trafficking in a drug of dependence case study for vels

Trafficking in a drugof dependence

Case study for VELS

2 Sentencing Advisory Council, 2015

1. What is sentencing?

What laws guidea judge when sentencing?

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Chief Justice Marilyn Warren of the Supreme Court of Victoria


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


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


Types of sentences

Imprisonment

Drug treatment order

Community correction order

Fine

Adjourned undertaking

Most severe

Least severe


2. Sentencing theory

What must a judge consider when deciding what sentence to impose?

Source: Victorian Sentencing Manual, Judicial College of Victoria


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


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


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


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


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


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


3. The crime and the time

What istrafficking in a drug

of dependence?

What is themaximum 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

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


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


Trafficking in a drug of dependence people sentenced


Trafficking in a drug of dependence – sentence types


Length of imprisonment


Age & gender of people sentenced


4. The case

What arethe facts ofthis case?


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


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


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


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


5. The sentence

What sentence would you give?

Photo: Department of Justice & Regulation


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?


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


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’


Order in addition to sentence

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


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

trafficking in a drug of dependence case study for vels

Documents

sentencing hearing

sentencing theorywhat

advisory council

victorian sentencing

crimes act

consideredsentencing

givensentencing act

prisonconcurrent sentences