Drug Trafficking large commercial quantity

2 Sentencing Advisory Council, Sentencing origin and range What is the origin and range of sentences available to a judge in Victoria? Photo: John French / Courtesy of The Age Chief Justice Marilyn Warren of the Supreme Court of Victoria

3 Sentencing Advisory Council, 2012 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

4 Sentencing Advisory Council, 2012 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.

5 Sentencing Advisory Council, 2012 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

6 Sentencing Advisory Council, Sentencing theory What must a judge consider when deciding what sentence to impose? Source: Victorian Sentencing Manual, Judicial College of Victoria

7 Sentencing Advisory Council, 2012 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 Rehabilitation Denunciate Fair punishment

8 Sentencing Advisory Council, 2012 Principle of parsimony Sentencing Act 1991, ss 5(3), 5(4), 5(6), 5(7) Judges should choose the most straight-forward solution when sentencing Parsimony ~ taking extreme care in using resources ~ If a choice of punishment exists 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

9 Sentencing Advisory Council, 2012 Factors that must be considered Maximum penalty & current sentencing practice Type of offence & how serious Offender’s degree of responsibility & culpability Victim Aggravating or mitigating factors Relevant Acts of Parliament & statistical data Factors making the crime worse, intention, effects, method, motive, weapons, role the offender played Prior offences, age, gender, race, culture, character, mental state, alcohol, drugs, gambling, personal crisis, guilty plea Impact of crime on victim (e.g. psychological or physical trauma), material or financial loss Factors that increase or lessen the seriousness of the crime Victim impact statement Sentencing Act 1991, s 5(2AC(2)) Factors that must be considered when sentencing

10 Sentencing Advisory Council, 2012 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

11 Sentencing Advisory Council, 2012 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

12 Sentencing Advisory Council, 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?

13 Sentencing Advisory Council, 2012 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

14 Sentencing Advisory Council, 2012 People sentenced

15 Sentencing Advisory Council, 2012 Sentence types

16 Sentencing Advisory Council, 2012 Imprisonment & non-parole period

17 Sentencing Advisory Council, 2012 Trafficking in a drug of dependence

18 Sentencing Advisory Council, Gender & age of people sentenced

19 Sentencing Advisory Council, 2012 What are the facts of this case? 4. The case

20 Sentencing Advisory Council, 2012 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

21 Sentencing Advisory Council, 2012 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

22 Sentencing Advisory Council, 2012 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

23 Sentencing Advisory Council, 2012 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

24 Sentencing Advisory Council, The sentence What sentence would you give? Photo: Department of Justice

25 Sentencing Advisory Council, 2012 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?

26 Sentencing Advisory Council, 2012 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

27 Sentencing Advisory Council, 2012 What the trial judge decided Richard Brown’s case, County Court Count 15 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

28 Sentencing Advisory Council, The appeal What grounds might there be to appeal against the sentence? Photo: Department of Justice Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria

29 Sentencing Advisory Council, 2012 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

30 Sentencing Advisory Council, 2012 What the Court of Appeal decided DPP v Brown Total effective sentence6 years Non-parole period3 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.’

31 Sentencing Advisory Council, 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