Case facts

The client was charged with three charges being possess prohibited drug, methylamphetamine, also known as “ice”; goods in custody of an item of clothing; and shoplifting various items including perfume. Originally the value of the goods the subject of the shoplifting charge was quite large as police believed that a number of expensive fragrances that were in our client’s possession had been stolen from the shop. We then made written representations to the police where we provided statements from our client’s place of work stating that those bottles of perfumes found in his possession belonged to their company. Police investigated further and agreed to take those items off the Court Attendance Notice.


Subjective circumstances

Our client was a permanent resident who was waiting to take steps to become an Australian citizen once the criminal proceedings were over. He was concerned that a criminal conviction might impact upon the “character test” set out in s.501 of the Migration Act 1958. The client was also required to travel to China to undertake training as his company did the majority of their training in that country. A Visa application form of the Peoples Republic of China was produced to the Court and it was pointed out to the Magistrate that a certain question required the client to answer whether he had a criminal record in China or any other country.


Potential penalties

Our client was charged with possess prohibited drug under s.10(1) Drug Misuse & Trafficking Act 1985, having goods in his personal custody reasonably suspected of being unlawfully obtained under s.527C(1)(a) of the Crimes Act 1900, and larceny under s.117 of the Crimes Act 1900. The penalty for possess prohibited drug is a fine of $2,200.00 or imprisonment for a term of two years or both. For the charge of unlawfully obtain goods the penalty is a $550.00 fine, imprisonment for six months or both. The maximum penalty for larceny is imprisonment for five years. As this matter was being heard in the Local Court and the value was less than $2,000, then section 268 Criminal Procedure Act applies and a maximum penalty of 50 penalty units can be imposed.


Local Court proceedings

We appeared for the client and handed up references from the client’s partner, employer and siblings. The Magistrate was then asked to take into particular account the ramifications that a conviction in any of these matters would have on his ability to travel to China for his employment and the possibility that it could affect his Visa status which would in turn affect his family who were also living in Australia with him. We cited the case R v Mauger [2012] NSW CCA 51. This case is authority for the principle that a bond pursuant to s.10 of the Crimes (Sentence Procedure) Act has the same effect as a bond imposed pursuant to s.9 of the Crimes (Sentencing Procedure) Act. This is particularly so when the imposition of a conviction will have serious ramifications on a person’s ability to maintain their employment.

His Honour then went on to find the offence proven and dealt with all three matters under s.10 of the Crimes (Sentencing Procedure) Act and did not record a conviction. This meant the client was not convicted of any of the offences and the matter was dismissed conditionally upon the client entering into a good behaviour bond for a period of 18 months.


Why you need an expert criminal lawyer

Offences of this type are prevalent in our society. In order to have the best opportunity to obtain a great result you will require a solicitor that has excellent knowledge of the law relating to such matters including excellent preparation and advocacy skills. Our experienced criminal defence lawyers and accredited specialist in criminal law can help you achieve the best result possible.


Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.