Commonwealth drug offences

Drug offences Drug offences are offences that is related to illegal substances/ drugs such as marijuana, cocaine, heroin, etc. The crimes include, trafficking, possession and use.

Offences under the criminal code Div 302: Trafficking controlled drugs Div 303: Commercial cultivation of controlled plants Div 304: Selling controlled plants Div 305: Commercial manufacture of controlled drugs Div 306: Pre-trafficking controlled precursors Div 307: Import-export offences — Springer v R (2007) 177 A Crim R 13; Seng v R [2007] NSWCCA 335; Danial v R [2008] NSWCCA 15; R v Huynh (2008) 180 A Crim R 517; R v Corbett (2008) 181 A Crim R 522; R v Chea [2008] NSWCCA 78 Div 308: Possession offences Div 309: Drug offences involving children Div 310: Harm and danger to children under 14 from serious drug offences Div 311: Combining quantities of drugs, plants or precursors.

Guidelines Judgment For couriers and persons low in the hierarchy of an importing organisation, the following guideline applied at [142]: Quantity levelWeightGuideline (head sentence) Low-level trafficable2 gm – 200 gm5–7 yrs Mid-level trafficable200 gm – 1 kg6–9 yrs High-range trafficable Heroin 1 kg – 1.5 kg / Cocaine 1 kg – 2 kg 7–10 yrs Low-range commercial Heroin 1.5 kg – 3.5 kg / Cocaine 2 kg – 3.5 kg 8–12 yrs Substantial commercial3.5 kg – 10 kg 10–15 yrs Note: This guideline is indicative of head sentences for offences against s 233B involving heroin and/or cocaine: see [102].

Case study Wong v The Queen (2001) 207 CLR 584 Subsequently, the High Court in Wong v The Queen (2001) 207 CLR 584 overturned the guideline. In their joint judgment, Gaudron, Gummow and Hayne JJ held at [87] that, not only was there no jurisdiction or power to issue the guideline, but the principles which informed its construction were flawed by the error in selecting weight of the narcotic as the chief factor in sentencing. While the weight of narcotic is given statutory significance by Parliament in distinguishing between the maximum penalty for offences involving trafficable and commercial quantities, not all offenders will know or suspect how much pure narcotic is to be imported. It is not uncommon for those involved in the importation of narcotics to know little or nothing about what they are dealing with, except that it is a quantity of narcotic. The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represented a departure from fundamental principles: at [68]–[70]. Notwithstanding the criticisms expressed by the High Court, the guideline promulgated by the Court of Criminal Appeal in R v Wong and Leung remain useful, indicating the general pattern of sentences at the time that the guideline judgment was delivered: R v Mas Rivadavia (2004) 61 NSWLR 63 at [65]; R v Chea [2008] NSWCCA 78 at [43]. Chief Justice Spigelman in R v Wong and Leung devoted considerable attention to analysing other cases and the sentencing patterns which emerged from them: R v Taru [2002] NSWCCA 391 at [12]; R v Paliwala (2005) 153 A Crim R 451 at [27]. While the guideline has importance in establishing general sentencing patterns, a discretion remains to allow for the objective and subjective differences that may occur in different cases: R v Mas Rivadavia (2004) 61 NSWLR 63 per Wood CJ at CL at [66]–[67]; R v Karacic (2001) 121 A Crim R 7; R v Whyte (2002) 55 NSWLR 252. The guideline also continues to be of relevance in so far as it identifies the role of the offender — where that is capable of determination — as an important element in sentencing. Further, the quantity of drug, while not the sole or key determinant, is still relevant in determining the extent of an offender’s objective criminality: R v Bezan (2004) 147 A Crim R 430 per Wood CJ at CL at [34