District Court New South Wales Medium Neutral Citation: Saheli v R [2016] NSWDC 289 Hearing dates: 6 September 2016 Date of orders: 06 September 2016 Decision date: 06 September 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal allowed Conviction recorded and sentence passed by Downing Centre Local Court on 6 September 2016 set aside Released on s 10 good behaviour bond for 6 months pursuant to s 10 Crimes (Sentencing Procedure) Act 1999 Catchwords: CRIMINAL LAW – Appeal against severity of sentence – Possession of small quantity of cocaine – Whilst intoxicated, appellant took possession of drug "to try" – Evidence established he was not a user of any illicit drug – Local Court applied Crimes (Sentencing Procedure) Act 1999 s 10 and placed appellant on 2 year good behaviour bond – Term of bond reduced to 6 months Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Category: Principal judgment Parties: Joseph Saheli (Appellant) Director of Public Prosecutions(NSW) (Respondent) Representation: Solicitor for the Director of Public Prosecutions(NSW) (Respondent) File Number(s): 2016/84796 Publication restriction: No Decision under appeal Court or tribunal: Downing Centre Local Court Jurisdiction: Criminal Date of Decision: 06 September 2016 Before: Farnan LCM File Number(s): 2016/84796 Judgment 1. HIS HONOUR: This is an appeal against the severity of a sentence imposed by Magistrate Farnan sitting in the Downing Centre Local Court on 10 June 2016. 2. The appellant pleaded guilty to an offence contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985. He admitted that on the evening of 11 March 2016 at Sydney he did have in his possession a prohibited drug, namely cocaine. The amount of the drug was 0.57 grams. The small quantity of cocaine is 1 gram. The trafficable quantity is 3 grams. The indictable amount is 5 grams. It can be seen, therefore, that the plaintiff had a relatively small amount of the drug upon him, consistent with obtaining the drug for personal use. 3. Her Honour gave the appellant the benefit of s 10 with the Crimes (Sentencing Procedure) Act 1999 but imposed a bond to be of good behaviour for two years. The appellant on this appeal complains about the length of the s 10 bond. 4. At first blush it appeared to me excessive. At the time of the offence the appellant was 28 years old. At the time of this appeal hearing he is 29 years old. He came before the Local Court as a man of prior good character. He has no criminal convictions at all. His evidence before me is that he had not previously used any prohibited drug. That is consistent with his clean prior record. On Sunday, 13 March 2016, less than 48 hours after the offence, the appellant provided a urine sample to a medical practitioner which was subjected to analysis and was completely negative when tested for opiates, amphetamines, cannabinoids, cocaine metabolites and benzodiazepine. In other words, the plaintiff had been clean of drugs recently, for perhaps as long as a week, or more, consistent with his not having used drugs on 11 March 2016 and consistent with his not previously having been a drug user. 5. The appellant is a man who admits that he acted very foolishly. He had been drinking alcohol for four hours at rate of perhaps two schooners per hour, which indicates that he may have been gravely disinhibited by his alcohol consumption. He succumbed to an offer to experiment, a foolish offer foolishly accepted. He is fortunate in that he did not consume the drug which, of course, had the potential of leading to addiction and ultimately personal ruin. 6. In imposing sentences the Court is concerned with the extent of the criminality of the offender. The offender as I said was disinhibited. He was a man of prior good character. I am persuaded on the evidence that he gave me to today that the prospects of his offending again are extremely remote. In the circumstances I accept that the length of the s 9 bond was too long. I set aside the penalty imposed by the Local Court at the Downing Centre on 10 June 2016. 7. Joseph Saheli, under s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to a conviction but having regard to your prior good character, 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 six months from today. The conditions of the bond are as follows: 1. you 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2018