How to Avoid a Conviction After Pleading Guilty to a Drug Offence

A section 10 dismissal, soon to be known (from 2018) as Conditional Release Orders (CRO), is a type of punishment a Court can give if your found guilty for a criminal charge. This includes offences of possession or supply of prohibited drugs in NSW.

A punishment of this kind from a Magistrate or Judge means you avoid the stigma of a criminal record against your name. This can allow you to say ‘no’ to the question, ‘do you have a criminal conviction?’.

For drug offences, getting a s10 or CRO generally avoids problems of travelling and getting a job. It also avoids a licence disqualification for certain traffic offences, in particular, drink driving.

The only difference of a s10 to a CRO is that, although the CRO gives the same effect of avoiding a conviction, it allows the Court to impose more conditions. The point is, if you receive this as a punishment for your drug offence, you will generally not face the kind of difficulties people do who have a conviction.

The below is an important guide on how to maximise your chances at avoiding a conviction where a Court finds you guilty for a drug offence:

Negotiate the Charges with Police

You may be able to convince police to drop or downgrade your drug offence. This can be done by carefully analysing the police evidence, pick out all the weaknesses in it, and then use them in negotiations with police. This can be very effective if done the right way.

If a defence to your drug charge is available, you may be able to also use this in negotiations with police. This may cause you to either get police to drop the charges altogether, or downgrade a supply charge to a possession charge, increasing your chances at avoiding a conviction. It would definitely be worth your while to pursue negotiations as early on in the case as possible.

Negotiations are usually formally commenced by drafting and submitting ‘legal representations’ to police. This is a carefully written document which points out all the ‘cracks and holes’ in the police evidence.

To see possible defences to possession of prohibited drugs, see Defences to Drug Possession Charges.

To see possible defences to supply of prohibited drugs, see Defences to Drug Supply Charges.

Negotiate the Police Facts

Once a plea of guilty to a drug charge is entered in court, it may be worthwhile trying to change what the police facts say.

The police facts is a document initially drafted by police. It can appear as a one sided version of what happened, weighing heavily against you. It’s a document read by the Magistrate right before giving a sentence, and expresses what you did, how you did it, where it occurred, how long it occurred for, and sometimes your behaviour with police when arrested.

Changing the police facts to something more accurate and favourable can then shed you in a much better light to the Magistrate reading it. This can significantly increase your chances at avoiding a conviction.

You can negotiate the police facts by carefully looking into the police evidence, picking out the holes and strategically pointing them out to police. These negotiations are commenced by carefully drafting and sending a ‘legal representations’ letter to police.

Pleading Guilty Early

Pleading guilty at the earliest possible time in your case will increase your chances at getting a s10 dismissal or CRO. This can significantly help you avoid a criminal conviction for a drug offence. This is because, an early enough plea of guilty in court will automatically allow you a 25% discount off the punishment you would otherwise have received.

This means you would get a heavier punishment if found guilty after a plea of not guilty. This discount continues to then reduce the later a plea of guilty is entered in court.

For this reason, it’s important to receive reliable and experienced advice at an early stage of your case. Ideally advice should be sought before your first court date.

Cannabis Caution scheme and the Case of Queen v Adams

The High Court Decision of Queen v Adams prohibits the Courts from giving different punishments based on the kind of drug involved- MDMA, Cocaine, Heroin etc. This means, in the absence of expert evidence, you can’t get a heavier punishment, if the police argue that the drug your charged with is more dangerous than other drugs of the same weight.

The importance of this, to increase your chances of getting a s10 dismissal or CRO non conviction, is seen where you apply this case in the context of the cannabis cautioning scheme.

If charged with a drug offence, you will be required to attend court and face a possible life changing criminal conviction.

However, the cannabis cautioning scheme gives police the discretion to just caution you without a drug charge. This means that if you get the caution, you are not put through that court process.

Police can only caution you without charging you if:

• Police catch you with possession of 15g or less of Cannabis; and
• You have no criminal record of drug offences, sexual offences or violence; and
• You received no more than 2 cannabis cautions already; and
• If possession of the drugs were for personal use

The cannabis cautioning scheme only applies to cannabis. Why should someone with possession of a small amount of cocaine be treated differently to someone with a small amount of cannabis? The case of Queen v Adams addresses this unfairness, and prevents discrimination between the different kinds of drugs. For that reason, caught with small amounts of drugs, other than cannabis, can allow you to argue this point. This can increase your chances at avoiding a conviction.

Good Character References Letters

A well written good character reference letter, for a drug offence, can significantly improve your chances at receiving a s10 dismissal, or CRO, to avoid a conviction.

A good character reference letter is an opportunity for you to express some of the main factors the Court will look into, when considering a sentence that avoids a conviction.

The main areas to comment on in a character letter for a drug offence includes, your good character, remorse and insight into your drug offence. It can also express the effects of a conviction on your job, especially if the letter comes from your employer.

As a rule of thumb, it is a good idea to get no more than 4 letters, one page each. They can be an apology letter from you, your employer, family and friend. For a guide on good character reference letters, see Guide to Drafting Good Character Reference Letters.

Psychologist Report

A court report from an experienced psychologist expressing important points on your remorse, insight, shame and mental state at the time of your drug offence, can significantly improve your chances at a s10 dismissal or CRO non conviction.

A psychologist report is also a great way to explain, without a justification, as to why you committed the offence. The law generally gives a more lenient outcome to an offender who’s judgement was impaired, due to a mental condition, at the time of the offence.

Case of Mauger

The case of R v Mauger involved a 32 year old successfully employed man who travelled often as part of his job. He had completed a Masters in Applied Finance, and supported various charities. Mr. Mauger received a s10 dismissal bond for pleading guilty to the supply of 20 pills of Ecstasy (MDMA).

The case acknowledges that a non conviction is also available to serious drug offences, including drug supply and drug possession.

Some of the reasons that contributed to Mr Mauger receiving a non conviction here, included a combination of the following:

• Absence of a previous criminal conviction
• Potential effect of a conviction on entering certain countries
• Loss of his job if convicted
• His good character
• His good prospects of rehabilitation- here he wasn’t a regular drug user
• His expressions of remorse and insight into his offence

Every case is to be decided on its own facts, and like your fingerprints, no one case is exactly the same.

For achieving the best chances at avoiding a criminal conviction, it’s important to show proof of the reasons you say as to why the Magistrate should not convict you for your drug offence. For example, proof should be shown in the correct way as to the effect of a conviction on your job and ability to enter other countries

Off-course, there are other factors the courts consider when thinking of giving your case a non conviction dismissal. Those factors include the amounts of drugs involved, your role, sophistication and planning in committing the offence. The main point is to ensure that proof is provided to the court in the correct way, so as to ensure you completely maximise your chances at avoiding a criminal conviction for a drug offence.

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