Paul Gregoire and Ugur Nedim
On 23 August 2017, NSW Criminal Court of Appeal (NSWCCA) Justice Carolyn Simpson found that a precedent followed since the 1990 case of R versus Peter Michael Clark was a “judicially imposed constraint” which is inconsistent with the state’s prevailing sentencing legislation.
Referred to as the “Clark principle,” the rule outlined that a person convicted of a substantial drug supply is to be sentenced to a term of full-time imprisonment unless there are “exceptional circumstances”.
Her Honour was presiding over Robertson versus R, a case where Liam Robertson was appealing against the severity of a 10 month prison sentence imposed upon him for four counts of supplying a prohibited drug.
The 19-year-old’s Sydney criminal defence lawyers argued that the sentencing judge made an error by failing to properly consider the available non-custodial sentencing options, including the appropriateness of an intensive correction order (ICO).
Hindering judicial discretion
Her Honour agreed that alternatives should have been considered by the judge, as under section 5(1) of the Crimes (Sentencing Procedure) Act 1999 the law requires that a judicial officer must only impose a sentence of imprisonment if no other option is appropriate.
Due to timing restraints, Justice Simpson was unable to impose an ICO for Mr Robertson. Her Honour resentenced him to a 12 month suspended sentence, meaning he will serve the remainder of his sentence on the outside under a good behaviour bond.
In handing down the sentence, Her Honour remarked that the terms expressed in Clark “are incompatible with the proper exercise of a judicial sentencing discretion.”
Her Honour found the principle to be “incompatible with a number of statements made by the High Court”. She added that its validity was a “matter to be decided on another occasion,” either by the NSWCCA with a five judge panel, or by the Australian High Court.
As fate would have it, that five judge panel came together for the appeal of Sydney criminal lawyer Ugo Parente. As the judges handed down their decision on the lawyer’s sentence, they also cast judgement over the validity of the Clark principle.
In the District Court
Mr Parente appeared before Judge Jeffrey McLennan in the Sydney District Court on 2 December last year. The defendant pleaded guilty to two counts of supply of a prohibited drug, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1995 (the DMT Act), an offence which carries a maximum penalty of 15 years imprisonment, and/or a fine $220,000.
The offences related to an amount of MDA, which is a drug similar in effect to MDMA, as well as some 1,4-Butanediol, a drug with a similar effect to GHB.
The former lawyer also pleaded guilty to one count of commercial supply of a prohibited drug, under section 25(2) of the DMT Act. The substance was gamma-Butyrolactone, or GBL, which delivers similar effects to GHB. The maximum penalty for commercial drug supply is 20 years imprisonment, and/or a $385,000 fine.
The offence also carries a standard non-parole period (SNPP) of 10 years. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
A fall from grace
Judge McLennan heard that Mr Parente had excelled at high school, and had even been the school captain. At university, he obtained degrees in law and communications. At the time, he’d entered into a long-term relationship. He went on to work as a solicitor in a Sydney law firm.
But in 2010, his relationship with his partner fell apart. This led him to get drunk for the first time in his life at the age of 28. He used an illicit substance for the first time in 2014.
By the time police pulled Mr Parente over at 12.50am on 26 June 2015, the lawyer, whose job by that stage was already on the line, was supplying drugs to a small circle of friends, and he was regularly using MDMA and ice.
His Honour found that Parente’s offending was at “the lower end of the scale” of objective seriousness. The sentencing judge outlined that the defendant was of excellent character, was genuinely remorseful, and had excellent prospects of rehabilitation.
Judge McLennan factored the Clark principle into his sentencing decision.
According to the judge, the issue was whether rehabilitation “can constitute the exceptional circumstances required to avoid the application of the general rule that persons substantially involved in supply of drugs must be sentenced to imprisonment.”
In the result, the judge found that it could not be – and sentenced Mr Parente to four years imprisonment, with a non-parole period of two years.
On 4 October, Mr Parente appealed his sentence to the NSWCCA on several grounds. The first was that Judge McLennan failed to take into account the fact he would never be able to practise as a lawyer again – something which amounted to ‘extra-curial punishment’.
Extra-curial punishment is a loss or detriment suffered by an offender as the consequence of the offence they committed, which is outside the normal parameters of sentencing. It can in certain circumstances be used as a mitigating factor in sentencing.
The panel of justices found that even though the judge had not directly mentioned Parente’s career loss during sentencing, he had referred to it and its consequences a number of times during proceedings. It was therefore determined that the judge did factor it in.
The Clark principle
The second ground of appeal was that the trial judge’s adherence to the Clark principle had “impermissibly constrained sentencing discretion.”
The Clark case was a Crown appeal against the leniency of a good behaviour bond imposed by the District Court for two counts of supplying amphetamines.
The NSWCCA resentenced Mr Clark to 12 months imprisonment, as the court found that full-time prison sentences should be handed out to those convicted of substantial drug supply to act as a general deterrent, unless exceptional circumstances are demonstrated.
“The Court had for a long period prior to Clark taken a strong view in relation to the need for “heavy penalties” so as to deter trading in illicit drugs,” the panel of justices outlined. They made mention of a series of tough sentences handed out to drug suppliers over the 1970s and 80s.
The panel also pointed out that after Clark, although many cases cited the principle established by the case, few could outline the “exceptional circumstances” where a prison sentence was not called for.
The finding of the justices
The justices of the NSWCCA also recalled that at the time of the Clark decision, the only alternative to full-time imprisonment was periodic, or weekend, detention – which was often seen as an exceedingly lenient punishment.
However, a range of non-custodial sentences are available today under the Crimes (Sentencing Procedure) Act. And in 2010, the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act abolished weekend detention, and established ICOs.
“The fact remains that there are more sentencing options available to courts than there were in the time of Clark,” the panel noted.
They cited favourably Justice Simpson’s remark that the principle was “no binding precedent”, and that the law requires a judicial officer to look at other non-custodial options, before handing out a prison sentence.
The justices also found that the principle is at odds with the instinctive synthesis approach to sentencing, where a judge is required to take all relevant factors into account before arriving at an appropriate penalty.
The Clark test requires two stages: the consideration of whether the drug supply is substantial enough to require a full-time prison sentence, and then to determine whether there are exceptional circumstances which warrant an alternative penalty.
The justices concluded that the Clark principle “that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate… should no longer be applied in sentencing for drug supply cases.”
Mr Parente’s fate
The justices found that the judge had erred in complying with the Clark principle, and that resentencing was therefore required.
The offender’s third ground of appeal was that his sentence was manifestly excessive, and although it didn’t have to be determined now, it was useful to regard, the panel remarked.
In approaching resentencing, the justices took into account the sentencing judge’s determination that the offences were at the lower end of objective seriousness, the favourable findings about Parente’s rehabilitation prospects, and the extra-curial punishment.
“In the synthesis of all of these considerations we are of the view that a sentence less than that imposed at first instance is not warranted,” the NSWCCA reasoned. On that basis, they ultimately dismissed the appeal on 29 November 2017.