Case facts
Our client was going to attend a dance party at Darling Harbour and had purchased a small quantity of amphetamine for his own use. When he attended the Darling Harbour area he noticed some drug detection dogs (sniffer dogs).
Fearing that he would be detected with drugs on him our client offered his drugs to his friends who put their fingers into his bag of amphetamine and consumed small quantities of the drug. This action was observed by Police who arrested our client and he was charged with drug possession pursuant to section 10 of the Drug Misuse and Trafficking Act, and drug supply pursuant to section 25 of the Drug Misuse and Trafficking Act.
The potential penalties include imprisonment for up to two years and fines of up to $2,200 for each offence.
Prior criminal record
In 2008 our client had been charged with possession of three tablets of ecstasy. The case was dismissed under section 10 of the Crimes (Sentencing Procedure) Act.
Interestingly our client had the matter dealt with by writing a letter to court and not attending court himself. This would prove important in the final determination of this matter. Also of interest is that three ecstasy tablets would almost certainly weigh more than the traffickable quantity of a prohibited drug which would enable the police to charge deemed supply of a prohibited drug.
Local Court proceedings
Our client was represented by Phillip Gibson, Accredited Specialist in Criminal Law. Prior to the matter going to court, Mr Gibson negotiated with the prosecution so that the charge of possession of the amphetamine was dropped. Our client pleaded guilty in the Local Court to supplying amphetamine. The act of supply was committed by offering the drug to his friends. He obtained some character references for use at court.
At the Downing Centre Local Court our client was convicted and ordered to enter into a bond under Section 9 of the Crimes (Sentencing Procedure) Act for a period of two years.
Mr Gibson advised an appeal to the District Court on the basis that he could persuade the District Court Judge to set aside the conviction and deal with the matter by imposing a bond under section 10 of the Crimes (Sentencing Procedure) Act. That is, a bond without conviction.
The appeal
At the appeal Mr Gibson called our client to give evidence. Our client gave evidence of the circumstances of the drug supply and about the fact that when he was first charged with drug possession in 2008 he did not attend court but adopted the procedure set out in the police forms and filled out the form to plead guilty.
By doing this he did not attend court and therefore did not suffer the denunciation and reprimand from the Magistrate when his matter was dealt with. Our client also gave evidence about his employment and that he had stopped all use of illegal drugs since being arrested for this offence. He had plans for the future including getting married, opening his own business and travelling overseas.
During submissions, the Presiding Judge expressed concerns about our client’s previous lenient treatment by the Local Court and the fact that in facing detection he decided to supply the drugs to his friends as opposed to taking some other action like disposing of the drugs.
Mr Gibson addressed these concerns of the Judge and using authorities of the NSW Court of Appeal (Hoffenberg-v-The District Court of New South Wales) and NSW Court of Criminal Appeal (R-v-Mauger), Mr Gibson argued that it was an appropriate exercise of discretion to set aside the conviction and order our client to enter into a bond under section 10 Crimes (Sentencing Procedure) Act.
The Judge accepted Mr Gibson’s submissions and allowed the appeal against the sentence, set aside the conviction and ordered our client to enter into a good behaviour bond under section 10 for a period of two years.
