1. Drug trafficking large commercial quantity Case study for VCE

2. 2 Sentencing Advisory Council, 2015 1. 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. 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. 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. 5 Sentencing Advisory Council, 2015 Types of sentences  Imprisonment  Drug treatment order  Community correction order  Fine  Adjourned undertaking Most severe Least severe

6. 6 Sentencing Advisory Council, 2015 2. Sentencing theory What must a judge consider when deciding what sentence to impose? Source: Victorian Sentencing Manual, Judicial College of Victoria

7. 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. 8 Sentencing Advisory Council, 2015 Principle of parsimony Sentencing Act 1991 ss 5(3)  (4), 5(6)  (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. 9 Sentencing Advisory Council, 2015 Factors that must be considered Maximum penalty & current sentencing practices Type of offence & how serious Circumstances of the offender Victim Aggravating or mitigating factors 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 Sentencing Act 1991 s 5(2) Factors that must be considered when sentencing

10. 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. 11 Sentencing Advisory Council, 2015 How long is a sentence really? Cumulative or concurrent? 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. 12 Sentencing Advisory Council, 2015 Non-parole period A non-parole period is set by the court. It is the part of the sentence that must be served in prison before the offender may apply to be released on parole If a prison sentence of two years or longer is imposed, the court must set a non-parole period Courts have a choice of whether or not to set a non-parole period for prison sentences of one to two years A non-parole period cannot be set for prison sentences of less than one year 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)

13. 13 Sentencing Advisory Council, 2015 3. The crime and the time Photo: Trevor Poultney What is trafficking in a drug of dependence – large commercial quantity? What penalties does it bring?

14. 14 Sentencing Advisory Council, 2015 Trafficking in a drug of dependence  large commercial quantity A person is guilty of trafficking in a drug of dependence – large commercial quantity if he or she trafficks or attempts to traffick in a quantity of a drug of dependence or of two 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 Maximum penalty The maximum penalty for trafficking in a drug of dependence – large commercial quantity is life imprisonment and a penalty of not more than 5,000 penalty units Drugs, Poisons and Controlled Substances act 1991 s 71

15. 15 Sentencing Advisory Council, 2015 Trafficking in a drug of dependence  people sentenced

16. 16 Sentencing Advisory Council, 2015 Length of imprisonment

17. 17 Sentencing Advisory Council, 2015 Baseline sentencing – current median

18. 18 Sentencing Advisory Council, 2015 Baseline sentencing – baseline sentence

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

20. 20 Sentencing Advisory Council, 2015 Average total effective sentence & non-parole period

21. 21 Sentencing Advisory Council, 2015 Total effective sentence & non-parole period

22. 22 Sentencing Advisory Council, 2015 What are the facts of this case? 4. The case

23. 23 Sentencing Advisory Council, 2015 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

24. 24 Sentencing Advisory Council, 2015 The crime 1 While police were conducting surveillance on Brown’s house, they observed Julie Missen visiting the house When Missen left, police intercepted her vehicle and found 100 ecstasy tablets Missen admitted that she had been purchasing 100 to 500 ecstasy tablets a week from Brown for approximately two months

25. 25 Sentencing Advisory Council, 2015 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 and was paid $500 a week by the person who supplied him with the drugs  he would not name this person Admissions from Brown and evidence found by the police suggested that Brown had trafficked at least 3.91 kilograms of ecstasy

26. 26 Sentencing Advisory Council, 2015 Factors for consideration Brown has had no prior convictions He excelled at sport and attended the Australian Institute of Sport for two 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 and he struggled to survive on low pay 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

27. 27 Sentencing Advisory Council, 2015 5. The sentence What sentence would you give? Photo: Department of Justice & Regulation

28. 28 Sentencing Advisory Council, 2015 You decide … 1.What sentence would you impose? 2.If imprisonment: –what would be the total effective sentence? –what would be the non-parole period?

29. 29 Sentencing Advisory Council, 2015 The maximum penalty A person who trafficks in a quantity of a drug of dependence, or of two 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 5,000 penalty units Brown is guilty of one count of trafficking in not less than a large commercial quantity of ecstasy and could receive a maximum of life imprisonment and a fine of up to 5,000 penalty units Drugs, Poisons and Controlled Substances Act 1981 s 71

30. 30 Sentencing Advisory Council, 2015 What the trial judge decided Richard Brown’s case, County Court Count 1: five years’ imprisonment Non-parole period: two years Trial judge’s comment 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  intercepted telephone conversations showed that he was active in promoting and concluding sales of drugs

31. 31 Sentencing Advisory Council, 2015 6. The appeal What grounds might there be to appeal against the sentence? Photo: Department of Justice & Regulation Deputy Chief Magistrate Dan Muling sitting in the Magistrates’ Court of Victoria

32. 32 Sentencing Advisory Council, 2015 Grounds for appeal The DPP appealed the sentence on the grounds that the sentencing judge: imposed a sentence (including the non-parole period) that 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

33. 33 Sentencing Advisory Council, 2015 What the Court of Appeal decided DPP v Brown Total effective sentence: six years Non-parole period: three years Appeal judge’s comments ‘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’

34. 34 Sentencing Advisory Council, 2015 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 & Regulation