drug trafficking large commercial quantity

Drug Traffickinglarge commercial quantity

2 Sentencing Advisory Council, 2012

1. Sentencing origin and range

What is the origin and range of sentences available to a judge in Victoria?

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Chief Justice Marilyn Warren of the Supreme Court of Victoria


Who is responsible for sentencing?

In Australia, responsibility for sentencing is spread between

three groups

Parliament ~ makes the laws ~

Government~ puts laws into operation ~

Courts ~ interpret the laws ~

Creates offences and decides what the maximum penalties will be

Makes the rules the courts must apply to cases

Sets up punishments for judges and magistrates to use

Apply the law within the framework set up by Parliament

Set specific sentences for individual offenders

Correctional authorities (e.g. prisons) – control offenders after sentencing

Adult Parole Board – supervises offenders who are on parole


Where is sentencing law found?

• Sentencing Act 1991

• Children, Youth and Families Act 2005

• Common law – previous court judgements

• Various Acts and Regulations creating particular offences, e.g.:

–Crimes Act 1958 deals with a range of crimes including injury offences

–Road Safety Act 1986 deals with offences related to driving under the influence of drugs or alcohol.


Types of sentences

imprisonment

drug treatment order (max 2 years)

suspended sentence of imprisonment (max 3 years – higher courts; 2 years – Magistrates’ Court)

community correction order

fine

adjourned undertaking

Most severe

Least severe


2. Sentencing theory

What must a judge consider when deciding what sentence to impose?

Source: Victorian Sentencing Manual, Judicial College of Victoria


Purposes of sentencing

These are the ONLY purposes for which sentences might be given

Sentencing Act 1991, s 5(1)

PURPOSES OF SENTENCING

Protect the community Deterrence

RehabilitationDenunciate

Fair punishment


Principle of parsimony

Sentencing Act 1991, ss 5(3), 5(4), 5(6), 5(7)

Judges should choosethe most straight-forwardsolution when sentencing

Parsimony~ taking extreme care in using resources ~

If a choice of punishmentexists a judge should take care to choose the least

severe option that will achieve the purposes of sentencing

Example If there is a choice between imposing a fine or a community correction order, a

fine should be imposed


Factors that must be considered

Maximum penalty& current sentencing

practice

Type of offence& how serious

Offender’sdegree of

responsibility& culpability

VictimAggravating or

mitigatingfactors

Relevant Actsof Parliament& statistical

data

Factors making the crime worse, intention, effects, method, motive,

weapons,role the offender

played

Prior offences,age, gender,race, culture,

character, mentalstate, alcohol,

drugs, gambling,personal crisis,

guilty plea

Impact of crimeon victim (e.g.psychological

or physicaltrauma), materialor financial loss

Factors thatincrease orlessen the

seriousnessof the crime

Victim impactstatement

Sentencing Act 1991, s 5(2AC(2))

Factors that must be considered when sentencing


How long is a sentence really?

Cumulative or concurrent?• Cumulative sentences are sentences for two or more crimes that

run one after the other, rather than at the same time – so two five-year prison sentences served cumulatively would mean a total of 10 years in prison

• Concurrent sentences are sentences for two or more crimes that run at the same time – so two five-year prison sentences served concurrently would mean a total of 5 years in prison

• The head sentence is the sentence given for each crime before a non-parole period is set

• The total effective sentence (TES) is the total sentence for all crimes once they have been made cumulative or concurrent


Non-parole period

• Non-parole period is set by the court and is the part of the sentence the offender has to serve in prison before being eligible for parole

• A non-parole period must be fixed for sentences of 2 years or more

• A non-parole period may be fixed for sentences of 1–2 years

• A non-parole period cannot be fixed for sentences of less than 1 year

• Parole is the release of a prisoner before the end of a sentence, subject to certain conditions (e.g. regular reporting to parole officer), to help him or her settle back into the community


3. The crime and the time

Photo: Trevor Poultney

What is ‘trafficking in a drug of dependence – large commercial quantity’ and what penalties does it bring?


Trafficking in a drug of dependence

• A person is guilty of trafficking in a drug of dependence – large commercial quantity, if he/she trafficks or attempts to traffick in a quantity of a drug of dependence or of 2 or more drugs of dependence that is not less than the large commercial quantity applicable to that drug of dependence or those drugs of dependence.

• A person guilty of trafficking in a drug of dependence – large commercial quantity is guilty of an indictable offence and liable to Life imprisonment plus a penalty of not more than 5000 penalty units.

Drugs, Poisons and Controlled Substances act 1991 s. 71


People sentenced

18 15 131

1920

16

14

120

0

10

20

2004-05 2005-06 2006-07 2007-08 2008-09

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People sentenced Immediate custodial sentence


Sentence types

1

14

20

1513

4

1

1

1

0

10

20

2004-05 2005-06 2006-07 2007-08 2008-09

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Imprisonment Imprisonment & fine Wholly suspended


Imprisonment & non-parole period

10y 6m

5y 9m

6y

8y 5m

7y

7y 6m 3y 6m 3y 5y 3m 4y 5m0

12

24

36

48

60

72

84

96

108

2004-05 2005-06 2006-07 2007-08 2008-09

Mo

nth

s

Average TES length Average non-parole period


Trafficking in a drug of dependence

2

2 5 4

5 4

4

2

5

2

2

3

4 2

2

2

4

<1

1

2

3

4

5

6

7

8

9

10

11

12

0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Total effective sentence (years)

No

n-p

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year

s)


18

Gender & age of people sentenced

8

12 12 12

7

9

0 0

1

0

2

0 0 01

6

0

6

12

19 20-24 25-29 30-34 35-39 40-44 45-49 50+

Age (years)

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Male Female


What are the facts of this case?

4. The case


The offender

• Richard Brown is a 23-year-old man

• Brown was 21 at the time of his arrest

• He has pleaded guilty to one count of trafficking in not less than a large commercial quantity of ecstasy

• The maximum penalty for trafficking in not less that a large commercial quantity of a drug of dependence is life imprisonment


The crime 1

• While police were conducting surveillance on Brown’s house they observed Julie Missen visit the house

• When Missen left police intercepted her vehicle and found 100 ecstasy tablets

• Missen admitted she had been purchasing 100 to 500 ecstasy tablets a week from Brown for approximately two months


The crime 2

• The following day the police arrested Brown while he was sitting in his car in a car park, finding 3,430 ecstasy tablets in a sports pack on the back seat, a further 10 tablets on his person and $2,640 in cash

• Brown claimed that he was merely a courier, being paid $500 a week by the person who supplied him drugs, whom he would not name

• Admissions from Brown and evidence found by the police suggested that Brown had trafficked at least 3.91 kilograms of ecstasy


Factors for consideration

• Brown has had no prior convictions

• He excelled at sport and attended the Australian Institute of Sport for 2 years before going to Texas on a scholarship

• On his return to Australia he found his parents had separated and his mother was suffering from depression

• Brown could only find employment offering low wages on which he struggled to survive

• He readily confessed to the police and pleaded guilty at an early stage

• Brown spent 12 months on remand in prison where he was assaulted twice and racially abused


5. The sentence

What sentence would you give?

Photo: Department of Justice


You decide …

• If imprisonment, what would be the head sentence and non-parole period?

• If a partially suspended sentence, what would be the length of sentence and operational period?

• If a totally suspended sentence, what would be the length of sentence and operational period?


The maximum penalty

A person who trafficks in a quantity of a drug of dependence, or of 2 or more drugs of dependence, that is not less than a large commercial quantity, is guilty of an indictable offence and liable to Life imprisonment and a fine of not more than 5000 penalty units.

Brown, guilty of one count of trafficking in not less than a large commercial quantity of ecstasy, could receive a maximum of life imprisonment and a fine of up to 5000 penalty units.

Drugs, Poisons and Controlled Substances Act 1981, s 71


What the trial judge decided

Richard Brown’s case, County Court• Count 1 5 years’ imprisonment• Non-parole period 2 years

The trial judge noted that• there had been significant and inordinate delay in bringing the

case to trial

• it was not possible to place a specific figure on the amount of ecstasy that Brown had trafficked, only that it was proved beyond a reasonable doubt that the amount was in excess of one kilogram

• It appeared that Brown was more than the mere courier he claimed to be and that intercepted telephone conversations showed that he was active in promoting and concluding sales of drugs


6. The appeal

What grounds might there be to appeal against the sentence?

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Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria


Appeal

The DPP appealed the sentence on the grounds that the sentencing judge:

• imposed a sentence (including the non-parole period) which was manifestly inadequate

• erred in finding that there had been a significant and inordinate delay in the prosecution

• erred in finding that it was only possible to find beyond reasonable doubt that Brown trafficked in an amount in excess of one kg of ecstasy, particularly in light of his concessions of trafficking in at least 3.91 kg


What the Court of Appeal decided

DPP v Brown• Total effective sentence 6 years

• Non-parole period 3 years

Decision• ‘The scale of the respondent’s dealings, and the time over which they occurred,

resulted in trafficking in substantially more than a quantity for which the maximum sentence is life imprisonment. Recognising the harm which trafficking in large commercial quantities of drugs of dependence inflicts upon the community, and the view of the legislature of the gravity of the offence, we do not consider the sentence to be one which could have been imposed in the exercise of a reasonable sentencing discretion.’

• ‘Importantly, while the quantity was very substantial indeed, the respondent himself profited little, it would appear. As too often happens, the true profiteer is not before the Court.’


7. Conclusion

Effective sentencing achieves a balance between the interests of society, the concerns of the victim and the best interests of the offender.

The more information society has about crimes and the people involved in them, the more reasonable it is in its demands about sentencing.

Photo: Department of Justice

drug trafficking large commercial quantity

Documents

sentencing origin

sentencing theorywhat

purposes of sentencing

victorian sentencing

crimes act

advisory council

givensentencing act

cumulative sentences