Case facts
At about 6:30 a.m. on a Wednesday morning police received reports of a male trying to force his way into a house. Upon investigating the matter police located our client, who matched the description of the male, sleeping on a park bench nearby.
Police approached him. He told them that he had been drinking last night and did not remember much. Police formed the suspicion that the accused could have consumed drugs as his behavior was erratic and disorderly. For reasons unknown, the police searched our client. A quantity of cocaine in a small resealable bag allegedly fell from our client’s pocket during the search. The bag had a gross weight of just over one gram – slightly above the “small quantity” specified in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW). He was charged with drug possession pursuant to section 10 of this Act and issued with a Field Court Attendance Notice.
Drug Misuse and Trafficking Act Schedule 1
The Drug Misuse and Trafficking Act 1985 (NSW) is the primary legislation in the regulation and prohibition of the cultivation, manufacture, supply, possession and use of prohibited drugs in New South Wales.
Schedule 1 of the Drug Misuse and Trafficking Act categorises the various quantities of different prohibited drugs as either:
- Traffickable quantity.
- Small quantity.
- Indictable quantity.
- Commercial quantity.
- Large commercial quantity.
- Discrete dosage unit (DDU).
The quantity of the specific drug governs the Act’s application to an individual charged with a drug-related offence, including whether the matter will be treated as a summary or indictable offence.
Potential penalty
The legislation provides a maximum penalty of two years imprisonment and/or a fine of up to $2,200 – including available sentencing options in between, such as a good behaviour bond, Community Service Order, Intensive Corrections Order, and Suspended Sentence. A conviction for a drug offence could have also had disastrous consequences for his future – as it can for any person. Often the accused person has not considered how a conviction may impact upon their work, travel – despite knowing that drug use was a criminal act, as well as potentially harmful to health.
Police facts sheet
Upon receiving the Police Facts sheet our client was distressed to see that detailed reference was made to him knocking on doors and trying to force his way into a house, despite no such charges being laid. The Police Facts also made reference to a conversation our client had with the arresting officers making admissions to the offence, as well as a notebook statement which our client had signed as a true and accurate record of this conversation. As our client was unable to recall making admissions he did not feel comfortable entering a plea of guilty without seeing the notebook statement.
Upon request, police produced the notebook statement referred to in the Police Facts sheet. Upon receiving this information, our client accepted that the alleged conversations in the Police Facts were accurate.
Legality of the search
Due to his level of intoxication, our client was also unable to remember why police had subjected him to a search. We discussed with our client whether it would be prudent to challenge the legality of the search. Police can only stop, search, and detain you if they have reasonable grounds to believe you are carrying something illegal, stolen items, drugs, things obtained illegally, dangerous articles, or things police believe may be used illegally, such as tools for theft or weapons.
Under section 138 of the Evidence Act 1995 (NSW) improperly obtained evidence is not to be admitted unless “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”
Plea of guilty to amended facts
Our client instructed us that he did not wish to challenge the legality of the search but instead wanted to enter a plea of guilty. However he remained distressed that the Police Facts contained irrelevant and prejudicial information. We drafted and sent Representations (a written request for the amendment of the fact sheet) to the police.
No response was received to our Representations by the time the matter was listed for sentence. Instead of seeking a further adjournment and incurring more costs for our client, we negotiated with the Police Prosecutor at court on the day. The Prosecutor agreed to amend the Police Facts as requested and we entered a plea of guilty to this new set of Facts. We had already obtained a number of character references and we had prepared her submissions which enabled the matter to proceed straight to sentence.
Case result
We made submissions to the court as to why no conviction should be recorded having regard to the small quantity of drug, our client’s prior good character, lack of criminal antecedents, prospects of rehabilitation and contrition and remorse. Since the offence, our client had attended a preliminary assessment with an alcohol counselor to discuss methods to reduce his drinking.
The Local Court Magistrate was understandably concerned by the prevalence of drugs in the community, however impressed at the proactive steps our client had taken since the offence.
The Magistrate decided to dismiss the charge on the condition that our client entered into a good behaviour bond for a period of 12 months. He was also ordered to contact his closest Probation and Parole office for the purposes of supervision during the bond to assist in abstinence from drug use.
This was an excellent result and our client was incredibly happy to have avoided a criminal conviction. The majority of people coming before the court for offences such as this fail to consider the potential consequences of a criminal conviction and criminal record. In addition to the penalties set out above, other consequences include employment restrictions, higher insurance premiums, and travel restrictions.
Nyman Gibson Miralis provides expert advice and representation for all drug-related offences.
Contact us if you require assistance.
