Australia: Should the defendant go to jail for drug supply? Which case won?

Last Updated: 9 October 2019
Article by Peter Schmidt

The Facts

Man arrested for supply of prohibited drugs

In June 2015, a young man was apprehended by police and found to be in possession of a substantial quantity of illegal recreational drugs. This included 17 MDMA tablets, 100 MDA tablets, 338.8 grams of 1,4-butanediol (or "bute", an alternative to GHB), and 1.3728 kilograms of gamma-butyrolactone (GBL), as well as $3,000 in cash.

The man was charged with two counts of supply of a prohibited drug and one count of supply of a commercial quantity of a prohibited drug, along with other offences.

Penalties in NSW for drug supply and commercial drug supply

The maximum penalty for the supply of a prohibited drug is 15 years of imprisonment, and/or a fine of $220,000, while the maximum penalty for commercial drug supply is 20 years of imprisonment, and/or a $385,000 fine.

The offences also carry a standard non-parole period (SNPP) of 10 years. (An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.)

Defendant's "tragic descent" attracts considerable media attention

The case attracted considerable media attention as a tale of tragic and spectacular fall from grace. The man had been school captain and dux of his school. He had received many awards, including for his involvement in activities promoting drug awareness.

After graduating with degrees in law and communications, he obtained employment as a lawyer, specialising in criminal law. A character reference by a senior partner in the firm where he worked described him as "a diligent and competent lawyer who dedicated his time and his efforts to ensuring his clients were provided with clear legal advice and well represented in Court."

Guilty plea and prison sentence followed by appeal to Court of Criminal Appeal

The man had confessed to police that he had developed an addiction to drugs. At the time of his arrest, he was supplying drugs to a small circle of friends and was regularly using MDMA and ice.

He pleaded guilty to the charges in the District Court of NSW and was sentenced to four years in prison, with a minimum non-parole period of two years. He appealed this sentence in the hope of avoiding imprisonment.

It was up to Court of Criminal Appeal to determine whether or not the sentence was appropriate.

case a - The case for the defendant

case b - The case for the prosecution

  • I was usually a person of good character. This was a one-off incident and totally out of character for me.
  • I pleaded guilty at the earliest possible opportunity, I am genuinely remorseful, I have excellent prospects of rehabilitation and the likelihood of my re-offending is extremely low.
  • As the judge in the District Court acknowledged, my drug supply activities were at the lower end of the scale.
  • The only reason I had such a large quantity of GBL in my possession was that it was much cheaper to buy it in this form than in the normal 2ml quantities.
  • I studied for years to get my qualifications and went into law to do good for others. It is unlikely I will ever be able to practice law again and this is already a crushing punishment for me. The District Court judge did not have sufficient regard to this in the sentencing.
  • The media scrutiny I have endured is also a significant aspect of the punishment I have already received.
  • A sentence of full-time custody would likely nullify the rehabilitation I have achieved to date.
  • The worthwhile and productive life I was living was destroyed when I became addicted to drugs. I am a victim of my own addiction and the court should show leniency in the circumstances.
  • My sentence is manifestly excessive and should be reduced to a non-custodial sentence.
  • The defendant knew what he was doing.
  • He was a criminal lawyer and should have known better.
  • The evidence is clear and unambiguous.
  • The penalty should be heavy in order to act as a general deterrent to the trade in illicit drugs.
  • The defendant was propelled by the all-consuming selfishness that addiction generates to go about supplying drugs to others, thus contributing to the devastation of other lives.
  • The judge did consider the damage to the defendant's career, as he referred to it during the trial when he spoke about the defendant's "tragic descent". In fact, references to the defendant's career permeated the entire proceedings.
  • The media attention which the case attracted was similarly taken into account by the judge.
  • The defendant's circumstances are not "exceptional circumstances" that would call for a decision not to imprison someone with drug charges such as his.
  • The alternatives to imprisonment would be manifestly inadequate for the quantity of drugs involved. The court should confirm the District Court's decision by sentencing the defendant to imprisonment as per the legislation.

So, which case won?

Cast your judgment below to find out

Peter Schmidt
Drug and alcohol offences
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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