Criminal Law

Section 10 Drug Possession

Charge: Drug Possession; pursuant to section 10 of the Drug Misuse and Trafficking Act. 

Penalties: The maximum penalties for drug possession are a fine of $2,200 and/or a term of imprisonment of 2 years.

Case Summary: Our client was approached by police on the way to a music festival and, based on their suspicions, police asked our client whether he was in possession of any drugs. Our client obliged and volunteered that he had some ecstasy tablets in his pocket. He pulled out the satchel that contained the drugs and gave it to police.

Police charged our client with possession of 6 ecstasy tablets.

We advised our client that, as he volunteered that he had the drugs on him, we were unable to defend the charge on the basis that it was an illegal search or that the police did not have any basis to form a reasonable suspicion to search him. In fact, it was unnecessary for police to search our client, due to his admissions and showing them the drugs.

Our client was studying at university and a criminal conviction, particularly for drugs, was likely to place any immediate career prospects into jeopardy. Our client was very stressed and wanted to avoid a criminal conviction. He was of the view that because it was his first offence, that the most likely result was that upon a plea of "guilty", he would not be convicted.

Our criminal lawyer rightly advised him that it was a common misconception that first time drug offenders were always likely to receive a "slap on the wrist" and escape criminal conviction by the Magistrate exercising his or her discretion under section 10 of the Crimes (Sentencing Procedure) Act. Our lawyer further advised our client that he was not in fact a good candidate for a section 10 dismissal for drug possession if he were simply to rely on the argument that he was a first time offender.

We advised our client that, despite coming before a Court for the first time in his life for a drug offence, a Magistrate was entitled to form a view that this was not the first time our client was offending, considering that he had in his possession 6 tablets that he wished to ingest at the music festival. Although the Court would not be sentencing him as a "repeat offender", an argument could not be made that the offending was out of character and therefore, without anything more, the Court would not be satisfied that our client should be given a second chance.

Our criminal lawyer advised our client that unless he was willing to go out of his way to assist us in mounting an argument that he was unlikely to reoffend, a section 10 dismissal would be inappropriate and difficult to request from the Court.

Our client therefore accepted our advice to participate in the MERIT rehabilitation programme for drug offenders. For that to occur, our client was required to plead "guilty" to the offence on the first Court date and we made submissions to the Court to refer him to the programme. 

The matter was adjourned and our client was referred to the MERIT programme. It is a 3 month programme and the Court adjourned the matter for 6 weeks to allow for a progress report to be presented to the Court. Due to our client's commitment to the programme, the matter was adjourned for sentence for another 6 weeks to allow him to complete the programme.

Result: At our client's sentencing hearing, we relied on the positive report prepared by the programme coordinator, along with several character references. It was important that the character references reflected the true circumstances; that our client was an otherwise caring, considerate and law abiding member of the community, except for his developed drug taking habit when socialising.

We submitted that, unlike many who come before the Court for their first drug offence, our client was not trying to pull the wool over the Magistrate's eyes and hide behind the fact that this was his first criminal charge. Instead, he was upfront with the Court, himself and the community, in accepting that he had developed a drug habit and in doing so, was engaging in criminal conduct, which was out of step with the rest of his general character.

It was submitted that, unlike other matters where the Courts do not know whether a first time drug offender is going to get the right message and stop engaging in criminal conduct after their Court appearance, the Court could be confident in our client's case that he was well on his way to rehabilitating himself and going back to being a law abiding member of the community. For that reason, we invited the Magistrate to exercise his discretion and deal with the matter by way of a section 10 dismissal.

His Honour accepted our submissions and thanked our lawyer for the approach taken. He commended our client for undertaking rehabilitation and made it abundantly clear that had he not done so and instead showed up on the first Court date as many do and asked for a section 10 due to this being his first drug offence, his Honour would have dealt with him harshly.

Instead, his Honour accepted our submissions and dealt with the drug possession charge by way of a section 10 dismissal and placed our client on a bond to be of good behaviour for a period of only 6 months.

Our client was pleased that he accepted our advice to take a candid approach with the Court. He was able to keep his clean criminal record intact and continue to pursue his studies and chosen career path.

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