Drug trafficking large commercial quantity

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Drug traffickinglarge commercial quantity
Case study for VCE
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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
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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
Parsimony extreme care when imposing punishment

Where a choice of punishment exists,the judge
should take care to choosethe least severe
option that will achieve the purposes of
sentencing
Example - If there is a choice between imposing a
fineor a community correction order, a fine
should be imposedprovided it meets the purposes
of sentencing
Sentencing Act 1991 ss 5(3)?(4), 5(6) ?(7)
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Factors that must be considered
Factors that must be consideredwhen sentencing
Maximum penalty current sentencing practices
Type of offence how serious
Circumstancesof the offender
Victim
Aggravating or mitigating factors
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 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 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)

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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
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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
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Trafficking in a drug of dependence ? people
sentenced
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Length of imprisonment
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Baseline sentencing current median
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Baseline sentencing baseline sentence
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Age gender of people sentenced

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Average total effective sentence non-parole
period


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Total effective sentence non-parole period
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4. The case

• What are the facts of this case?

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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

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The crime 1

• While police were conducting surveillance on
  Browns 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

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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

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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

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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 impose?
• 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

• 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
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What the trial judge decided

• Richard Browns case, County Court
• Count 1 five years imprisonment
• Non-parole period two years
• Trial judges 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

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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
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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

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What the Court of Appeal decided

• DPP v Brown
• Total effective sentence six years
• Non-parole period three years
• Appeal judges comments
• The scale of the respondents 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

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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