Seckold v R [2016] NSWDC 274

District Court New South Wales

Medium Neutral Citation: Seckold v R [2016] NSWDC 274 Hearing dates: 2 February 2016 Date of orders: 02 February 2016 Decision date: 02 February 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal allowed

Conviction recorded and sentence passed by George LCM sitting at the Downing Centre Local Court on 20 November 2015 set aside

Offender released on a good behaviour bond pursuant to s 10 Crimes (Sentencing Procedure) Act 1999 Catchwords: CRIMINAL LAW – Conviction and sentence appeal – Possess 0.44 grams of methylamphetamine – Appellant acquired drug following negative peer pressure – Appellant possessed the drug for 12 months prior to arrest – Appellant 20 years old with no prior convictions, prior good character and strong references Category: Principal judgment Parties: Lachlan Ross Seckold (Appellant) Director of Public Prosecutions (NSW) (Respondent) Representation: Mr M Jovancevic (Appellant) Solicitor for the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2015/297215 Publication restriction: No Decision under appeal Court or tribunal: Downing Centre Local Court Jurisdiction: Criminal Date of Decision: 20 November 2015 Before: George LCM File Number(s): 2015/297215

Judgment 1. HIS HONOUR: This is an appeal against a sentence passed by Magistrate George sitting in the Downing Centre Local Court on 20 November 2015. 2. The appellant was charged that on 3 October 2015 at Potts Point he did have in his possession a prohibited drug, namely, methylamphetamine. The appellant pleaded guilty to that offence. The amount of methylamphetamine found in his possession was 0.44 grams. Under the taxonomy of the Drug Misuse and Trafficking Act the small amount of methylamphetamine is one gram, the indictable quantity is five grams, the commercial quantity is 250 grams and a large commercial quantity is 500 grams. The amount found in the appellant's possession clearly is at the bottom of the range. Even on that taxonomy it clearly would only be appropriate for personal use. 3. 3 October 2015 was a Saturday. The offence occurred at around 2.52am so that the offence should be seen as having occurred on a Friday night. The appellant was then living in North Sydney and he had gone to Kings Cross with some acquaintances. He had visited a nightspot called "Candys" and had temporarily left the nightspot but when he attempted to re‑enter he had some interaction with security guards. Police who were nearby observed the appellant to yell at the security guards and push one of them on the chest. The appellant then turned and began to run eastwards on Bayswater Road but was followed by the police and tackled to the ground after it was alleged that he failed to heed a police instruction to stop. 4. Whilst the appellant was still on the ground police noticed him pull with his right hand out of the pocket of his trousers a clear resealable bag containing a small amount of white "granular substance" which the appellant attempted to throw away. Police then handcuffed the appellant, arrested him and cautioned him in relation to what he had just attempted to throw away. The appellant then admitted to the police that it was "speed". When asked how he came by that the appellant said that he had found the substance in the toilets of Candys nightspot but the appellant agreed in his oral evidence today that that was a "fairy story" and that he had been given the substance sometime previously by some acquaintances whom he now admits to have been a negative influence upon him. Formal testing of the drug ascertained it to be 0.44 grams of methylamphetamine. 5. The appellant had no prior conviction for any offence. Magistrate George imposed a fine of $500. The maximum penalty for this offence is imprisonment for two years and or a fine of $2,200. The appellant asks me to deal with him under s 10 of the Crimes (Sentencing Procedure) Act 1999. 6. The appellant at the time of the offence and at the current time is 20 years old. As already said, he has no criminal conviction and he came before the Local Court and he comes before this Court as a young man of prior good character. He attended St Pauls Grammar School, a campus of the Cranbrook School on the Hawkesbury, and completed the School Certificate there. He then undertook an apprenticeship as an air-conditioning and refrigeration mechanic. At the time he committed this offence the appellant was still an apprentice but has subsequently completed his apprenticeship and is now a qualified tradesman. 7. The appellant's family home is on the Bells Line of Road at Kurmond. His mother provided a reference. In it, after speaking of her son as being a loyal son, as being respectable, kind and caring, and extremely thoughtful she said this: "When Lachlan told me about his offence I was in disbelief, this is completely out of character for him as he prefers spending time with his family and close friends, rather than partying and going to nightclubs. Lachlan has always been taught to tell the truth and accept responsibility for his actions and as a result has pleaded guilty [to] this charge." The appellant's then team leader with his then employer, the employer to whom he was indentured and his current employer since his obtaining his qualification, said this: "Over the three years Lachlan has been employed..., he has demonstrated himself to be a reliable, responsible, and punctual individual and is a very conscientious and diligent worker. Lachlan has demonstrated time and again, his commitment by ensuring all tasks asked of him are completed in a timely manner and to a high standard. I consider Lachlan to be a person of good character and am pleased to provide this reference for him." I have omitted between those two paragraphs another paragraph in which Mr Marson related his being advised by the appellant of the charge which he was facing and of his intention to plead guilty to it. 1. In his letter to the Local Court the appellant referred to his foolishness and his deep concern about the impact a conviction might have on his current employment and his future career opportunities. He concluded his letter with this paragraph: "I am a hardworking individual and am not particularly outgoing. Peer pressure in an alien environment caused a lapse in my judgment and I realise that this is a mistake that has the potential to carry a heavy burden." The appellant admitted in cross-examination that he had been given this substance by a friend about 12 months previously. He had used it on four occasions previously and it had given him a "buzz". He took some on the evening of the offence to give himself Dutch courage to enhance his approach to a young lady. He agreed that the "peer pressure" to which he referred in his letter was a reference to a person and others who had given him the drug and he attested on oath that he has now broken off those associations. 1. Everything in the current case points to a hardworking, well behaved, well‑intentioned young man who acted foolishly under negative peer pressure and has now learnt the error of his way. The Crown's only concern expressed to the appellant in cross-examination is whether a s 10 order may be insufficient penalty for the appellant's keeping this substance in his possession over a protracted period and using it from time to time until caught out by the police. 2. If the appellant had merely been handed the substance at the nightspot on the evening in question to "try it" when he was intoxicated, as he clearly was by alcohol on this evening, one could understand a s 10 dismissal. However, in the circumstances this calls not for a s 10 dismissal but for an order requiring the appellant to enter into a good behaviour bond so that he realises that he must continue in his current resolve never to commit another offence, to have, so to speak, the Court overseeing his behaviour over the next year to make sure he conforms with the desire and intention he expressed in his oral evidence today. 3. For those reasons I set aside the conviction recorded and the sentence passed by the Downing Centre Local Court on 20 November 2015. 4. Lachlan Ross Seckold, under s 10 over the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction but having regard to your good character and age, I am satisfied that it is expedient to release you on a good behaviour bond. I order that you be released on a good behaviour bond for a period of one year from today. Conditions of the bond are as follows: 1. you are to appear before the Court if called upon to do so at any time during the term of the bond; 2. you are to be of good behaviour; 3. you are to reside at [redacted], or 4. you are to advise the Registrar of this Court by prepaid registered post of any change of residential address during the term of the bond. 1. Do you understand all that, Mr Seckold? 2. OFFENDER: Yes, your Honour. 3. HIS HONOUR: To be of good behaviour means you have to obey the law. All right. 4. BALDEO: May it please the Court. 5. JOVANCEVIC: Please the Court. 6. HIS HONOUR: The police asked the magistrate to make a drug destruction order, was that made? 7. BALDEO: That was made on the last occasion. Yes. 8. HIS HONOUR: All right. I reiterate the drug destruction order.