Thailand Law Journal 2018 Spring Issue 1 Volume 19

3.      Attempts at solving the problem

Some jurisdictions have sought to solve some of the problems identified above by changing the way in which sentences for drug offences are calculated and arrived at. 

3.1.     England and Wales

In February 2012, new sentencing guidelines for drug offences became effective in England and Wales. The guidelines change the way in which all drug offenders are sentenced; however, there has been no change in the substantive drug law.

Under the guidelines, drug weight remains as an indicative proxy for ‘harm caused'. But in addition to that, the guidelines recognise the offenders' role. The guidelines list three main roles. The more control, power, and influence an offender has over the operation as a whole, and the more money an offender anticipates to make from the offence, the longer the sentence will be. The table below lists the factors that characterise each of the three roles.

An analysis finds that consideration of role in England and Wales has led to lower sentences for those in a ‘lesser’ role. The number of short and non-custodial sentences has increased reflecting the large portion of offenders in lesser roles, while a small number of serious offenders, with significant to leading roles, have received longer prison sentences. (Fleetwood, 2015) Dr Jennifer Fleetwood, who has evaluated the impact of these changes, notes that ‘taking offenders’ role and motivation into account during sentencing is practically feasible and seems to lead to more fair and proportionate outcomes.’ (Fleetwood, 2015:11) She also notes that, as commentators predicted, (Harris 2011; Fleetwood 2011), ‘the continued use of drug weights appears to produce arbitrarily harsh sentences for some of those in a lesser role. Based on that it is suggested ‘that role ought to take primacy over drug weight at sentencing. Doing so would support the stated aim of proportionality in the sentencing of drug mules in comparison to those in leading roles. It would also reflect the fact that those in leading roles may be responsible for wider harms than simply transporting illegal drugs.’

3.2      Singapore

In 2012, Singapore’s Misuse of Drugs Act was amended in a bid to ‘draw a very careful, calibrated distinction between the different levels of accountability [and to] temper and mitigate the harsh drug laws with compassion…’33 One of the recurring criticisms by opponents to the stringent drug laws in general, and the mandatory death penalty in particular, is that more often than not, the people arrested are couriers who are usually in desperate need for money rather than the masterminds or kingpins of well-organised drug syndicates.34 (Chen 2015)

The 2012 amendments give the courts sentencing discretion if the accused can prove, on balance of probabilities, that he or she was merely acting as a courier.35 These amendments have forced courts to consider the role of drug offenders convicted of having been in possession of quantities exceeding the thresholds that trigger the death penalty. One of the questions arising in the jurisprudence that has followed in the wake of the amendments is: who is a courier?36 In the case of PP v Abdul Haleem bin Abdul Karim and another, Justice Tay Yong Kwang observed that the new exception to the mandatory death penalty was confined solely to those typically referred to as ‘drug mules’ and whose involvement was ‘limited to delivering or conveying drugs from point A to point B.’37 Justice Tay further observed that while the exception strictly applied only to an accused acting in the narrow role of a courier, it should not be construed pedantically such that an incidental act of storage or safe-keeping by the accused in the course of transporting, sending or delivering the drugs would mean that he was also playing the role of storing or safekeeping drugs within a drug syndicate. In a later case, the Court of Appeal found that ‘a courier is someone who receives the drugs and transmits them in exactly the same form in which they were received without any alteration or adulteration.’38 In the same case, the Court of Appeal went on to clarify that if ‘the person convicted has been found to have the intent to sell the controlled drugs, then he is evidently not merely a courier.’39

While the 2012 amendments may seem like mere tinkering with what remains some of the world’s harshest drug laws, they nevertheless mark an unequivocal departure from the principle that a person should be judged solely by the weight of the drugs carried. The revised law recognises, albeit to a very limited extent, that the role of the accused is a relevant factor in determining culpability in drug offences.

3.3      Why sentencing reform is not enough

In the two examples above, it is clear that policymakers have recognised that possession-based drug legislation can lead to unfair outcomes. Presumably, because bold reform of drug laws is politically complicated almost everywhere in the world, policymakers have sought to adjust sentencing procedures, which might be easier than amending the substantive law. While this may help mitigate some injustice, regrettably it does not solve the fundamental problem; in both England and Wales and Singapore, people with minor roles in the drug industry continue to face disproportionally long prisons sentences on account of the quantities of drugs they were caught with.

The way drug offences are currently defined is like having one offence of homicide on the statute books, ignoring factors such as why the accused caused to the death of the victim, what his intentions were, or the manner in which he acted. Such a law would, of course, be considered preposterous. Almost all jurisdictions acknowledge that the intent and motivation of a person committing homicide, the mens rea, changes the fundamental nature of the offence, even if the actus reus and the outcome is the same. Most jurisdictions recognise the fundamental difference between murder and manslaughter. Coomber and Moyle use the same analogy: ‘We believe that a separate gradated offence (as in the case of murder/manslaughter) of minimally commercial supply should be created and that this should be sensitive to real-world supply activities, foster proportional and consistent sentencing vis-à-vis motivation, harm and intent. Further research could effectively delineate the different aspects of minimally commercial supply behaviours and would thus be key to creating guidelines which could situate different roles in social supply behaviour (for example ‘brokers’; ‘non-profit motivated sellers’; ‘nominated group buyers’; user-dealers) in terms of their relative seriousness.’ (Coomber and Moyle, 2014:163)