, with an unkempt goatee beard, he was of fair complexion and ginger/red hair to his shoulders, he was of medium build. 13. He produced two small clear resealable plastic bags containing an amount of white substance and sat them on a round hotplate which was on the kitchen bench to the left of the kitchen. Conversation between Cooney, Jackson and I began about these two small bags making reference to a number of issues such as price, weight and quality. To the best of my recollection I said, "How much are they?". Jackson said, "A hundred each. They're half weights. It's good shit. I haven't touched it." Cooney said to Jackson, "Give me the two for one seventy five". Jackson said, "No way ….. hundred each". Cooney then opened his wallet and took out two $50 notes which he gave to Jackson. Jackson took the money. Cooney picked up one of the bags with the white substance. Cooney said, "Who else has got more?" Jackson said, "One person … she's got five $50 deals, she'll sell them for 250. I'll take you there". Cooney said, "Will she take these?", taking out of his wallet four $100 paper notes. "I got a heap of these. They're stolen from Cobar. You can't use them there cause everyone knows where they're from. I know the bloke who's got about 15 grand worth, but he can't use them". Cooney put these notes back in his wallet. I said to Jackson, "A hundred bucks is expensive, but I'll come back if I don't get on anywhere else". Cooney said, "I'll try it and I'll let you know if it's any good. If I like it I'll buy the other bag also. If you want you can buy it off me". Cooney grabbed the second bag with white substance and placed it in his right track pants pocket. I couldn't hear exactly what Cooney was saying to Jackson as he was whispering. I gathered that Cooney was discussing with Jackson that it was repayment to some debt Jackson owed Cooney. General conversation continued." 8 It is not disputed by the appellant that this transaction, as thus described, constituted a supply of a prohibited drug by the appellant for financial reward. 9 "Mick" continues: "15. Soon after Scott, Cooney and I walked outside to the car. I turned to Cooney and asked him how he was feeling. He said, "I'm feeling it already it's good gear". I then took out two $50 notes from my bum bag, given to me earlier that day by Detective Senior Constable Hardwick and bought the other small bag of white substance off Cooney, which he produced from his right trackpants pocket. I placed this small bag of white substance in my bum bag with the rest of the money." 10 In my opinion this transaction, as thus described, constituted a supply by Cooney to "Mick" for financial reward to Cooney, of a prohibited drug. 11 "Mick" continues: "16. Jackson then came to the car. I drove, Scott sat in the front passenger seat, Cooney behind me and Jackson behind Scott. We drove around to a number of locations being directed by Jackson. I said, "Where are we going?" Cooney said, "We'll just go to a couple of places to see what we can get … there's a couple of places in Bourke. Some sell better goey than others, some you get more for your money, we can probably get some pot too. 17. We attended a number of locations, On two occasions Jackson would tell us to wait as he went for a walk. He returned soon after and was unsuccessful at each location. He would say, "No good there". 18. On one occasion we attended 83 Darling Street, Bourke where Jackson walked out and had a conversation with a female at the front door. This home was a light coloured weatherboard corrugated style exterior. It had a pathway along the centre of the front yard to the front door lined by roses on either side, and a number '83' in black was located on the face of the house to the right of the front door as you face the house. This female appeared to be in her thirties, 5'6" tall, of heavy build with short to shoulder length brown hair, olive complexion. She was wearing an orange t-shirt and light coloured pants. Prior to arriving at this location the conversation between Cooney, Jackson and I was in relation to this female having the five $50 deals. To the best of my recollection Jackson said, "This chick has got the 5 for 250". Cooney said, "See if you can get it for 150". I saw Cooney hand to Jackson a number of $50 notes prior to him exiting the vehicle. 19. Soon after Jackson returned to the car and sat in the rear nearside seat. Jackson said, "I got 'em". Cooney said, "How many?" Jackson said, "All five for one fifty" Cooney said, "Good". I looked around and saw Jackson handing Cooney a number of small clear resealable plastic bags containing white substance. I then drove following Jackson's directions." 12 The appellant does not dispute that this transaction, as thus described, constitutes a supply by him to Cooney of a prohibited drug. He does dispute, however, that "Mick's" narrative evidences a supply "for financial or material reward" in the sense contemplated by section 25A(1) of the DMT Act. 13 "Mick" concludes as follows his narrative of the events of 14 June: "20. We then attended another location in Tudor Street. I saw Cooney hand Jackson a number of $100 paper notes. Cooney said, "See what you can get with these". Jackson left the car and entered the house. He appeared after a short time with another male. They both came to the car. This male person was of Aboriginal appearance, thin build, appeared to be in his thirties, about 6 feet tall, wearing a dark tracksuit with a multi coloured baseball cap. Cooney introduced himself to this male person. He introduced himself as Eric Dixon. He then greeted me. Dixon said, "I see yous are driving around looking for the good stuff. Any time yous want come here and I'll look after you". After a short conversation Jackson got back in the car and we drove off. I looked at Cooney and Jackson and saw Jackson hand Cooney five small resealable plastic bags. I noticed one contained an amount of white substance and the other four green vegetable matter. Jackson said, "He gave me a hundred of goey and four deals of pot for the paper money". Cooney said, "That's not bad. The old notes for this … I can't use them anywhere else anyway". Cooney showed me five small resealable plastic bags, one containing an amount of white substance and the other four containing green vegetable matter." 14 The appellant does not dispute that this transaction, as thus described, constitutes a supply by him of a prohibited drug; but he contends that "Mick's" narrative does not evidence any financial or material reward in the sense contemplated by section 25A(1) of the DMT Act. 15 In his statement dated 15 June 2002 "Mick" describes various things that occurred on that day. He describes having travelled from Cobar to Bourke in the company of Cooney. He describes as follows what happened after their arrival in Bourke: "10. About 7.12 pm we arrived in Bourke. Cooney directed me to 1/42 Short Street where I saw Glen Jackson, who I had met the previous night at the same address. I stopped the car outside this location and Cooney got out of my car and met Jackson on the footpath where they were having a conversation. I waited in the car. There were 3 other Aboriginal males standing nearby on the footpath. Cooney came to the car and I said, "I'll go for a drive and I'll meet you back here in half an hour". I then drove from the location and around the township of Bourke. About 8.15 pm I returned to 1/42 Short Street, Bourke where Cooney and Jackson were standing on the footpath. Both came to the car. We all had a short conversation. I shook hands with Jackson. Cooney got into my car and we drove away. We had a conversation similar to: I said, "How did you go?" He said, "No problem. I got some hundreds and a couple of fifties". Cooney said, "Do you mind going to the hospital first so I can get a box". I said, "Yeah no worries". Cooney gave me directions. We arrived at the hospital at about 8.20 pm. Cooney got out, entered the hospital and soon returned. I waited in the car park." 11. We then proceeded towards Cobar. About 4 km out of Bourke I pulled over. We had a conversation similar to: I said, "Can I see what you got?" Cooney then produced from his trackpants pocket 6 small resealable plastic bags all containing an amount of white substance. Cooney said, "I got 4 one hundreds and three fifties for 100. I gave one fifty to Jacko for running me 'round". I said, "Give me one of the hundreds". He said, "Take your pick. Any one you want". I then took hold of all six bags and shook each of them. I selected one of the four one hundred dollar deals. I then took out two $50 notes from my jean pocket, money given to me earlier by Detective Senior Constable Hardwick, and gave it to Cooney. I then placed the small bag in my right jean pocket." 16 The appellant submits that the foregoing narrative is no evidence of any supply by him to Cooney. The appellant submits, further, that what was allegedly said by Cooney to "Mick" about Cooney's having given the appellant "one fifty ….. for running me 'round" is not admissible evidence against him, the appellant, for the reason that it was not said in his presence or hearing, and was not in any way otherwise adopted by him. 17 The appellant's position in sum is, therefore, that the first of the transactions above-described is lawfully available as one of the three transactions necessary to constitute a section 25A(1) offence; that the second and third transactions are not so available because there is no evidence that either or both of them involved, in the requisite statutory sense, financial or material reward to the appellant; and that the fourth transaction is not so available because there is no evidence implicating him in any supply, even within the extended definition provided by the DMT Act of the concept of supply. As to the second, third and fourth of the four enumerated transactions, the appellant contends that the statement by Cooney to "Mick" is no evidence against him of the relevant fact asserted in the statement. 18 The appellant's case is that it necessarily follows from the foregoing analysis that the whole of the evidence which was placed before Judge Bellear was not capable in law of supporting a charge based upon section 25A(1) of the DMT Act. It should be noted for the sake of completeness that the appellant submits, as well, that any such legal deficiency is not made good by anything said by him in any of the answers given by him during the course of an electronically recorded interview which took place on 21 September 2002 between him and the investigating police officers. I agree with this latter proposition. 19 It is convenient to begin the discussion of the appellant's submissions by citing the following proposition taken from the judgment of Spigelman CJ, (Newman and Adams JJ concurring), in Toro-Martinez (2000) 114 A Crim R 533 at 539(27): "This Court will only permit an appeal against conviction after a plea of guilty, to reiterate Davies : '…… if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused ……' " 20 The earlier decision to which the Chief Justice referred is Davies: unreported, NSWCCA, 16 December 1993. The Chief Justice's particular quotation from that decision is a quotation from the judgment of Badgery-Parker J, (Wood and Mathews JJ concurring), the relevant part of Badgery-Parker J's judgment reading: "If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial." 21 Spigelman CJ observes at paragraph (26) of his Honour's own judgment that Badgery-Parker J's statement of principle "…… has frequently been referred to with approval". 22 In Toro-Martinez the contention of that appellant was that his conviction following upon a plea of guilty should be set aside upon a basis which is sufficiently described by the Chief Justice as follows: "In the present case no attempt has been made to suggest that the appellant might not be guilty. The case for the appellant rises no higher than, if certain evidence had been rejected, he would not have been found to be guilty." (at 539 (28) ) 23 It seems to me, therefore, that the decision of Toro-Martinez itself did not require a precise analysis of the excerpt quoted above from the judgment of Badgery-Parker J in Davies. 24 That consideration might be of some present importance. Badgery-Parker J speaks of three particular factors: first, a full knowledge of the facts; secondly, a genuine recognition of guilt; and thirdly, a demonstration by the particular appellant, and to the satisfaction of the Court of Criminal Appeal, that there is a real question about his guilt. Badgery-Parker J has expressed himself in a way apt to suggest, as it seems to me, that all three of those things must be established before an appellant will be allowed to go behind his plea of guilty, and behind his conviction based upon that plea. 25 If that be indeed the view which Badgery-Parker J intended to express, then I would respectfully disagree with the view. The foundational jurisdiction and powers of this Court are in their entirety statutory, deriving from the Criminal Appeal Act 1912 (NSW). It is the positive duty of the Court, pursuant to section 6(1) of that Act, to set aside a conviction if the Court is of the opinion "……that on any ……ground whatsoever there was a miscarriage of justice". It seems to me that if an appellant can demonstrate that he stands convicted of an offence of which, as a matter of law, he cannot properly be convicted, then it must follow that there has been a miscarriage of justice in proceeding to that conviction. I think that such an approach is supported by the reasoning in Liberti (1991) 55 A Crim R 120: see per Kirby P, (Grove and Newman JJ concurring), at 121, 122; and Caruso (1988) 37 A Crim R 1: per Von Doussa J at 26. 26 I turn, then, to consider the proposition, fundamental to the case now made by the appellant, that his conviction upon Count 1 in the indictment cannot stand because there was no evidence capable of establishing three proscribed supplies by him for financial or material reward. 27 The full text of section 25A(1) of the DMT Act is: "A person who, on 3 or more separate occasions during any period of 30 consecutive days supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both." 28 At the hearing of the present appeal there was a deal of discussion of the question whether it is an essential element of a section 25A(1) offence that the person who carried out the three or more separate supplies of a prohibited drug other than cannabis, actually received himself the relevant financial or material reward. The appellant submitted that that question should be answered affirmatively, a proposition entailing that the section should be construed as though the words "financial or material reward" read "financial or material reward to that person". For the Crown it was contended that there is no warrant for so reading the section; and that if three separate supplies of a relevant drug within a period of 30 consecutive days are proved, then, provided only that it is clear that the supplies are commercial supplies, it does not matter how any financial or material reward which represents the valuable consideration for such commerce is actually received, or by whom it is ultimately received. It is to be noted that no consideration was given in the Court below to this important question: not by the Crown, not by the solicitors assigned to represent the appellant, and not by the appellant himself. 29 I would myself be content to decide the point upon the basis that there is no ambiguity about the wording of the section; and that the ordinary and grammatical reading of the terms of the section carry by necessary implication the proposition that it is the person who actually has done the relevant supplying who must be shown to have gained something out of it by way of financial or material reward. 30 In that connection, the Crown drew the attention of the Court to a decision of his Honour Judge Blackmore of the NSW District Court: Ayyildiz & ors.: unreported, NSWDC, 26 August 2002. His Honour concluded that "…. It is not an element of the offence under section 25A that the accused himself financially or materially profited from the transaction". 31 His Honour does not say in terms in his judgment that there is, in his Honour's opinion, any patent ambiguity about the expression "for financial or material reward", but his Honour does discuss the Second Reading speech on the Bill which introduced into Parliament the amendment that became ultimately section 25A of the DMT Act. I infer, accordingly, that his Honour did think that there was some patent ambiguity about the phrase so as to make relevant, as provided by section 34 of the Interpretation Act 1987 (NSW), a consideration of such material extraneous to the statute itself. 32 In order to test his Honour's conclusion, and the reasoning which underpins it, I too have considered the relevant portions of the relevant Second Reading speech. Those portions read as follows: "The new offence plugs a potential loop-hole under the existing law. It targets dealers who have organised their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985. Presently, it could be argued that dealers who carry small quantities of prohibited drugs can avoid serious penalties under the Act as the penalty structure is largely based on quantity. The amount of drugs which are supplied is immaterial to an offence under section 25A, either within each individual offence or in total. Furthermore, the offence is constituted by the supply of any prohibited drug - other than cannabis - within a 30-day period. In other words, it is immaterial whether the same drug is supplied on the three separate occasions. Once again, the provision is framed in a way which will prevent dealers from evading the ambit of the provision on technical grounds. The other elements of the new offence - including the element of 'for financial or material reward' - will need to be proven in the usual way; that is, proven beyond reasonable doubt by the prosecution. The Bill …… provides a new weapon in the armoury of police against those who persistently engage in the commercial supply of hard drugs, without restrictive emphasis upon the quantity supplied on each occasion. It steps up the campaign against dealers where it matters - on the streets - and facilitates the apprehension, arrest and incarceration of such dealers." [Legislative Assembly of NSW: Hansard: 7 May 1998 at 4689, 4690] 33 It seems to me that a fair reading of that material suggests clearly that at every stage of the legislative consideration of the proposed new section the intended target was not commercial drug dealing as an abstract generality, but rather the individual who was making a profit out of indulging, to the prescribed statutory extent, in specifically identified and demonstrated instances of commercial drug supply. It seems to me that if that view is correct, then it must follow that the reference in section 25A to "financial or material reward" is to be understood as referring to a financial or material reward to the person who is shown to have carried out the three or more supplies as defined in the section. I have come to the conclusion, therefore, that the decision of his Honour Judge Blackmore is, with respect to his Honour, erroneous and should not hereafter be followed. That being so, I am of the opinion that the entirety of the evidence before his Honour Judge Bellear was not capable of establishing in law the commission by the appellant of an offence contravening section 25A of the DMT Act. 34 In my opinion the appeal by the appellant against his conviction on Count 1 should be allowed. 35 It then becomes necessary to consider what consequential orders ought properly to be made. 36 It is convenient to begin that discussion by returning to the judgment of Badgery-Parker J, earlier referred to, in Davies. That judgment suggests that the appropriate orders are to set aside the plea of guilty, to quash the conviction and to order a new trial. The contention of the present appellant is that the proper orders would be to set aside the plea of guilty, to quash the conviction and to enter thereupon a judgment of acquittal. 37 In my opinion the Court should make in the present case orders of the kind suggested in the judgment of Badgery-Parker J. That is so for the following reasons. 38 First, the DMT Act contains an extraordinarily wide extended definition of the notion of supply. That definition is, in my opinion, clearly capable of embracing the activities of the present appellant in connection with the first, third and fourth of the four transactions, occurring on 14 June, that have been discussed earlier in this judgment. 39 Secondly, and pursuant to section 25A(4) of the DMT Act, if a person is put upon his trial for an offence against section 25A(1), and the jury is not satisfied that that offence has been established, but is satisfied that the accused person has, in respect of any of the occasions relied on as evidence of the commission of the section 25A(1) offence, committed a relevant supply offence, then the jury may acquit the accused person of the section 25A(1) offence and find him guilty of the relevant supply offence, whereupon he may be punished accordingly. A relevant supply offence, for the purposes of section 25A(4) is any offence under the DMT Act, other than a section 25A(1) offence, relating to the supply of a prohibited drug. 40 I do not see it as being the proper function of this Court to speculate about what might happen in fact in the wake of an order that the appellant be returned to the District Court for re-trial following upon what must be assumed will be his plea of not guilty when he is re-arraigned on Count 1 of the indictment. Given the appellant's undoubted involvement at the relevant time in the drug trade in the Far West of this State, I do not see that there is any injustice to him in so disposing of the present appeal.

Count 2: The Application for Leave to Appeal against Sentence 41 The appellant does not contend that he was in any sense wrongly convicted, upon his plea of guilty, of the offence charged against him in Count 2 of the indictment. 42 No less than six intended grounds of appeal against sentence were notified. Grounds 1 and 2 concern only the sentence that was passed in connection with the section 25A(1) conviction. It is no longer necessary to consider those particular grounds. I can deal briefly and as follows with the remaining grounds: · Ground 3 43 Complaint is made of an alleged failure on the part of his Honour to take properly into account evidence of a mental disorder from which the appellant was suffering at the relevant time. It suffices to say that there was before his Honour a body of uncontradicted evidence to the effect that the appellant was suffering at the relevant time from a condition of paranoid schizophrenia, for which he was being treated with an anti-psychotic drug. The relevant treating specialist was insistent that the appellant needed to maintain his medication in order to keep his condition acceptably under control. It is submitted, and I agree with the submission, that the learned sentencing Judge did not explain in any precise way how, if at all, his Honour was proposing to take into account this undoubted condition of the appellant. I do not think, however, that it can be said fairly that his Honour did not take account of it at all. Whether his Honour took, in the event, proper and reasonable account of the appellant's condition is best weighed up in conjunction with Ground 6. · Ground 4 44 Complaint is made that the learned sentencing Judge did not properly take into account the significance of the appellant's admissions in relation to the charge preferred in Count 2. This ground rests upon the proposition that the appellant was entitled to a discount of the kind discussed by Street CJ in his Honour's judgment in Ellis (1986) 6 NSWLR 603 at 604. It suffices to say that the facts of Ellis are light years removed from the facts of the present case. I do not see any proper basis upon which the kind of discount authorised in the very special circumstances obtaining in Ellis could have been properly extended to the present appellant. · Ground 5 45 This ground is based upon what is, in my view, a clear imprecision in the particularising of the stolen property in, respectively, the original Local Court charge sheet and the relevant count in the District Court indictment. The point of Ground 5 is that a proper assessment of the value of the property to the stealing of which the appellant actually admitted, would have taken that value below the indictable threshold, so that the charge itself could have been dealt with in the Local Court, where the available sentencing range would have been more advantageous to the appellant. The short answer to this proposition is that the Crown was entitled to arraign the appellant in the District Court; no objection was taken to that arraignment; and the appellant pleaded guilty on arraignment. The sentencing regime within which his Honour Judge Bellear had therefore to deal with the appellant on his plea was the regime proper to the District Court and not the regime proper to the Local Court. The issues raised by this Ground have been considered authoritatively by this Court: Reg v Doan [2000] NSWCCA 317: see in particular paragraphs [37] - [42]. · Ground 6 46 The thrust of this ground is that the sentence passed upon Count 2, if not vitiated by patent error, is vitiated by latent error. 47 I am not persuaded that a head sentence of imprisonment for 18 months is, as such, excessive. Because of the way in which the sentences on Counts 1 and 2 were structured, the sentence for the break, enter and steal offence was passed in the form of a fixed sentence. Since the sentence which was passed in respect of the section 25A(1) offence must fall with the conviction, it is, obviously I should have thought, necessary to look again at the sentence for the break, enter and steal offence. Given the dating of the fixed term of 18 months, and what I consider to be the plain entitlement of the appellant to have fixed, now, an appropriate non-parole period, it seems to me that practical justice is done by orders having the effect of passing a head sentence of imprisonment for 18 months with a non-parole period expiring on the day following the day on which this judgment is handed down.

Regina v Glen Alan Jackson

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Judgment (12 paragraphs)

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