How to Avoid a Criminal Conviction for Drug Possession or Supply

Our video and Blog post below talks about How to Avoid a Criminal Conviction for Drug Possession or Supply.

I am often asked how Sydney Criminal Lawyers® helps clients avoid criminal convictions for relatively serious drug offences such as supplying a dozen or more ‘ecstacy’ tablets or several grams of ‘speed’.

If someone pleads guilty to a criminal offence, they can avoid a conviction by convincing the magistrate to grant a ‘section 10 dismissal or conditional release order‘.

This is a basic outline of how to get non conviction orders for drug cases.

The first step is to carefully read the police papers, request further details from police if necessary and obtain detailed information from the client.

For ‘drug supply’ cases, the initial questions to consider are:

1) Was the police search ‘legal’?

2) Is there any evidence of ‘actual supply’; in other words, any evidence that the client was actually supplying drugs to a particular person/s; and

3) Did the client admit to ‘possessing’ the drug.

If:

(1) the police search was ‘legal’, and

(2) there is little or no evidence of ‘actual supply’, and

(3) the client has admitted ‘possessing’ the drug,

then a detailed letter should be written to the Local Area Commander of Police requesting withdrawal of the supply charge on the basis that:-

a) there is no specific evidence of actual supply;

b) there is little or no circumstantial evidence of supply eg no very large sums of cash, no multiple mobile phones, no people calling or SMSing for drugs etc; and

c) the client is a ‘drug user’ rather than a drug supplier, and is being referred for help.

I am constantly surprised that many criminal lawyers don’t write these letters and just advise clients to plead guilty.

This can result in harsh sentences.

Failing to push for the ‘supply’charge to be dropped is bad practice and, we feel, a breach of a criminal lawyer’s duty to their client.

While the letter to police is being prepared, clients should be referred to counselling or a drug treatment program such as the MERIT Program.

Once the supply charge is dropped, the client should be asked to obtain up to 3 character references and perhaps prepare a ‘letter of apology’ to the court.

We often guide clients on the preparation of character references and their letters of apology.

On the ‘sentencing date’, the criminal lawyer should address the Magistrate on a broad range of matters, including:

– the value of the guilty plea,

– the lack of previous convictions,

– the client’s employment, residential arrangements and other personal circumstances,

– the incident itself, including whether the client made immediate admissions to police,

– any positive steps taken since the offence eg admitting it to people and getting character references, any counselling etc, the contents of any letter of apology etc,

– the fact that he or she has taken responsibility for the offence and understands the dangers of drugs and the serious social consequences,

– the potential impact of any criminal conviction upon him or her, especially in terms of career or travel, and

– the unlikelihood of any re-offending.

In addition, Magistrates should be reminded about the ‘inequity of the Cannabis Cautioning Scheme’.

What is meant by the ‘inequity of the Cannabis Cautioning Scheme’?

The High Court of Australia has said that the drug type should not make a difference to the sentencing process; Adams v The Queen [2008] HCA 15; see also NSWCCA in R v Dang [2005] NSWCCA 430.

So, people charged with possessing drugs such as cannabis, ecstacy, heroin, speed etc should be treated in the same way.

However, on 3rd April 2000 a scheme was introduced whereby police can choose to issue cautions to persons in possession of 15 grams or less of cannabis, provided that:

(a) they admit the offence,

(b) they don’t have a previous conviction for a drug offence, sex offence or violent offence, and

(c) they have not previously been given more than one other cannabis caution.

In practice, this means that someone who possesses several grams of cannabis can be cautioned while someone who possesses a few ecstacy pills must go to court and face the possibility of a life-long criminal conviction.

This is unfair and contrary to what the courts have said.

Pointing this out to Magistrates can ‘get clients over the line’; ie help persuade the Court not to record a criminal conviction.

Finally, Magistrates should be told that the client knows that any offending during a ‘section 10 bond (now conditional release order without conviction) period’ (eg over the next 12 months) will result in him/her being brought back to court and resentenced for the present offence, and would be an ‘aggravating’ feature of that future offence.

In summary, to maximise the chances of getting a non conviction order for a drug case, criminal lawyers should:

(a) undertake the required work, including letters to police negotiating the charges and/or ‘facts’,

(b) prepare thoroughly, including obtaining detailed information and guiding the client, and

(c) have the knowledge and experience to make effective and persuasive ‘in court’ submissions to the Magistrate.

That way, the criminal lawyer has a satisfied and conviction-free client, and can feel good about the result.