Letter of Advice to your Client Assessment Answer

Introduction

We refer and thank you for your instructions to render advice in the captioned matter. This is concerning the matter of the accused, Melania Smith who has been charged with possession of drugs by the local law enforcement department of New South Wales (NSW). The subsequent sections of this letter will primarily give a brief about the situation surrounding the case after which an analysis of the implications will be done. This analysis will determine those legislations in which the accused is charged which will be supported by case laws. Subsequently, there will be an assessment of the advantages and disadvantages that the accused has in the current scenario and along with this the possible penalties will be discussed. Additionally, specific instructions will be given to defend the accused so that the accused is convicted with lesser penalties. Lastly, a conclusion will be mentioned on the current situation to establish a practical solution.

Preliminary Facts

The drug policies in NSW aim at convicting offenders who possess or use prohibited drugs. The drug-related legislation aims at targeting those groups of peddlers who are present at the ground level and supplying prohibited drugs according to the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). Similarly, the mentioned case matter deals with Melania Smith (hereinafter referred to as ‘Accused’) having 23 years of age and has been caught with the possession of illicit drugs. The accused is residing in the accommodation available by the University of Inner City and has a flatmate, Monique Sainsbury who is factually presumed to be absconded recently. The flatmate of the accused was already under the radar of the local police. Additionally, the undercover officer was assigned to investigate the supply of prohibited drugs by the flatmate. In pursuance of this, on 3 April 2023, the accused was found in her apartment in possession of 1.2 grams of 100% pure cocaine in the lounge which is an illicit drug according to DMTA. The accused admitted to possessing the substance by stating that it is hers when the police officer asked. Apart from this, the police also found 300 grams of 3, 4 MDMA which is also a drug prohibited under the NSW drug-related legislation. Moreover, the police discovered rolled-up cash amounting to $4500 in $50 notes. An Electronic Record of Interview with Suspected Person (ERISP) has been taken of the accused in which she declined to provide any information other than her credentials. Currently, the accused is out on bail and the matter is listed before the Local Magistrates’ Court dated 04/05/2023.

Applicable Legislation

From the above-mentioned facts of the case, it is clear that the applicable legislation in the jurisdiction of NSW is that of DMTA. It should be noted that Australia (including NSW) is also governed by the Commonwealth Criminal Code Act 1985 (The Code). Additionally, DMTA is also read with Criminal Procedure Act 1986 (CPA) to determine crime and their punishment. Furthermore, NSW is also a signatory to international treaties like the Single Convention on Narcotics Drugs 1961, the Convention on Psychotropic Substances 1971 and United Nations Conventions Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988. This indicates that the prohibition of the use and possession of drugs in the jurisdiction of NSW is strictly monitored and the law enforcement department has undertaken sufficient measures to control the spread of illicit drugs.

Issues of the Case

The above-mentioned legislations and treaties will be applicable in the current case as they will determine the validity of offences on the accused like whether the drugs located in the apartment belonged to the accused or not and whether the quantity of the drugs is considered as an indictable quantity or not. Another concerning issue will be mentioned that will highlight whether the accused has supplied the drugs or not. This will be followed by the last issue which will determine the penalty that should be imposed on the accused based on the nature of the offence. Therefore, this letter of advice will deal with the following issues:

1. Which prohibited substance is under the possession of the accused?
2. Whether the accused has possessed the drugs for supply or not?
3. How many penalties should be imposed?

Issue 1: Which prohibited substance is under the possession of the accused?

The primary concern, in this case, deals with the fact that whether the drugs found in the apartment belonged to the accused or not. For this, an understanding of the prevalent law on the nature of drugs that are considered an offence should be done. Therefore, those drugs are prohibited under the jurisdiction of NSW and involve an economic activity like trading, production and/or manufacturing the substance. The higher the level of the prohibited substance in the hierarchy, the higher will be the penalty that is imposed. Therefore, the substances i.e., cocaine and 3,4 MDMA which are caught in the apartment of the accused are prevalent in the hierarchy of prohibited substances.

Hence, the current case should involve a prerequisite knowledge of four types of quantities of prohibited drugs. These are the legal threshold manifested in drug-related policies. These thresholds are present in most of the legislations to determine the quantity of illicit trafficking against the quantity which is commercially accepted or regulated for recreational use. In Schedule 1 of DMTA, the threshold of prohibited substances is mentioned under the trafficking quantity, small quantity, indictable quantity and, commercial quantity. The relevance of these quantities in the legislation of NSW is to work as an indicator for the possession and supply of the prohibited substance and subsequently, the penalty is imposed. The NSW-related legislation prescribes that a person should not possess or supply substances of more than a small quantity. The person containing a quantity ranging between a small quantity and an indictable quantity will be given a less severe punishment than a person containing who contains or supplies more than an indictable quantity. The ranges of these quantities are dependent upon the type of prohibited drugs.

Therefore, the current scenario mentions that the accused was caught in possession of 1.2 grams of cocaine. According to Schedule 1 of DMTA, cocaine has 3.0 grams of trafficable threshold, 1.0 grams of small threshold and 5.0 grams of the indictable threshold. This means that the located quantity comes between small and indictable quantity which makes the case of the accused less severe. Here it should also be noted that apart from cocaine, another prohibited substance i.e., 3,4 MDMA was also located. For 3,4 MDMA, the trafficable, small and indictable quantity should not be looked at because it was found in the personal premise of the flatmate of the accused. This was also mentioned by the accused at the time of the police investigation. Therefore, according to the law, the accused will only be liable to possess 1.2 grams of cocaine.

In conclusion, the contention for issue 1 can be made by pursuing the fact that only cocaine was possessed by the accused but in between a small quantity and an indictable quantity. Hence, the penalty imposed should be according to the quantity.

In the case of R v Shi [2005] NSWCCA 135, the issue concerned the quantity and purity of the found drug. It should be noted that the imposed penalty will become less if the quantity along with the purity of the drug is low and a higher penalty will be imposed otherwise. The Court mentioned that quantity is not the only concerning factor that sets precedence over any other deciding factor for punishment. Therefore, the Court should also refer to the nature of the offender and whether the offender has committed the same offence and how many times. The current case entails that even though the quantity of the substance is less, a less grave punishment can be imposed but since the purity is 100%, then the Court can give harsher punishment. Hence, it is advised that the accused should appear with respect before the Court to leave an honest impression.

Issue 2: Whether the accused has possessed the drugs for supply or not?

According to DMTA, possession is described as physical custody of the illicit substance with full knowledge of the consequences. This also includes ‘de facto possession’ which means keeping the illicit drug knowingly within the reach to access it. Furthermore, possession includes the element of physical custody to administer control over it. Under possession, it is also important that the possessor has full knowledge of the location of the substance and is acquiring and keeping it with a sound mind and proper consent. The possession also has an element others are excluded from accessing it or have any knowledge regarding the presence and possession of the illicit substance.

Here, it becomes relevant for the police to determine the custody of the found drugs and whether the acquired quantity is intended to be supplied or not. Here the police can prove that the located cash in the denomination of $50 notes amounting to $4500 meant that the prohibited drugs were supplied. To this, the accused has to create strong evidence before the Hon’ble Court to negate the circumstantial evidence. This can be done by contending before the Court that the accused was not the owner of the found cash. This is because there is an ambiguity in the location of the cash.

Therefore, the accused with this contention can create reasonable doubt in the Court because according to the law, if any illicit substance or anything related to the supply of the prohibited drug like scales, plastic bags or cash is found in the common area like the lounge, kitchen etc, then the liability will not solely be on one party, instead the police will contain a burden of proof to investigate the matter further. This will establish that the accused cannot be penalised for the supply of the drugs and only the possession of 1.2 grams of cocaine.

Issue 3: How many penalties should be imposed?

The guilty party is penalised for possession of prohibited drugs under Section 10 and Section 21 of the DMTA. According to the law, a penalty in these cases consists of a sentence of 2 years of imprisonment or a fine of $2200 or both to the accused. When the accused is pleaded guilty under Section 10 of the DMTA, the Court gives a conditional penalty and it is not always that the maximum penalty is given. Hence, this depends on the severity of the case. Under this Section, the Court can also provide a conditional release order to the guilty party which is a non-conviction penalty. This way, no criminal record can be placed and the Court orders the guilty party to rehabilitation or counselling process. It is reiterated here that this depends on the facts of the case. Moreover, a Section 10 penalty is less grave when the guilty party is a first-time offender. Here the Court looks at factors like character, health, mental illness, employment status, knowledge about substance use and possession, early life and any other factor that is associated with the offence of the guilty party.

In the case of Postlewaight v R, the aspect of vulnerability and addiction was addressed by the Court which put the case of the offender in a good position. In substance use and abuse for recreational purposes, the aspect of addiction was associated with the crime committed. Hence, the Court held that the offender lies on the lower spectrum of criminality. 

Therefore, according to this issue which discusses the potential penalty for the offender, it can be established that since the accused is a first-time offender, then the aspect of severe penalty is less likely. While assessing the punishment, the court assesses various factors like good faith, honest mistake, negligence of law and especially addiction to the substance. In pursuance of this, under this issue, the Court can impose a fine based on the facts but imprisonment is less likely.

Summary of Legal Opinion for the Accused

This section deals with providing the best possible contentions to be presented before the Court. It should be kept in mind that the accused should address the use of the illicit substance with entire honesty and in good faith. The accused should present herself as being accountable for the possible consequence. This case should be turned into possession of an illicit substance due to possible addiction since the accused has admitted to possession of cocaine already before the local police. This will help in establishing before the Court that the accused has a good character and is ready to resolve the potential substance abuse.

Another piece of advice involves that the Court should be enlightened by the fact that the flatmate of the accused is absconded. Additionally, the blame for the located cash amounting to $4500 having $50 notes cannot go to the accused because of the unidentified location of the same. The additional discovery of the 3,4 MDMA was made in the room of the flatmate which can indicate that the missing flatmate should be investigated in the matter further.

The most important aspect of the case revolves around the possession of 1.2 grams of cocaine. As it is mentioned above, the acquired quantity of cocaine lies between small and indictable quantities which means that Section 30 of DMTA will not be applicable. This is because the quantity is less and hence, the Court is most likely to penalise the accused under Section 21. However, with the above-mentioned advice, it is a possibility that the Court lets the accused go free with a less serious punishment. Therefore, the Court can impose the following penalties:

1. No Conviction Order- In this, the guilty party will not be convicted without any criminal record.
2. Conditional Release Order without Conviction- This can also be provided by the Court without a criminal conviction. In this order, the Court lets the guilty party go free based on the condition that there should not be an occurrence of this offence again in the future. In this order, other conditions can also be imposed like mandatory counselling and rehabilitation.
3. Conditional Release Order with Conviction- In this, the Court can release the guilty party, however, there will be a criminal conviction.

Other potential sentences that can be imposed are Community Service Orders or the harsher punishment would result in Intensive Correction Orders (ICO) or imprisonment. Based on the facts of the case, it is advised that the prayer should be made to punish Section 9(1)(b) because the case should involve the accused is guilty of the possession of an illicit substance for recreational use so that the accused does is not charged with a criminal conviction and at the same time is monitored for a better future.

Refrences

Rachel Sutherland, Don Weatherburn and Louisa Degenhardt, ‘A Trial of Criminal Infringement Notices as an alternative to criminal penalties for illicit drug offences in New South Wales, Australia: Estimated savings’ (2020) 40(1) Drug and Alcohol Review 93 https://doi.org/10.1111/dar.13142

Drug Misuse and Trafficking Act 1985 (NSW) https://legislation.nsw.gov.au/view/html/inforce/current/act-1985-226#sec.9

National Drug and Alcohol Research Centre (NDARC), ‘A QUICK GUIDE TO Drugs & Alcohol’ (2017) Drug Info, State Library of NSW https://www.sl.nsw.gov.au/sites/default/files/quick-guide-drug-laws-nsw.pdf

Criminal Procedure Act 1986 (NSW) https://legislation.nsw.gov.au/view/html/inforce/current/act-1986-209

Paul M. Dietze and Amy Peacock, ‘Illicit drug use and harms in Australia in the context of COVID‐19 and associated restrictions: Anticipated consequences and initial responses’ (2020) 39(4) Drug Alcohol Review 297 https://doi.org/10.1111/dar.13079

Mark S. Allen and Sylvain Laborde, ‘A prospective study of personality and illicit drug use in Australian adults’ (2020) 163 Personality and Individual Differences https://doi.org/10.1016/j.paid.2020.110048

Melissa Bull, Ross Coomber, Leah Moyle, Lisa Durnian and Wendy O’Brien, ‘Sentencing for social supply of illicit drugs in Australia’ (2021) (638) Trends and Issues in Crime and Criminal Justice 1 https://search.informit.org/doi/10.3316/informit.123121006510503

Radosav Risimović, ‘Proving intent to supply drugs – Threshold quantities or circumstantial evidence’ (2021) 58 International Journal of law, Crime and Justicei 80 https://doi.org/10.1016/j.ijlcj.2019.05.002

Drug Misuse and Trafficking Act 1985 (NSW) Division 2

Drug Misuse and Trafficking Act 1985 (NSW) Schedule 1

R v Shi (2005) 135 NSWCCA

Drug Misuse and Trafficking Act 1985 (NSW) s 10

Postlewaight v R (2007) 230 NSWCCA

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9(1)(a)

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