Trafficking in a drug of dependence Case study for VELS

2 Sentencing Advisory Council, What is sentencing? What laws guide a judge when sentencing? Photo: John French / Courtesy of The Age Chief Justice Marilyn Warren of the Supreme Court of Victoria

3 Sentencing Advisory Council, 2015 Who is responsible for sentencing? In Australia, responsibility for sentencing is spread among 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 that 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, 2015 Where is sentencing law found? Sentencing Act 1991 Children, Youth and Families Act 2005 Common law – previous court judgments Various Acts and Regulations creating particular offences, for example: –Crimes Act 1958 deals with a range of crimes, including injury offences –Road Safety Act 1986 deals with a range of driving offences, including drink driving and drug driving

5 Sentencing Advisory Council, 2015 Types of sentences  Imprisonment  Drug treatment order  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, 2015 Purposes of sentencing These are the ONLY purposes for which sentences can be given Sentencing Act 1991 s 5(1) PURPOSES OF SENTENCING Community protection Deterrence Rehabilitation Denunciation Just punishment

8 Sentencing Advisory Council, 2015 Principle of parsimony Sentencing Act 1991 ss 5(3)  (7) Parsimony ~ extreme care when imposing punishment ~ Where a choice of punishment exists, the 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 provided it meets the purposes of sentencing

9 Sentencing Advisory Council, 2015 Factors that must be considered Sentencing Act 1991 s 5(2) Aggravating or mitigating factors Maximum penalty & current sentencing practices Type of offence & how serious Circumstances of the offender Victim Relevant Acts of Parliament & previous court decisions Factors making the crime worse, intention, effects, method, motive, weapons, role the offender played Prior offences, age, character, & mental state. Alcohol, drug, or gambling addiction. 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 Factors that must be considered when sentencing

10 Sentencing Advisory Council, 2015 Victim Impact Statements If a court finds a person guilty, a victim of the offence may make a Victim Impact Statement (VIS) A VIS contains details of any injury, loss, or damage suffered by the victim as a direct result of the offence A person who has made a VIS can request that it be read aloud during the sentencing hearing

11 Sentencing Advisory Council, 2015 How long is a sentence? Cumulative  sentences for two or more crimes that run one after the other, e.g. two x five-year prison sentences served cumulatively = 10 years in prison Concurrent  sentences for two or more crimes that run at the same time, e.g. two x five-year prison sentences served concurrently = five years in prison The total effective sentence (TES) (or head sentence)  the total imprisonment sentence for all offences within a case, after orders making sentences cumulative or concurrent

12 Sentencing Advisory Council, 2015 Non-parole period Parole is the prisoner’s release from prison before the end of his or her total possible prison sentence, subject to conditions (e.g. regular reporting to a parole officer) A non-parole period: is set by the court is the part of the sentence that must be served in prison must be set by the court for sentences of two years or more may or may not be set for sentences of one to two years is not set if the sentence is less than one year

13 Sentencing Advisory Council, The crime and the time What is trafficking in a drug of dependence? What is the maximum penalty?

14 Sentencing Advisory Council, 2015 Trafficking in a drug of dependence A person who, without being authorised by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence Maximum penalty The maximum penalty for trafficking in a drug of dependence is Level 4 imprisonment (maximum 15 years’ imprisonment) and/or a fine of 1,800 penalty units Drugs, Poisons and Controlled Substances Act 1981 s 71AC

15 Sentencing Advisory Council, 2015 What does ‘traffick’ mean? Traffick a.To prepare a drug of dependence for trafficking b.To manufacture a drug of dependence or c.To sell, exchange, agree to sell, offer for sale, or have in possession for sale a drug of dependence Drug of dependence A drug that is contained in Schedule 11 of the Drugs, Poisons and Controlled Substances Act Over 120 different drugs are listed in this Schedule Traffickable quantity In the case of pseudoephedrine  100 grams Drugs, Poisons and Controlled Substances Act 1981 ss 3 and 70

16 Sentencing Advisory Council, 2015 Trafficking in a drug of dependence  people sentenced

17 Sentencing Advisory Council, 2015 Trafficking in a drug of dependence – sentence types

18 Sentencing Advisory Council, 2015 Length of imprisonment

19 Sentencing Advisory Council, 2015 Age & gender of people sentenced

20 Sentencing Advisory Council, The case What are the facts of this case?

21 Sentencing Advisory Council, 2015 The offender Terri was 19 at the time of the offence She has been found guilty of one count of trafficking in a drug of dependence The offending was initiated by Terri’s mother

22 Sentencing Advisory Council, 2015 The crime 1 Terri and her mum came to Melbourne for a week’s holiday They drove around Melbourne and Geelong in a hire car buying packets of decongestant tablets from pharmacies Terri would enter the pharmacy, buy one to four boxes of tablets, and return to the car with tablets and receipts They had an agreement to sell the tablets for $20 a box Their actions aroused suspicions and a number of pharmacies reported them to the police

23 Sentencing Advisory Council, 2015 The crime 2 The police intercepted them when they returned the car to the hire company The police recovered 3,263 tablets that had been removed from their packets and packed in a shopping bag and a plastic container with a misleading label The tablets contained enough pseudoephedrine (321 grams) to make between 145 and 232 grams of methylamphetamine

24 Sentencing Advisory Council, 2015 Factors for consideration Terri has not been convicted before She works in casual employment in the hospitality industry and is involved in a sports club as a coach, vice-captain, and fundraiser The judge accepted that she may not have realised that she was trafficking in a drug of dependence, because the tablets could be readily bought without a prescription Terri pleaded guilty at an early stage and was cooperative from the moment of her arrest Terri feels genuine remorse for what she has done

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

26 Sentencing Advisory Council, 2015 You decide … What sentence would you give? If imprisonment, what would be the total effective sentence and the non-parole period? If a community correction order, what would be the length of the order? What conditions? If a fine, what would be the amount of the fine?

27 Sentencing Advisory Council, 2015 The maximum penalty Trafficking in a drug of dependence A person who, without being authorised by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence Penalty: Level 4 imprisonment and/or fine (maximum 15 years’ imprisonment and/or 1,800 penalty units) Terri is guilty of one count of trafficking in a drug of dependence and could receive: possible maximum imprisonment of 15 years possible maximum fine of 1,800 penalty units Drugs, Poisons and Controlled Substances Act 1981 s 71AC

28 Sentencing Advisory Council, 2015 What the judge decided Terri’s case, County Court 12 months community correction order and 120 hours unpaid community work Judge’s comments ‘You are a youthful offender and, thus, your rehabilitation is a significant factor for me to consider in sentencing you on this offence’

29 Sentencing Advisory Council, 2015 Order in addition to sentence As well as the sentence imposed on Terri, the judge ordered that a sample of her DNA be taken

30 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 & Regulation