By Paul Gregoire and Ugur Nedim
Last week, the NSW Court of Criminal Appeal (NSWCCA) determined that a precedent followed by the state’s courts had become a “judicially imposed constraint”.
That rule stated that a person convicted of a substantial drug supply must be sentenced to full time imprisonment unless there were ‘exceptional circumstances’.
Over recent years, former senior law enforcement and law officials, as well as a number of politicians, have been calling for less punitive measures when dealing with the personal possession of illicit substances.
Now, it seems members of the NSW judiciary are reasoning that harsh penalties meted out to people on drug charges are failing to achieve the objective of general deterrence, and moreover are not necessarily called for by the law. But this time, it’s on the supply side.
A relic of the past
The rule regarding imprisonment in the absence of exceptional circumstances was espoused in the 1990 NSWCCA judgement of R v Clark, delivered by Justice Hunt.
But on 23 August this year, Justice Simpson of the same court found that the approach is not consistent with section 5(1) of the Crimes (Sentencing Procedure) Act 1999 which states:
“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”
Her Honour ruled it is open for a judge to impose a non-custodial sentence for a significant drug supply, despite the absence of exceptional circumstances.
An early morning bust
Liam Robertson was only 19-years-old, when NSW police officers spotted him sitting in a car parked in a street in Kellyville at around 4.20 am on 10 June last year. The young man was in possession of a small bag containing cannabis, and a large bong. There were two other males sitting in the vehicle.
On searching the car, officers found a small safe containing a number of drugs including, 23.36 grams of MDMA, and 19.9 grams of psilocin: the psychoactive compound found in magic mushrooms.
Due to the quantities of drugs found, it was deemed Mr Robertson had them in his possession for the purpose of supply.
At the police station, officers took possession of the young man’s mobile phone. Text messages suggested that Robertson had twice agreed to supply others with small quantities of psilocin between the dates of 30 May and 4 June.
He was charged with four counts of supply of prohibited drugs under section 25(1) of the Drug Misuse and Trafficking Act 1985. The quantity meant he was facing maximum penalties of 15 years imprisonment.
Robertson entered guilty pleas to all four charges in the local court, and the matter was committed for sentencing in the District Court.
A low risk of reoffending
On 4 April this year, Robertson appeared in court for sentencing.
It was heard the young man came from a stable family environment and had no prior convictions.
At the time of his arrest, Robertson was a process worker in a medical manufacturing company.
The young man began using drugs in his teens, as alcohol didn’t agree with him. He became involved in the supply side, after he started buying in bulk for personal use to save money. He’d since sold to friends and acquaintances.
His father gave evidence the teenager had turned his life around since arrest. He had stopped using drugs and complied with his NSW bail conditions, which included a curfew. A psychologist gave an opinion that he had good prospects of rehabilitation.
His hands were tied
District Court Judge Buscombe accepted that Robertson had stopped using drugs, that he was remorseful, that his rehabilitation prospects were excellent and that there was little chance he would reoffend. He also assessed the objective gravity of the offence as “well below the mid-range.”
However, his Honour thought it was nevertheless necessary to sentence him to full-time custody.
The judge remarked that as it had been established beyond a reasonable doubt “that the offender was supplying drugs in a substantial way,” “the general principle is that unless there are exceptional circumstances a sentence of full-time imprisonment should be imposed.”
This “principle is long standing in” NSW, Judge Buscombe continued. His Honour sentenced the young man to an aggregate sentence of 20 months imprisonment, with a non-parole period of 10 months.
The sentence took into account a 25 percent discount for his early guilty pleas.
An erroneous view
Mr Robertson appealed his sentence to the NSWCCA.
His lawyers argued that the sentencing judge made an error by failing to consider the imposition of a non-custodial sentence, such as an intensive correction order (ICO). They further submitted the ultimate sentence was manifestly excessive.
An ICO is a sentence served outside of prison that requires an offender to undertake 32 hours community work a month, to be of good behaviour and to regularly meet with a Community Corrections officer. It can also include drug and alcohol testing, rehabilitation programs, a curfew and electronic monitoring.
NSWCCA Justice Simpson found that an ICO is an option “even in cases of drug supply”.
Her Honour noted that it was clear that the sentencing judge had excluded this possibility, because of the established “principle” he referred to.
The judge found that due to this error, it was necessary to resentence Mr Robertson.
There is no statutory requirement
Justice Simpson emphasised that section 5(1) of the Crimes (Sentencing Procedure) Act prescribes that a judicial officer is to sentence an offender to imprisonment only if there is no other option.
Her Honour stated that this is the “starting point in any sentencing exercise.”
She reasoned that in stating what judge Buscombe called, “‘the general principle,’ that is, that offences of drug dealing to a substantial degree will necessarily be met by sentences of imprisonment, the sentencing judge was reflecting a long line of decisions of this Court.”
Her Honour doubted that “principle” was the right word. “It may more accurately be called a judicially imposed constraint on the exercise of the sentencing discretion,” Her Honour continued.
While the Clark ruling works as a yardstick for sentencing judges, it provides no statutory requirement, she found.
Her Honour added that, besides this, the “imposed constraint” fails to establish what substantial drug dealing is, along with what might constitute the “exceptional circumstances,” and also “fails to identify the source of the exception.”
She found that the formulation in Clark, and the long line of authorities that have applied it, effectively dictate, “in cases of drug trafficking, non-compliance with the mandate of section 5.”
Indeed, Her Honour found, the “rule” requires that a judge must impose a sentence, while NSW legislature actually provides a number of other options.
A sign of the times
Justice Simpson found that the circumstances surrounding Robertson’s case did warrant consideration of an ICO.
However, as the young man had already served four months prison, and due to the timeframe it takes to impose an ICO, Her Honour took another path.
She resentenced Mr Robertson to 12 months imprisonment, but suspended that sentence under section 12(1) of the Crimes (Sentencing Procedure) Act. This means he will serve his sentence on the outside, whilst entering into the requirements of a good behaviour bond.
This decision is significant for drug supply cases, and others where it has been determined that a defendant can only escape prison sanction by demonstrating exceptional circumstances.
It dictates that sentencing judges are not shackled by the “judicially imposed constraint” of the Clark decision, paving the way for greater consideration of non-custodial sentences.