Transcript You be the Judge VCE Drug Trafficking Slides

Drug trafficking
large commercial quantity
Case study for VCE
Photo: John French / Courtesy of The Age
1. Sentencing origin and range
What is the origin
and range of
sentences
available to a
judge in Victoria?
Chief Justice Marilyn Warren of the
Supreme Court of Victoria
Sentencing Advisory Council, 2015
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Who is responsible for sentencing?
In Australia, responsibility for
sentencing is spread among
three groups
Parliament
~ makes 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
Courts
~ interpret the laws ~
 Apply the law within the
framework set up by
parliament
 Set specific sentences for
individual offenders
Government
~ puts laws into operation ~
 Correctional authorities (e.g.
prisons) – control offenders
after sentencing
 Adult Parole Board –
supervises offenders who
are on parole
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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Types of sentences
Most severe
 Imprisonment
 Drug treatment order
 Community correction order
 Fine
 Adjourned undertaking
Least severe
Sentencing Advisory Council, 2015
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2. Sentencing theory
What must a
judge consider
when deciding
what sentence
to impose?
Source: Victorian Sentencing Manual, Judicial College of Victoria
Sentencing Advisory Council, 2015
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Purposes of sentencing
These are the ONLY
purposes for which
sentences can be given
Community
protection
Denunciation
Sentencing Act 1991 s 5(1)
Just
punishment
Deterrence
PURPOSES OF
SENTENCING
Rehabilitation
Sentencing Advisory Council, 2015
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Principle of parsimony
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
Sentencing Act 1991 ss 5(3)(4), 5(6) (7)
Sentencing Advisory Council, 2015
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Factors that must be considered
Factors that must be considered
when sentencing
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)
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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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
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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)
Sentencing Advisory Council, 2015
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3. The crime and the time
What is
trafficking in a drug
of dependence –
large commercial
quantity?
What penalties does
it bring?
Photo: Trevor Poultney
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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Trafficking in a drug of dependence  people sentenced
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Length of imprisonment
Sentencing Advisory Council, 2015
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Baseline sentencing – current median
Sentencing Advisory Council, 2015
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Baseline sentencing – baseline sentence
Sentencing Advisory Council, 2015
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Age & gender of people sentenced
Sentencing Advisory Council, 2015
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Average total effective sentence & non-parole period
Sentencing Advisory Council, 2015
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Total effective sentence & non-parole period
Sentencing Advisory Council, 2015
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4. The case
What are
the facts
of this
case?
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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5. The sentence
What sentence
would you give?
Photo: Department of Justice & Regulation
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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?
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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
Drugs, Poisons and Controlled Substances Act 1981 s 71
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
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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Photo: Department of Justice & Regulation
6. The appeal
What grounds
might there be
to appeal
against the
sentence?
Deputy Chief Magistrate Dan Muling sitting in the
Magistrates’ Court of Victoria
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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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’
Sentencing Advisory Council, 2015
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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
Sentencing Advisory Council, 2015
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