NSW Possession of MDMA - What to Do About Son's Criminal Record?

[Fireman]

I write this in the hope that someone can steer me in the right direction to help my son.

My son was apprehended upon entering a music festival 1 Jan 2015. He was found in possession of 2 caps of MDMA and subsequently charged. He was convicted of possession of an illegal substance on 22 Feb 2015 found guilty and fined $200. He now has a criminal record.

At the court, he attended were 50 other people in the same boat. The judge at one stage spoke to the courtroom and basically said that they would be made an example of and all be convicted. At the time of this, my son was and still is suffering severe mental health issues and has been contemplating suicide. I believe he was not of sound mind to make the right decisions during this drug charge turmoil.

It has been a year since the conviction and I want to know what grounds he may have to appeal this criminal conviction. He was seeking to work in the disability field but is unable to because of this charge. He is in a much better space now than he was at the time of the incident.

The question is, is it too late to appeal the severity of sentence under Criminal Law? What can I do to have the conviction removed from his file so that he can work in the disability field? He has no prior convictions or court appearances in the past.

Thanks for reading this far. He is a great son and is very disappointed that a decision that he made, no matter how small, has had such long term, life and career effects. I do think the punishment is excessive and does not fit the crime.

 

[Sophea]

Was he a minor at the time of conviction ?

Otherwise there is a spent conviction scheme whereby his conviction will be removed after 10 years provided he has no other convictions.

I don't know of any other ways of expunging a former conviction.

 

[TKC]

I agree that the punishment was excessive, it should have been a section 10 sentencing procedure which would have seen your son discharged without recording a conviction, especially since a conviction was going to interfere with his vocation. Unfortunately, you have advanced beyond the limitation period for an appeal since your son was in court for the verdict.

As Sophea has stated the spent conviction scheme is the only real option remaining. A bit like the long form discipline of the sport of cricket, counting backwards from 9 years whilst not re-offending.

Best of luck with his prospects.

 

[Tim W]

...it should have been a section 10...

I am not at all sure on what basis you make this statement, without reference to any of the facts, without reference to the principles of sentencing, without any knowledge of the offender's history, and without knowledge of any of the submissions that may, may not, or could have been, made at the time.

Unfortunately, you have advanced beyond the limitation period for an appeal since your son was in court for the verdict.

If it's been a year then this might well be the case, yes.
Grounds to appeal after all this time would need to be truly exceptional, and probably have to be significant questions of law, not merely about severity of sentence.
Going only by what you have said here, missing facts missing and unstated if's, but's and maybes not allowed for, I don't see that your son has any basis for an appeal. On that basis, you can expect that the conviction will stand.

 

[Rod]

Curious here.

Would mental health issues be an adequate reason for requesting an appeal after the due date?

 

[Tim W]

In considering an application for an appeal out of time, if it will hear it at all,
the court will consider questions along the lines of:

• "What do you have now, that you could not reasonably have brought up then?"
  and
• "What is so special about this (new) evidence that it could render the conviction unsafe?"
  (this is how people convicted years ago get cleared by, say, DNA evidence that simply didn't exist back when)
  and
• "What's so special about it that we should hear it so far out of time?"

This is different to an appeal on a point of law, such as
"The Magistrate erred by not hearing submissions on sentence from each of the 50 accused individually."
Even an appeal on a point of law would need to be heard within time.

For law students: This is about the principle of finality vs Blackstone's Ratio vs the efficient administration of justice.

 

[TKC]

I am not at all sure on what basis you make this statement, without reference to any of the facts, without reference to the principles of sentencing, without any knowledge of the offender's history, and without knowledge of any of the submissions that may, may not, or could have been, made at the time.

I make this statement on the basis of forming inferences from the source of the available information, by employing a similar historical basis and context for sentencing outcomes, if not guidelines.

It would be unreasonable for the OP to publish the entire facts of the case, but intimate with the details of the situation, he has provided enough for me to form my opinion.

The courtroom that day, before a hard-working magistrate, was an exceptionally busy one. We know that there were 50 offenders from the music festival on similar drug possession charges there at the same time. The magistrate looking to "clean" these souls, overstepped his authority by exclaiming that he would make an example of them and convict them all. This led me to conclude that it was a "cattle call" situation.

I accept the magistrate was right to convict them all in order to expedite the matter and keep the wheels-of-justice turning, however, dealing with them as a group by referencing them in such a way, would have meant that upon sentencing the details of their character and circumstances were overlooked to a large extent; that is even if each of them was offered the opportunity to say something in support. However, since the OP's son was suffering from mental health issues at the time, what he would have said might not have been beneficial for him at all.

Since character has a strong influence in sentencing procedures, and since the OP's son didn't have a criminal record prior as the OP asserts in describing his son having one after the conclusion of this particular matter, and it having an adverse effect on his vocational prospects -- it is safe to conclude that he wouldn't have had one prior.

First offence. Two caps of a Schedule 1 drug for personal use at a music festival. I think even a first-year lawyer could have persuaded a section 10 sentence in such a situation using the details provided as a basis, and trusting the accuracy of them.

Cheers

 

[sammy01]

I don't see why a drug conviction would exclude your son from working in the field of disability.... If it was a criminal conviction pertaining to disabled people or children, that would be different...

He may need to have a police check done to gain employment, but the police check would not necessarily be a problem... Easiest way of finding out more would be to contact the local police and asking them about police checks for employment.

 

[Tim W]

An employer is pretty much free to

• require a person to be a of good character (that is, have no record); or
• choose to overlook things like traffic offences; or
• choose to overlook traffic infringements, but not convictions for traffic matters;
• choose to exclude only people who have convictions involving violence; or
• exclude current or former bankrupts;

Being a registerable or Prohibited Person goes without saying.

A conviction isn't always a deal breaker, job-wise.
By way of example, there are lawyers with PCA convictions.

 

[Tim W]

I accept the magistrate was right to convict them all in order to expedite the matter and keep the wheels-of-justice turning

I don't.
I'd have been thinking about that (common sentencing, without regard to the circumstances of each individual accused, even on similar fact offences) as an appeal ground.

First offence. Two caps of a Schedule 1 drug for personal use at a music festival. I think even a first-year lawyer could have persuaded a section 10 sentence in such a situation using the details provided as a basis, and trusting the accuracy of them.

Are you speaking as a first year lawyer?