Fear v R [2023] NSWCCA 238

Fear v R [2023] NSWCCA 238 · Read the judgment on AustLII

Catchwords: Cannabis – leaf vs plants

This decision serves as an important reminder that there is a difference in the definition – and therefore the offence – that applies for supply of cannabis leaf, versus supply of cannabis plants.

The applicant was sentenced in the District Court for, amongst other things, an offence under s 23(1)(b) Drug Misuse and Trafficking Act 1985 (‘DMTA’), relating to cannabis; just exactly how that cannabis should be described is the important part of the appeal. Relevantly, what police found when they were searching the apartment was a little over 7.5kg of cannabis leaf. The Court Attendance Notice described the offence as ‘Supply cannabis > indictable quantity & < commercial quantity’. However, the offence in s 23 relates to prohibited plants.

As the Court (N Adams J, with whom Ward P and Davies J agreed) observed, both ‘cannabis plant’ and ‘cannabis leaf’ are defined in s 3 of the DMTA. ‘Cannabis plant’ is relevantly defined as being a growing plant of the genus cannabis, whereas cannabis leaf is defined as any plant or part of a plant of the genus cannabis, but does not include cannabis oil, any fibre from which the resin has been extracted, or cannabis plant (at [15]). The supply of cannabis plants is an entirely different offence to the supply of cannabis leaf: the latter is to be found in s 25, not s 23 (at [16]). On that basis the applicant could not have been convicted of the supply of cannabis plant under s 23(1)(b) of the DMTA, his conviction for that offence was quashed (at [17]), and the matter remitted to the District Court so that the correct charge can be laid by way of ex officio indictment and the applicant resentenced (at [18]).

Experienced practitioners might note that the maximum penalty is the same for both offences; it is hard to know where there would be any significant difference in sentencing outcomes depending on the offence. Just the same, the CCA has, in this decision, signalled that there is some need to be vigilant.