NSW Drug Supply Offences, Deemed Supply and the Overturning of the Clark Principle

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By Paul Gregoire and Ugur Nedim

Alleged leader of a southwest Sydney dial-a-cocaine ring Sarah Rutherford was released on bail on 13 May this year, after being remanded in prison for close to three months, following a late February raid on her Greenacre home, which turned up the illicit substance and drug paraphernalia.

The 30-year-old British woman is said to have been coordinating a drug delivery service that covered the Sydney metropolitan area, which distributed more than 300 grams of cocaine between September 2019 and last February.

Rutherford was originally denied bail at Bankstown Local Court on 28 February, as Magistrate Glenn Walsh said the accused posed an “unacceptable flight risk” as the six charges she’s facing – which include one of commercial supply – carry substantial prison terms ranging from 10 to 20 years.

However, NSW Supreme Court Justice Mark Ierace later granted bail with strict conditions applying to mitigate the risk of Rutherford skipping court.

Accused of not only organising the operation but also delivering the drugs on occasion, the defendant is now set to stand trial at a later date.

Drug supply offences

NSW prohibited drug supply offences carry a sliding scale of penalties that are based on the quantity of a substance an individual is convicted of trafficking.

Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT) contains a list of around 200 illicit drugs, plants, precursors and reagents with a set of accompanying quantities.

These quantities are broken down into a small amount, a traffickable quantity, an indictable amount, a commercial quantity and a large commercial supply. And the applicable weights vary for each of the different substances listed.

In the case of cocaine, a small amount consists of 1 gram. A traffickable amount is 3 grams. An indictable amount of the white powder is 5 grams or over. A commercial quantity is at least 250 grams, while a large commercial supply of cocaine is a kilogram or above.

Section 25 of the DMT contains the crime of supply. When dealt with in a Local Court the supply of a less than a small amount carries a penalty of up to 2 years in gaol and/or a fine of $5,500. But if dealt with in the District Court an offender is looking at up to 15 years and/or a $220,000 fine.

The supply of at least a small quantity but less than an indictable amount of a drug heard in the Local Court carries a penalty of up to 2 years prison time and/or an $11,000 fine, while dealt with in the District Court, the accused is looking at up to 15 years and/or a fine of $220,000.

A case involving an indictable amount of a prohibited substance must be dealt with in the District Court and carries up to 15 years imprisonment and/or a $220,000 fine

As she’s been charged with commercial supply, Rutherford is facing a maximum penalty of up to 20 years prison time and/or a fine of $385,000. This offence also carries a standard non-parole period (SNPP) of 10 years imprisonment.

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.

The large commercial supply of an outlawed drug in this state carries penalties of up to life imprisonment and/or a fine of $550,000. This crime carries an SNPP of 15 years imprisonment.

There are some other drug supply provisions and offences that could prove relevant to Rutherford’s case. This includes the admixture rule contained in section 4 of the DMT, which stipulates that a suspect is to be charged with the entire weight of a discovered substance, regardless of purity.

Rutherford was also charged with ongoing drug supply, contrary to section 25A of the DMT. This crime involves an individual supplying an illegal drug for a financial or material reward on at least three occasions over a 30 day period. It carries a maximum of 20 years and/or a fine of $385,000.

An unjust supply law

Then there’s the deemed supply rule contained in section 29 of the DMT. It provides that anyone found with more than a traffickable amount of an illegal drug is to be charged with supply, regardless of whether there’s proof of having provided it to anyone but themselves.

In their 2015 article on deemed supply, former NSW DPP Nicholas Cowdery, NDARC senior research fellow Dr Caitlin Elizabeth Hughes and UNSW professor Alison Ritter outlined that this law was passed in the 1980s, as a desperate measure to deal with drug traffickers.

However, the authors point out that deemed supply undermines three core criminal justice principles: that there must be a crime and intent to commit it, that a person is innocent until proven otherwise, as well as the burden of proof falling upon the prosecution.

The paper goes on to explain that deemed supply blurs the line between drug traffickers and people who use drugs, and this has led to people being convicted of drug supply and being sentenced to gaol, even though they were only in possession of drugs for personal use.

The authors further call for this unfair law to be abolished, as in practice deemed supply usually targets people with personal supplies of a drug and small time dealers, rather than having any substantial impact upon large-scale drug traffickers.

Overturning Clark

A few years back, one could have expected that Rutherford would be sentenced to prison time if found guilty of any substantial drug supply offence.

However, since the NSW Court of Criminal Appeal (NSWCCA) overturned the common law Clark Principle in 2017, this is no longer the case.

A precedent set in a 1990 Crown appeal against the leniency of a good behaviour bond applied to two supply charges, the Clark Principle provided that a person convicted of substantial drug supply is to be sentenced to a term of full-time prison, unless there were “exceptional circumstances”.

But in August 2017, during Liam Robertson’s NSWCCA case against his prison sentence relating to four counts of drug supply, Justice Carolyn Simpson determined that the appeal should be upheld, as the sentencing judge had not considered noncustodial sentencing options.

Justice Simpson outlined that sentencing alternatives should have been considered, as section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) stipulates that a judicial officer must only impose a sentence of imprisonment if no other option is appropriate.

The full bench of the NSWCCA subsequently considered Justice Simpson’s finding two months later during the appeal of former Sydney lawyer Ugo Parente, who’d been sentenced to prison time after being convicted of four serious counts of drug supply.

The five justice panel of the NSWCCA agreed with Justice Simpson’s determination, finding that the Clark Principle was 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.

But in upholding Simpson’s precedent, the justices found that after deliberating upon the “synthesis of all of these considerations”, they were “of the view that a sentence less than that imposed at first instance” upon Parente was not warranted.

And the lawyer returned to gaol with his original sentence unchanged.

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