NSW Courts Must Consider Alternatives to Prison

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By Paul Gregoire and Ugur Nedim

On 11 July 2013, NSW police pulled over a man referred to as ‘EF’ for a random breath test. On conducting a search of EF’s vehicle, officers found a plastic bag containing orange crystals.

Seven small resealable plastic bags were also found in the car, all with traces of the crystals in them. Testing revealed the substance was 8.7 grams of methamphetamine at 15 percent purity. Officers also found EF was in possession of $1,074.

EF began using methamphetamine to help keep him awake during 18 hours days managing a cotton farm. He lost his job and belongings when the farm burnt down, as he lived with his partner on the property.

According to EF, he started selling methamphetamine to support his habit and provide for for himself and his partner. He explained that he’d bought a 28.3 gram block for $3,500, which he was selling at $300 a gram.

A lower end sentence

The defendant pleaded guilty to two offences. The first was one count of supplying an indictable amount of methamphetamine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 15 years imprisonment and/or a fine of $22,000.

The second offence was one count of dealing with the proceeds of crime, as under section 193B(2) of the Crimes Act 1900, which carries a maximum penalty of 15 years behind bars.

“Prison sentences are almost inevitable when people deal in drugs for profit,” remarked NSW District Court Judge Reg Blanch during the proceedings. His Honour accepted EF’s account of why he began to take drugs, and that he was dealing to support his habit.

The court heard that EF had secured a new job with an Aboriginal corporation, and had helped his partner through her pregnancy. His Honour found that EF had “really quite good prospects for rehabilitation.”

“The material produced on behalf of the offender is compelling and, in my view, justifies imposing a prison sentence at the low end of the scale,” Judge Blanch concluded.

On 7 April 2014, his Honour sentenced the offender to concurrent sentences for the two offences that totalled 2 years imprisonment, with a non-parole period of 6 months. EF spent 2 months behind bars before being granted bail pending his appeal.

Ground of appeal

On 13 March 2015, EF appealed his sentence at the NSW Court of Criminal Appeal (NSWCCA) on the ground that the sentencing judge had made an error aby not taking into consideration the alternative sentencing option of an intensive correction order.

His criminal defence lawyers pointed to section 5(1) of the Crimes (Sentencing Procedure) Act 1999 which requires that “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.”

Intensive correction orders

ICOs allow suitable offenders to serve sentences of 2 years or less imprisonment by way of intensive correction within the community. This is done under the supervision and monitoring of Corrections NSW.

An ICO is an option to be considered for all offenders over the age of 18, except for individuals who’ve been convicted of a prescribed sexual offence, as set out in section 66 of the Crimes (Sentencing Procedure) Act.

Regulation 186 of the Crimes (Administration of Sentences) Regulation 2014 outlines the mandatory conditions for ICOs, which include undertaking a minimum of 32 hours of community work a month, participating in rehabilitation programs and submitting to drug and alcohol testing.

The use of ICOs in NSW commenced in October 2010 at the same time weekend detention was abolished in our state.

NSWCCA Justice Monika Schmidt noted that EF might have been assessed as suitable for an ICO, as he had good rehabilitation prospects. She pointed out that he’d found full time employment and complied with his bail conditions both before and after sentencing.

The Clark principle

However, the sentencing judge didn’t consider an ICO, and EF’s lawyers neglected to raise the option with his Honour.

“It seems to have been assumed by all concerned that, because the offence was of drug dealing “to a substantial degree”, non-custodial options were not available,” NSWCCA Justice Carolyn Simpson surmised.

The justice then referred to the principle set out in the 2006 case R v Gu, which dictates that “unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs.”

This “sentencing policy” was initially established in the 1990 case R v Clark, where the NSWCCA ruled that a good behaviour bond was too lenient for two counts of drug supply, and Mr Clarke was therefore resentenced to 12 months prison time.

The “Clark principle” has acted as a de facto sentencing rule in NSW courts for the past three decades. But last year, the justices presiding over two NSW court cases  – Robertson v R and Parente v R – ruled that a substantial drug supply does not necessarily require prison.

In November last year, a panel of NSWCCA justices ruled that the Clark principle should no longer be applied when sentencing for drug supply cases.

A likely candidate

Justice Simpson pointed out that at the time of the R v Gu case, the option of an ICO was unavailable. Indeed, at that time, the only alternative to full-time imprisonment for which the offender may have been suitable was weekend detention, which seemed like an exceedingly lenient option.

But in 2014, when EF stood trial, the ICO option was available to the District Court, but was not requested by the lawyers or considered by the judge. Justice Schmidt suspected the option may have been overlooked in the context of a busy courtroom.

“This was not a case where it was apparent that an applicant would not be found suitable, if assessed for an ICO,” the justice remarked. To the contrary, her Honour found there was a strong likelihood EF would have been found suitable.


The NSWCCA ruled that EF should be resentenced, as the sentencing judge, along with EF’s legal team, had failed to raise or consider the non-custodial sentencing option.

The justices handed down a sentence of 1 year and 3 months which, they found, “was not unreasonably disproportionate to the nature and circumstances of the offences.” When resentencing, the court took into account EF’s guilty pleas and the assistance he’d provided to police, as well as his good prospects of rehabilitation.

The court then suspended EF’s new sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999.

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