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Trafficking in a drugof dependence
Case study for VELS
2 Sentencing Advisory Council, 2015
1. What is sentencing?
What laws guidea judge when sentencing?
Pho
to: J
ohn
Fre
nch
/ Cou
rtes
y of
The
Age
Chief Justice Marilyn Warren of the Supreme Court of Victoria
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 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 Sentencing Advisory Council, 2015
Types of sentences
Imprisonment
Drug treatment order
Community correction order
Fine
Adjourned undertaking
Most severe
Least severe
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 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
RehabilitationDenunciation
Just punishment
8 Sentencing Advisory Council, 2015
Principle of parsimony
Sentencing Act 1991 ss 5(3) (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 fineor a community correction order, a fine should be imposed
provided it meets the purposes of sentencing
9 Sentencing Advisory Council, 2015
Factors that must be considered
Sentencing Act 1991 s 5(2)
Aggravating ormitigating
factors
Maximum penalty& current sentencingpractices
Type of offence& how serious
Circumstancesof the offender
Victim
Relevant Actsof 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 crimeon victim (e.g.psychological
or physicaltrauma), materialor financial loss
Factors thatincrease orlessen the
seriousnessof the crime
Victim ImpactStatement
Factors that must be consideredwhen sentencing
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 Sentencing Advisory Council, 2015
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
12 Sentencing Advisory Council, 2015
Non-parole period
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)
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
13 Sentencing Advisory Council, 2015
3. The crime and the time
What istrafficking in a drug
of dependence?
What is themaximum penalty?
14 Sentencing Advisory Council, 2015
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
15 Sentencing Advisory Council, 2015
What does ‘traffick’ mean?
Trafficka. To prepare a drug of dependence for traffickingb. To manufacture a drug of dependence orc. To sell, exchange, agree to sell, offer for sale, or have in
possession for sale a drug of dependence
Drug of dependenceA 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 quantityIn the case of pseudoephedrine 100 grams
Drugs, Poisons and Controlled Substances Act 1981 ss 3 and 70
16 Sentencing Advisory Council, 2015
Trafficking in a drug of dependence people sentenced
17 Sentencing Advisory Council, 2015
Trafficking in a drug of dependence – sentence types
18 Sentencing Advisory Council, 2015
Length of imprisonment
19 Sentencing Advisory Council, 2015
Age & gender of people sentenced
20 Sentencing Advisory Council, 2015
4. The case
What arethe facts ofthis case?
21 Sentencing Advisory Council, 2015
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 Terri’s mother
22 Sentencing Advisory Council, 2015
The crime 1
• Terri and her mum came to Melbourne for a week’s 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
23 Sentencing Advisory Council, 2015
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
24 Sentencing Advisory Council, 2015
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
25 Sentencing Advisory Council, 2015
5. The sentence
What sentence would you give?
Photo: Department of Justice & Regulation
26 Sentencing Advisory Council, 2015
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?
27 Sentencing Advisory Council, 2015
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
28 Sentencing Advisory Council, 2015
What the judge decided
Terri’s case, County Court
12 months community correction order and120 hours 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’
29 Sentencing Advisory Council, 2015
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