DRUG OFFENDERS: THE MOVEMENT
It is the community's perception that offenders should be punished for
the crime they committed. The further understanding is that severe offenders
should be sent to a gaol and the court should maintain the consistency
in sentencing. However, this is not always the case where the offender
is related to the drug offence. Carrying on the imprisonment does not
provide the community with the decrease rate of such offence. It is
shown that drug offenders need some treatment systems to help them stop
using drug. As a result, the laws on drug have been drafted towards
the rehabilitation principle.
This paper will address traditional perception on sentencing
discretion. Then it will discuss the modern methods which are applied
to reduce the drug offence particularly the drug court law in NSW. It
also assesses whether such methods are effectively operative and some
suggestion to supplement the existing laws.
ANALYSIS OF SENTENCING DISCRETION ON DRUG OFFENDERS
Drug law today Federal and State drug laws operate together
in each State. Each State or Territory makes laws on use, possession
and trafficking, while the Commonwealth concentrates on prohibiting
importation into the country. For example, the Drug Misuse and Trafficking
Act 1985 (NSW) covers offences such as use, possession, supply
and manufacture in New South Wales. Whereas the Customs Act 1901 (Commonwealth), applying to all States and Territories, outlaw
the import and export of prohibited drugs. Whether these laws are adequately
operated to achieve the purposes of sentencing will be discussed in
this paper. The Drug Court Act will also be examined as it
is now one of the modern drug laws in Australia.
Sentencing factors and sentencing outcomes According to
the empirical study conducted by Ivan Potas and Patrizia Poletti, the
'type of offence' is the most important factor which has influence on
the sentencing outcomes. In R v Haydon(2),
the court held that the manufacture offence should attract more penalties
than the possession offence. This might be explained by the fact that
manufacturers are usually involved in a large amount of drugs. As a
result, the offenders who were sentenced for manufacturing a prohibited
drug were the most likely to be given a prison term(3).
Unlike the manufactures, those convicted for use were likely to be fined
or given bonds of some kind. The 'role of offenders' is the second important
factor. It has been observed that the offenders who planned or invested
financially in drug importation or manufacture will receive more severe
sentences than those who imported or received drugs for their own use(4).
of drug' is ranked the third when considering the factor being taken
into account to impose the penalty on the offenders. In R v Lawrntiu and Becheru(5), heroin and cocaine were treated
equally as the most serious drug types. While in R v Bushel(6) and R v Care(7), ecstasy and amphetamines
are regarded as middle range drugs. The least harmful illicit drug is
cannabis. Thus in Robertson v R(8), it is
tended to attract slightly lower penalties than the other drugs.
Consequently, the authorities display that the courts have developed
sentencing patterns which distinguish between minor and serious offences.
Sentencing has tended to deter small time drug users by imposing fines
bonds. At the same time the courts deal very severely with those who
supply or produce and in doing so spread drugs in the community. The
penalties for possession and use have a much lower baseline and the
courts also deal less harshly with the less dangerous drugs such as
cannabis. It could not be denied that such patterns uphold the consistency
in sentencing discretion imposed on the drug offenders.
2. WHAT DOES
The principle of discretionary sentencing has always been criticised
that it created the injustice in the criminal justice system. This is
because magistrates and judges being allowed to adjust the penalties
to fit the crime, may be too lenient or stringent. However, this is
not always the case for the drug offences according to the above analysis.
Sentencing discretion on the drug offenders is regarded as consistent.
The overall consistency is reflected in a clear tendency of the courts
to impose: non-custodial sentences in the less serious cases; and custodial
sanctions in the majority of the more serious offences.
is believed that consistency provides society with justice. The more
severe the offence is, the longer the imprisonment should be instructed.
Imprisonment is traditionally thought to be an effective method of significantly
reducing the crime rate(9). If an offender imports
a large amount of heroin, he or she should be sent to gaol. Thus if
the court does not impose a prison sentence (and sometimes a very long
one), the debate over perceptions of leniency or severity usually occurs.
The court is always asked to limit or reduce great frustration in the
community by preserving the perception of consistency in sentencing.
However, the consistency is not the only consideration when the court
deals with drug offences. There is the treatment and punishment dilemma,
which often makes the determination of sentence in drug cases, both
in terms of quantum and kind, particularly difficult(10).
It is true that a primary object of sentencing is the protection of
the community. But protection may sometimes be best achieved through
rehabilitation of offenders, rather than by simply punishing them(11).
(1) The author is a law lecturer from the Faculty of
Law, Chulalongkorn University: Master of Laws, University of Sydney,
Australia ( Australia-Asia Award) 2004; Master of Laws ( Upper Second
Class Honours), University of Cambridge, England 2003; Barrister -at
-Law, The Institute of Legal Education Thai Bar Association 2000; Bachelor
of Laws (First Class Honours with the Gold Medal Award), Chulalongkorn
(2) Unreported, 11 September 1990, NSWCCA.
(3) Ivan Potas and Patrizia Poletti, Sentencing
Drug Offenders (1999).
(4) R v Laurentiu and Becheru (1992) 63 A Crim R 402
(6) Unreported, 7 August 1998, NSWCCA.
(7) (1997) 97 A Crim R 552
(8) (1989) 44 A Crim R 224
(9) G L Davies and K M Raymond, "Do Current Sentencing
Practices Work?" (2000) 24 Crim LJ 236.
(10) Ivan Potas and Patrizia Poletti, Sentencing
Drug Offenders (1999).
(11) Bob Debus, "The NSW Sentencing Council"
(2003) 15(6) Judicial Officer's Bulletin 45 at 46.