You be the Judge VELS Drug Trafficking Slides

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Trafficking in a drugof dependence
Case study for VELS
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1. What is sentencing?

• What laws guidea judge when sentencing?

Photo John French / Courtesy of The Age
Chief Justice Marilyn Warren of the Supreme
Court of Victoria
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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

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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

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Types of sentences
Most severe

• Imprisonment
• Drug treatment order
• Community correction order
• Fine
• Adjourned undertaking

Least severe
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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
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Purposes of sentencing
These are the ONLY purposes for which sentences
can be given
Sentencing Act 1991 s 5(1)
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Principle of parsimony
Sentencing Act 1991 ss 5(3) ?(7)
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Factors that must be considered
Factors that must be consideredwhen sentencing
Aggravating or mitigating factors
Maximum penalty current sentencing practices
Type of offence how serious
Circumstancesof the offender
Victim
Relevant Acts of Parliament previouscourt
decisions
Factors making the crime worse, intention,
effects, method, motive, weapons, role the
offender played
Prior offences, age, character, mental
state.Alcohol, drug, orgambling
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
theseriousnessof the crime
Victim Impact Statement
Sentencing Act 1991 s 5(2)
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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

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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

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Non-parole period

• Parole is the prisoners 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

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3. The crime and the time

• What istrafficking in a drugof dependence?
• What is themaximum penalty?

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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
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What does traffick mean?

• Traffick
• To prepare a drug of dependence for trafficking
• To manufacture a drug of dependence or
• 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
  1981.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
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Trafficking in a drug of dependence ? people
sentenced
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Trafficking in a drug of dependence sentence
types
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Length of imprisonment
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Age gender of people sentenced
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4. The case

• What arethe facts ofthis case?

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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 Terris mother

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The crime 1

• Terri and her mum came to Melbourne for a weeks
  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

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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

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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

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5. The sentence

• What sentence would you give?

Photo Department of Justice Regulation
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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?

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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
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What the judge decided

• Terris case, County Court
• 12 months community correction order and120
  hours unpaid community work
• Judges comments
• You are a youthful offender and, thus, your
  rehabilitation is a significant factor for me to
  consider in sentencing you on this offence

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Order in addition to sentence

• As well as the sentence imposed on Terri,the
  judge ordered that a sample of her DNA be taken

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6. 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