Avoiding a Criminal Record for a Drug Related Offence
This page answers some questions that are frequently asked about drug offences including whether avoiding a criminal record is possible. This article is not a substitute for legal advice and if you have been charged with drug offences you should talk to one of our lawyers as soon as possible.
In New South Wales, drug offences are contained in the Drug Misuse and Trafficking Act 1985 (NSW) When a person is found guilty, or pleads guilty to an offence under the Act, the sentence imposed is ordered under the Crimes (Sentencing Procedure) Act 1999 (NSW). All offences involving prohibited drugs carry a maximum penalty which includes a term of imprisonment and/or a fine and the likely sentence will be based on both objective and subjective features of the matter as well as whether the jurisdiction that is hearing the matter and the maximum penalties of the offence. When assessing the objective seriousness of an offence, the Court must identify factors related to the nature of the offending and determine where the conduct sits within the full range covered by that specific offence.
What is a Section 10 Order?
The expression ‘section 10’ refers to a conditional release order contained in section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This section allows a Court that finds a person guilty of an offence to discharge them on any of the following basis:
- An order dismissing the matter after a finding of guilt – a section 10(1)(a);
- An order discharging an offender on upon him/her entering a conditional release order – a section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, strictly speaking, this order is made pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW);
- An order discharging an offender on condition that they enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program – a section 10(1)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
What will a Judge or Magistrate consider when deciding whether to impose a Section 10 order?
The benefit of the order allows a person to avoid a criminal conviction and in turn, having a criminal record. In deciding whether to impose such an order, the Court will consider the following factors:
- the person’s character, antecedents, age, health and mental condition,
- whether the offence is of a trivial nature,
- the extenuating circumstances in which the offence was committed,
- any other matter that the Court thinks proper to consider.
Under Section 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the list of aggravating (s 21A(2)) and mitigating (s 21A(3)) factors is not exhaustive. These factors supplement all other sentencing considerations required or permitted by law. Furthermore, s 21A(1)(c) provides a broad catch-all, requiring the Court to evaluate “any other objective or subjective factor” that influences the offence’s overall seriousness.
How likely am I to receive a Section 10 Order?
While avoiding a criminal record for drug offence is possible, the Court’s default position is to record a conviction. Arguments against imposing a conviction typically are based on a person’s age, lack of prior offences or the potential adverse impact a criminal record would have on their current or future employment prospects amongst others. In contrast, certain factors such as the quantity of the drug will change the likelihood of avoiding a condition.
Higher drug quantities are treated more seriously, and a person is more likely to receive a harsher penalty in comparison to a person being sentenced for a lesser quantity, but a person’s subjective case will also be weighed into the decision. Importantly, the type of drug being sold, possessed or manufactured does not have any bearing on the seriousness of an offence, unless the offence is related to Cannabis which inherently carries lesser maximum penalties.
The type of drug charge, whether it be possession, supply, importation or manufacturing will also affect a person’s likelihood of being sentenced to a Section 10 Order. Generally speaking, the more serious the charge, the more difficult it will be to obtain a Section 10 Order. A useful way of determining how serious an offence is, is by reviewing the offences maximum penalties.
If you have been charged with a drug offence, we would recommend engaging a lawyer to give you the chance at securing the best possible outcome.
This article was written by Emily Wood-Ward
Emily Wood-Ward is a Criminal Lawyer based in Sydney bringing vast experience from working in both public and private practice. She has experience appearing and instructing counsel in the Local, District, Supreme and Coroners Courts of New South Wales. Emily has honed fierce advocacy skills from her experience working with incredibly vulnerable and disadvantaged clients whilst working for the Aboriginal...
