SENTENCING DRUG OFFENDERS: THE MOVEMENT

By Pornsakol Panikabutara(1)

INTRODUCTION

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.

1. ANALYSIS OF SENTENCING DISCRETION ON DRUG OFFENDERS

1.1 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.    

1.2 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).

The 'type 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 and
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 CONSISTENCY SERVE?     
          
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.

It 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).

Part  2

---

(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 University 1999
(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
(5) Ibid.
(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.

  Originally Published in The Chulalongkorn Law Journal (August 2005)