VELS Level 6 Trafficking in a drug of dependence

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, 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 judgments 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  suspended sentence  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, 2012 Purposes of sentencing These are the ONLY purposes for which sentences might be given Sentencing Act 1991, s 5(1) PURPOSES OF SENTENCING Community protection Deterrence Rehabilitation Denunciation Fair punishment

8 Sentencing Advisory Council, 2012 Principle of parsimony Sentencing Act 1991, ss 5(3), 5(4), 5(5), 5(6), 5(7) Judges should choose the most straightforward 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 Sentencing Act 1991, s 5(2AC(2)) 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 Factors that must be considered when sentencing

10 Sentencing Advisory Council, 2012 How long is a sentence? Cumulative sentences are sentences for two or more crimes that run one after the other, e.g. 2 x 5-year prison sentences served cumulatively = 10 years in prison Concurrent sentences are sentences for two or more crimes that run at the same time, e.g. 2 x 5-year prison sentences served concurrently = 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 is set by the court is the part of the sentence the offender must serve in prison before being eligible for parole must be fixed for sentences of 2 years or more may be fixed for sentences of 1–2 years Is not given if the sentence is 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 What is trafficking in a drug of dependence? What is the maximum penalty?

13 Sentencing Advisory Council, 2012 Trafficking in a drug of dependence Maximum penalty 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 (15 years maximum) Drugs, Poisons and Controlled Substances Act 1981, s. 71AC

14 Sentencing Advisory Council, 2012 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

15 Sentencing Advisory Council, 2012 Drug trafficking – people sentenced

16 Sentencing Advisory Council, 2012 Drug trafficking – sentence types

17 Sentencing Advisory Council, 2012 Age and gender of people sentenced

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

19 Sentencing Advisory Council, 2012 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 maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment and/or 1800 penalty units

20 Sentencing Advisory Council, 2012 The crime 1 Terri and her mum came to Melbourne for a week’s holiday They drove around Melbourne and Geelong in a hired car buying packets of decongestant tablets from pharmacies Terri would enter the pharmacy, buy 1–4 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

21 Sentencing Advisory Council, 2012 The crime 2 The police intercepted them when they returned the car to the hire company The police recovered 3,263 tablets which 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

22 Sentencing Advisory Council, 2012 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

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

24 Sentencing Advisory Council, 2012 You decide … What sentence would you give? If imprisonment, what would be the head sentence and non-parole period? If a community correction order, what would be the length of the order? If a fine, what would be the amount of the fine?

25 Sentencing Advisory Council, 2012 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 1800 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 1800 penalty units Drugs, Poisons and Controlled Substances Act 1981 s. 71AC

26 Sentencing Advisory Council, 2012 What the trial judge decided Terri’s case, County Court Twelve months’ community correction order and 120 hours of 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.’

27 Sentencing Advisory Council, 2012 Order in addition to sentence As well as the sentence imposed on Terri, the judge ordered that a sample of DNA be taken

28 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