Taylor Birtchnell

CALVARY CHRISTIAN COLLEGE Year 12 Legal Studies

CRIMINAL LAW: DRUGS AND INADEQUATE SENTENCING

On the 25th of May, the Sunshine Coast Daily reported that “the Sunshine Coast's drug problem

appears to be growing, with a significant rise in drug-related offences recorded across the police

district in the past three years” (Davies, 2015). Unfortunately, this is a common trend in Queensland,

and as a result, community sentiment towards drug crimes is changing (Warwick Daily News, 2015).

The punishment for an offence reflects the general public’s opinion of the crime, as well as the severity

of the crime committed. Subsequently, this report will propose that the current laws are inadequate

after analysing the presence of dangerous drugs in Queensland, the current application of the law and

the balance of all stakeholder’s rights. Suggestions will also be made to facilitate the improvement of

the current system.

The Criminal Code Act 1899 (Qld) (CC), specifically s730 (Appendix 1), identifies the acts of supplying,

distributing, possession, use and other drug related activities as illegal, and the Drugs Misuse Act 1986

(Qld) (DMA) defines the term ‘dangerous drugs’ (s4BA and s34A, both attached as Appendix 2). The

Penalties and Sentences Act 1992 (Qld) (PSA) then consolidates the law in relation to the sentencing

of offenders perpetrating various crimes identified in the CC, including serious drug offences (s15D,

Appendix 3).

An effective system of punishment and rehabilitation should reduce the physical presence of drugs in

society and serve as a deterrent to others considering committing these crimes. Instead, the Crime

Commission’s Illicit Drug Data Report found that in Queensland, from 2013 to 2014, there were

“93,000 illicit drug seizures, 27 tonnes of drugs seized and more than 110,000 arrests” (Illicit drug

markets in Queensland, 2015). All of these figures are the highest on record, and an article by ABC

News reported that the “number of amphetamine arrests across Australia has almost doubled in the

past five years, as crime authorities warn they have never seen any substance as destructive as crystal

methamphetamine, or ice” (Knowles and Armitage, 2015). It is clear that current laws are not serving

their intended purpose of deterring and correcting this criminal behaviour, and should be amended

to address the inadequacies present.

One particular case study that exemplifies the dysfunctional nature of current legislation is that of R v

Ryan; Ex parte Attorney-General (Qld) [2014] QCA 68. The respondent pleaded guilty to trafficking

heroin, possessing heroin and related summary offences. The trafficking extended over approximately

five weeks, involving the regular supply of small quantities of drugs. The respondent boasted a lengthy

and serious criminal history, including prior convictions for dangerous drug possession and other

related offences. He had, however, completed all community service orders, was maintaining stable

employment and accommodation as well as seeking support for drug and alcohol addictions. The

respondent had several young children and a wife to provide for, and during the case provided

evidence of his own difficult upbringing and numerous attempts at rehabilitation. The Trial Judge

balanced the mitigating circumstances, weighing the competing factors of personal and general

deterrence and prior rehabilitation attempts, sentencing the respondent to five and a half years

imprisonment, with parole eligibility after nine months. This sentence, specifically the parole eligibility

date, was contested on the basis of being manifestly inadequate, and the appeal was allowed.

The point illustrated in R v Ryan; Ex parte Attorney-General (Qld) [2014] QCA 68 is the lack of

consistent, clear sentencing guidelines for drug crimes. Whilst critics of mandatory sentencing cite the

need for judicial discretion as a reason to allow Judges free reign in courtrooms, it is important to

acknowledge that the PSA provides some guidelines for appropriate sentencing. Despite this, the case

of R v Ryan; Ex parte Attorney-General (Qld) [2014] QCA 68 demonstrates a Trial Judge exercising their

judicial discretion, deeming the mitigating circumstances to be so exceptional that they warranted an

early parole date. On appeal, another Judge decided these circumstances not to be of an exceptional

standard, and the sentence to be grossly inadequate. This case reveals a critical flaw in the existing

judicial system – the current legislation allows for two Judges to reach significantly different verdicts

on the same facts. This indicates a lack of clear guidelines for, and judicial understanding of,

appropriate sentencing of drug offences in Queensland courts.

It is also important to consider the impact legislation has on various stakeholders, and evaluate its

effectiveness and fairness. Drug offences concern four main stakeholders; the courts, the Australian

government, offenders and the community.

Offenders: The rights of offenders are justly balanced with the need for prosecution and

penalties. It is clear that the rights of individuals charged with drug offences in Australia are

effectively protected, especially when compared to other countries such as Indonesia. In an

effort to curb the rising presence of drugs on Indonesian soil, drug offenders still face the

death penalty, as seen in the high profile cases of Andrew Chan and Myuran Sukumarun

(Devine, 2015). Despite similarities between the presence of drugs in Indonesia and Australia,

the Australian legal system refuses to employ the death penalty, instead imposing a maximum

sentence of 25 years for drug offences (section 5, DMA, Appendix 4).

Government: The Australian government, and as an extension, the Australian taxpayer, are

both affected by drug offences. The prison system is financed through government funds, and

it is reasonable to expect any changes to legislation will impact the volume of prisoners

utilising the system, and subsequently increase the cost of providing this service. Opponents

of changes to legislation and the introduction of mandatory sentencing often point to the high

cost of housing inmates, and suggest that this funding should be allocated to other areas of

the community (Bernick and Larkin, 2014). However, in ‘Reconsidering Mandatory Minimum

Sentences: The Arguments For and Against Potential Reforms’, authors Evan Bernick and Paul

Larkin note that this view “does not consider both sides of the ledger. Imprisonment reduces

the number of future victims of crime and thereby reduces the costs that they and the rest of

society would otherwise suffer. Society is entitled to decide how to spend its funds, and

underwriting the cost of incapacitating proven criminals is certainly a legitimate use of

resources” (Bernick and Larkin, 2014). This was echoed in the comments of former

Queensland Attorney-General Jarrod Bleijie, when he stated “But what’s the cost of that

person going to prison, being released and then committing some violent crime or some other

crime against a victim? I think that cost far outweighs the other cost about keeping them in

prison” (Norton, Ryan and Howells, 2013). As such, it is clear that whilst the Australian

government and public will certainly be impacted by any decision to alter current legislation,

they have the right to allocate government funds however they deem appropriate, which the

current system effectively facilitates.

Courts: The current system does not effectively accommodate the rights of the courts, and

specifically, the Judges. The law should be clear, concise and easily applied to various

circumstances. Instead, as was revealed in the case of R v Ryan; Ex parte Attorney-General

(Qld) [2014] QCA 68, the current system is ineffective and clouded with confusion over

appropriate sentence lengths, as well as misunderstanding as to what classifies as exceptional

mitigating circumstances.

The community: The abhorrent social ill of drug dealing concerns more than just the

immediate participants involved. Drugs can impact the user’s children, parents, co-workers,

neighbours and general acquaintances. Introducing drugs to a community alters its image, can

result in heightened danger to innocent third parties and also increases the likelihood of other

community members being recruited for drug operations or becoming addicted themselves.

As mentioned previously, statistics released by the Crime Commission indicate that the

presence of dangerous drugs in Queensland communities is only increasing, clearly indicating

that the current legislation does not effectively protect community members (Illicit drug

markets in Queensland, 2015).

The evidence presented in this study strongly indicates the need for changes to the sentencing of

offenders, in order to ensure that their punishment reflects the severity of their crime whilst also

safeguarding the rights of all stakeholders involved. In Queensland, current sentencing has no

minimum length, only maximum sentences, allowing almost complete judicial discretion over

sentence lengths. This report, however, has found that this discretion is currently causing confusion

amongst Judges and inadequate sentences to be handed down. Mandatory minimum sentencing is

one of the alternatives to maximum sentencing, where crimes are allocated a set number of years as

a minimum sentence, and a Judge, whilst still able to exercise some discretion, is not able to hand

down a sentence lower than the minimum term. However, in an article entitled ‘Mandatory

sentencing doesn’t reduce crime rate’, former NSW Attorney-General and Minister of Justice, Greg

Smith, commented that “Mandatory sentencing is discriminatory and does not consider the

circumstances of the offence; it therefore frequently imposes sentences on minor offenders which are

out of step with their crimes” (Smith, 2013).This view was further reinforced by prominent members

of South Australia’s legal profession in an interview with newspaper The Australian. When asked the

question “Do you believe in mandatory minimum sentences?” the Judges overwhelmingly responded

negatively, reaffirming the view that minimum sentencing reduces judicial discretion and results in

unjust sentences (McGregor and Fewster, 2015). As such, it is clear that both minimum and maximum

mandatory sentences are ineffective and inequitable forms of sentencing – both reduce the ability of

Judges to consider mitigating circumstances whilst failing to provide sufficient guidelines to enable

fair sentences to be handed down consistently.

Baseline sentencing, however, addresses the concerns of sentencing disparity and unduly lenient, or

generous, sentences. Baseline sentences were introduced into Victorian State law in 2014, following

the emergence of a concerning trend of inadequate sentencing decisions (similar to Queensland’s

current situation) in Victorian Courts. The current system now prescribes median and maximum

punishments for specific crimes such as murder and commercial drug trafficking (Sentencing Advisory

Council, 2015). An article by the Sydney Morning Herald cited the reasons for the introduction of

baseline sentences, stating that “they were designed to lengthen average prison terms for offenders,

with former Attorney-General Robert Clark saying courts had previously imposed ‘appallingly

inadequate’ average sentences” (Lee, 2015). The Victorian Sentencing Advisory Council’s website

further explains the intention of the new sentencing laws, stating:

“In setting the new baseline sentences, parliament has made clear its intention to increase

the overall severity of sentences for the seven offences. The scheme will still allow courts the

discretion to impose a sentence higher or lower than the baseline sentence for a charge that

is either more serious or less serious than the charge that receives the median sentence”

(Sentencing Advisory Council, 2015).

The baseline sentencing system appears to be the most appropriate system of sentencing, addressing

the issues currently facing Queensland courts. This new system will provide clear guidelines for

appropriate sentences, whilst also placing necessary limitations on Judges’ discretion without

removing this important element entirely.

The baseline sentencing system protects the rights of all stakeholders, and would effectively address

the main issues with the current maximum sentencing laws in Queensland. Providing Judges with a

median sentence would allow for the facts in cases to be more effectively weighed against society’s

expectations of the punishment for the crime committed, without removing the right of an offender

to have their personal circumstances taken into consideration when delivering a sentence.

Furthermore, if this proposed change is enacted, it is reasonable to expect similar results to the

positive changes in Victoria to be mirrored in Queensland, benefiting the community with offenders

consistently removed from society, often for longer. This change reflects community disdain for drug

offences and may potentially reduce the volume of drugs, and drug-related crime, in Queensland. This

report has clearly identified that the punishments for drug offenders in Queensland are currently

inadequate and subsequently recommends that sentencing laws be amended to a baseline sentencing

system in order to ensure that punishments are an adequate reflection of the crime committed.

Reference List

Bernick, E. and Larkin, P. (2014). Reconsidering Mandatory Minimum Sentences: The Arguments for

and Against Potential Reforms. [online] The Heritage Foundation. Available at:

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Knowles, L. and Armitage, R. (2015). Drug data shows amphetamine arrests nearly double in five

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Appendix

Appendix 1

Schedule 1 The Criminal Code

Part 9 Transitional and validation provisions

Chapter 91 Transitional provisions for Criminal Law (Child Exploitation and Dangerous Drugs)

Amendment Act 2013

[s 730]

Chapter 91 Transitional provisions for Criminal Law (Child Exploitation and Dangerous Drugs)

Amendment Act 2013

730 Indictments for offences

This Code, as amended by the Criminal Law (Child Exploitation and Dangerous Drugs)

Amendment Act 2013, section 26, applies to an indictment against a person for an offence

against section 228A, 228B, 228C or 228D whether the act or omission constituting the

offence happened before, on or after the commencement of this section.

Appendix 2

Drugs Misuse Act 1986

Part 1 Preliminary

[s 4BA]

4BA Provision about s 4, definition dangerous drug, paragraph (c)(iii)

(1) This section applies if, in a proceeding for an offence against this or another Act, it is

relevant to prove that a thing is a dangerous drug under section 4, definition dangerous

drug, paragraph (c)(iii).

(2) The thing is a dangerous drug if it is intended, by the accused person, to have a

pharmacological effect that is substantially similar to the pharmacological effect of a thing

referred to in section 4, definition dangerous drug, paragraph (a) or (b)

Drugs Misuse Act 1986

Part 6 Miscellaneous

[s 134A]

134A Recommendation of Minister

(1) In deciding whether to recommend the prescription of a thing as a dangerous drug for the Drugs

Misuse Regulation 1987, schedules 1 to 5, the Minister must consider the following—

(a) the likelihood or evidence of abuse of the drug, including, for example, the prevalence of

the drug, consumption levels of the drug, the potential appeal of the drug to vulnerable

populations and drug seizure trends;

(b) the specific effects of the drug, including, for example, the pharmacological,

psychoactive and toxicological effects;

(c) the risks, if any, of the drug to public health and safety;

(d) the therapeutic value, if any, of the drug;

(e) the potential for use of the drug to cause death;

(f) the ability of the drug to create physical or psychological dependence;

(g) the classification and experience of the drug in other jurisdictions;

(h) any other matters the Minister considers appropriate.

(2) However, the Minister may decide to recommend the prescription of a thing without complying

with subsection (1) if the Minister is satisfied it is necessary to recommend the prescription of the

thing as a matter of urgency having regard to 1 or more of the matters listed in subsection (1).

Appendix 3 Penalties and Sentences Act 1992

Part 3 Releases, restitution and compensation

[s 15D]

15D Meaning of eligible drug offence

(1) An eligible drug offence is—

(a) an offence by a person against the Drugs Misuse Act 1986, section 9 of unlawfully

having possession of a dangerous drug if—

(i) each dangerous drug mentioned in the charge for the offence is a

prescribed dangerous drug; and

(ii) for each dangerous drug mentioned in the charge, the total quantity of

the substances, preparations, solutions and admixtures in the person’s

possession containing the dangerous drug is not more than the prescribed

quantity in relation to the dangerous drug; and

Example— Assume the charge mentioned prescribed drugs X and Y.

The prescribed quantity in relation to X is 1.0g and the prescribed quantity in

relation to Y is 0.2g. The person had—

• 0.2g of a preparation containing X and Y; and

• 0.7g of a preparation containing X; and

• 0.1g of an admixture containing Y.

The total quantity of the preparations in the person’s possession containing

X is 0.9g (0.2 + 0.7) which is not more than the prescribed quantity in

relation to X (1.0g).

The total quantity of the preparation and admixture in the person’s

possession containing Y is 0.3g (0.2 + 0.1) which is more than the prescribed

quantity in relation to Y (0.2g).

Subsection (1)(a)(ii) is not satisfied.

(iii) the court considers each dangerous drug mentioned in the charge was for the

person’s personal use; or

(b) an offence against the Drugs Misuse Act 1986, section 10(1), if the court

considers the possession of each thing mentioned in the charge was related to its personal

use by the person in connection with the commission of the offence; or

(c) an offence against the Drugs Misuse Act 1986, section 10(2), (4) or (4A).

(2) In this section—

dangerous drug see the Drugs Misuse Act 1986, section 4.

prescribed dangerous drug means a dangerous drug prescribed under a regulation for this

definition.

prescribed quantity means a quantity prescribed under a regulation for this definition.

Appendix 4 Drugs Misuse Act 1986

Part 2 Drug offences

[s 5]

5 Trafficking in dangerous drugs

(1) A person who carries on the business of unlawfully trafficking in a dangerous drug is

guilty of a crime. Maximum penalty—

(a) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987,

schedule 1—25 years imprisonment; or

(b) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987,

schedule 2—20 years imprisonment.