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.
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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.