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No Criminal Record for 18 ‘Ecstacy’ Tablets

CRIMINAL CASE

Our client is a 27 year old man who is on a student visa.

Police were conducting a drug dog operation within the Kings Cross Entertainment precinct.

They were walking along the footpath when they observed our client see them and immediately cross the road.

Police followed our client and say they observed him cross back, in what they viewed to be an active attempt to avoid the sniffer dog.

They approached our client and activated their Body Worn Video camera. They asked if our client would consent to a search, and he did.

During the search, police located 2 resealable plastic bags containing a total of 18 capsules of MDMA (‘ecstacy’).

They arrested our client and conveyed him to the police station, where our client participated in an interview and admitted owning the tablets.

The law in NSW is that where the weight of a substance containing MDMA is above 0.75 grams, police are able to charge the person with ‘drug supply’ as it is deemed the drugs were in the person’s possession for the purpose of supply.

In that case, police do not need to prove that the person intended to supply the drug; rather the onus of proof shifts to the defendant to prove on the balance of probabilities that he or she possessed the drugs for something other than supply, most commonly for personal use only.

The weight of the drugs in our client’s possession was 4.27 grams, well in excess of the ‘deemed’ quantity.

He was subsequently charged with supplying a prohibited drug.

As the weight was more than 1.25 grams, the supply charge became ‘strictly indictable’ which means it must be finalised in the District Court rather than the Local Court.

This also meant the matter was taken over by the Office of the Director of Public Prosecutions (DPP).

We wrote detailed ‘representations’ to the DPP regarding the fact the drugs were in our client’s possession for personal use only, requesting the downgrading of the supply charge to drug possession – which is far less serious and would allow the case to remain in the Local Court.

After intense negotiations, the DPP ultimately agreed to our request.

Our client then pleaded guilty to drug possession-only in the Local Court.

In preparation for our client’s sentencing proceedings, we assisted him to prepare a Letter of Apology, Character References and also guided him to attend the SMART Recovery Program.

As he is an Italian national, we obtained his Italian criminal record (which was clean) and had it translated.

We made detailed submissions in regarding his remorse, steps to taking control of his substance use and the impact of a conviction on his desire to work in the future as a professional.

We also compiled relevant case-law which makes it clear a magistrate can impose a ‘non-conviction’ despite the number of pills.

The Crown opposed our request and made submissions for a criminal conviction and significant penalty.

We ultimately persuaded the Magistrate not to impose a criminal record on our client, and released him on a two-year good behaviour bond without conviction.

Our client was ecstatic and looks forward to pursuing his career.

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