Albert v The Queen

[2020] NSWDC 102

District Court

New South Wales

Medium Neutral Citation:	Albert v R [2020] NSWDC 102
Hearing dates:	24 February 2020
Date of orders:	24 February 2020
Decision date:	24 February 2020
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal Allowed. Sentenced to CRO under s 10(1)(b)
Catchwords:	CRIME. APPEAL.   Appeal from the Local Court – Severity - Possession of cannabis – Unusual case - Osteogenesis imperfecta – schatzker fracture – Persistent pain – Appellant self-medicated with cannabis – In light of medical circumstances appellant’s application granted.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Category:	Principal judgment
Parties:	Appellant: Andrew Albert   Respondent: Regina
Representation:	Appellant: In person   Respondent: L. Hawke
File Number(s):	2019/00283118
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 10 October 2019 Before: Connell LCM File Number(s): 2019/00283118

Judgment

1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Connell sitting in the Local Court at Sutherland on 10 October 2019. The appellant pleaded guilty to a charge that on 5 September 2019 at Sutherland he did have in his possession a prohibited drug, namely cannabis weighing 0.062 grams. That is the charge contained in the Court attendance notice albeit that the facts sheet indicates that the quantum of the cannabis was in fact 0.62 grams of the drug. That is relatively insignificant as anything under a gram of cannabis is of little moment as far as the quantity of the drug is concerned.

2. On 5 September 2019 at 11.55am police pulled the appellant over on the Bangor Bypass and required him to turn into Leonay Street, Sutherland in order to undergo random breath and drug testing. The appellant returned a negative result to the random breath test. However he returned a positive reading for cannabis on the drug roadside test. The police suspected that the appellant might have in his vehicle some drugs. In a search of the vehicle police located a small aluminium foil object rolled into a tight ball. That was located under the driver’s seat well of the vehicle. When the police removed the foil they observed cannabis leaf rolled into a tight ball. When questioned by the police the appellant refused to answer any questions stating that he was in extreme pain and could not concentrate.

3. According to the police facts they weighed the cannabis in front of the accused and the reading was 0.62 grams, the drug was then sealed into an incident bag and the appellant was given a Court Field Attendance Notice to appear before the Local Court at Sutherland on 10 October 2019 when the appellant entered his plea of guilty and was sentenced. His Honour recorded a conviction and imposed a fine of $150. The appellant is not concerned so much with the fine imposed as with the conviction recorded.

4. When I first read the papers I was not minded to deal with the matter under s 10 of the Crimes (Sentencing Procedure) Act 1999 as the appellant asked me to. That is because on two earlier occasions the offender has been dealt with under s 10. On 11 July 2015 he was charged with having goods in custody suspected of having been stolen. The goods were found in his motor vehicle. For that offence the Local Court at Sutherland imposed a s 10 bond for a period of 12 months. The offender was charged on 28 September 2017 with possession of a prohibited drug. For that offence the offender was dealt with by the Local Court at Sutherland on 16 November 2017 and again a s 10 bond for a period of 12 months was imposed.

5. However this is a very unusual case. The appellant suffers from the congenital condition of osteogenesis imperfecta. He was diagnosed with that condition at the age of nine however his first fracture was at the age of 6 months. He has had over 60 fractured bones in his 24 years. In the last two years alone he has fractured seven bones in his body and he will shortly need an operation on his left knee. There are some medical records before me which indicate that on 26 August 2014 he suffered a schatzker type six fracture of his left tibial plateau and in 2015 he fractured the C1 vertebra which has left him with ongoing neck pain, and also in 2015 he fractured the proximal inter-phalangeal joint of his index finger and the same joint of the middle finger of his left hand. The records indicate that he had screws inserted into his right femur in 2017 and a fracture of bones in his right wrist in 2016 and a fracture in his left knee in 2017. On 26 June 2018 he suffered a fracture at the base of the fifth metatarsal of his right foot.

6. On 9 September 2019 he was diagnosed with a fracture of the fifth metatarsal of his left foot. That fracture he suffered after being pulled over by the police on 5 September 2019. After he was pulled over by the police, he stepped out of the car and went to sit on the footpath and in the process of doing so he rolled his left ankle on a rock that was in the grass on which he went to sit. He felt immediate pain and that was in fact the fracture diagnosed on 9 September 2019.

7. The appellant has had major surgery and major physical problems throughout his young life. That has made it almost impossible for him to find meaningful work. He has found meaningful work but as a volunteer acting as an assistant deacon in his local parish, helping out with the Liturgy and I assume also with the benevolent activities of his church. The appellant desperately wants to find work and become independent of his family. That is completely natural and understandable. The appellant’s physical problems have led to associated psychological problems which is completely understandable in light of his pain.

8. The appellant has been attending St George Hospital Pain Clinic since May 2019 for chronic pain. He has been under the care of Dr Cox, a pain specialist, I assume in the normal course that he is a specialist anaesthetist. He is under the care of Mr Scott Swinson, a physiotherapist and under Ms Rebecca Norwood, a psychologist. There is before me a report from Ms Norwood as well as a report from Dr Cox.

9. Chastened by the experience of 5 September 2019 the appellant enrolled himself in pain management program that ran between 20 November and 11 December 2019. That is described in some detail by Ms Norwood in her report. The report from Dr Cox makes it clear that he was aware that the appellant had, in the past, used cannabis to treat his pain but Dr Cox has advised him that he is unable to recommend cannabis for medical purposes because of insufficient evidence to support its use in the management of persistent pain. The Court is aware there is a medical conversation about the use of cannabis and, as I understand it, what is now being recommended is the use of cannabis oil from which the active ingredients of cannabis sativa, namely THC, has been removed so that it cannot produce the “high” which is sought by many cannabis users. Clearly Mr Albert has accepted Dr Cox’s advice now and has abstained from cannabis.

10. He asks me to give him the benefit of s 10 fearing that a conviction for the possession of a prohibited drug would impede his earnest attempts to find work. The appellant is currently studying a Diploma of Hospitality Management. For that purpose he has been attending the college of TAFE at Loftus. That course’s usual duration is one year but so far the appellant has been studying it for two years because his studies are interrupted by his injuries, pain and a necessity for treatment. However he has nearly completed the course. In his written submission to me he tells me that he only has “a bit to go” and that he is very close to completing the course. He points out that his future prospects of a career are limited due to his medical condition and he could not perform any form of manual work but administrative or clerical work might be best suited for him, desk-bound work or the like and that generally requires a clean criminal record. In the circumstances of this unusual case I am prepared to accede to the appellant’s application.

11. I set aside the conviction recorded and the sentence passed by the Local Court at Sutherland on 10 October 2019. Stand up please Mr Albert. Under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction but having regard to the health of the offender I am satisfied that it is expedient to release the offender on a conditional release order. I order that the offender be released on a conditional release order for a period of 12 months. Conditions of the order are as follows:

1. you are not to commit any offence,

2. you are to appear before the Court if called upon to do so at any time during the term of the conditional release order,

3. you must abstain from illicit drugs.

Any other orders sought Ms Hawke?

HAWKE: No thank you your Honour.

HIS HONOUR: Happy with that outcome?

APPELLANT: Thank you your Honour, thank you.

HIS HONOUR: Now I think you are supposed to go to the Registry aren’t you?

HAWKE: Yes.

HIS HONOUR: You have to go to the Registry and Ms Hawke will tell you where it is and they will give you the paper work, all right?

APPELLANT: No worries.

HIS HONOUR: In the old days it was to go to sign the bond, they still require you to turn up so they can give you the piece of paper.

APPELLANT: Thank you your Honour.

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Decision last updated: 14 April 2020