NSW truck driver smuggles 145kg of cannabis across QLD border

A man from Greater Sydney attempting to cross the New South Wales border into Queensland has been charged for attempting to smuggle 145kg of cannabis.

Queensland police stationed at a Coolangatta checkpoint stopped the man during a routine check.

The man claimed that he was transporting goods from South Australia, but was unable to provide a valid permit.

Following a subsequent search of the vehicle, police found two vacuum-sealed bags of cannabis hidden inside a toolbox as well as two large hot water systems.

Police allege that the amount of cannabis the man was holding was estimated to have a street value of $1.2 million.

The man was charged with the offence of supplying prohibited drugs being a large commercial quantity and for breaching Covid-19 health restrictions.

The man has been refused bail.

What impact has the COVID-19 pandemic on cannabis demand and supply in Australia ?

The Australian institute of Criminology has recently released a report which examined the impact of the COVID-19 pandemic on cannabis demand and supply in Australia.

It found regular cannabis users reported using cannabis significantly more often than before the pandemic.

The study found that people who had changes in their employment, financial or living situation or mental health were more likely to increase cannabis use.

Many users reported increased prices and decreasing numbers of dealers in Brisbane, Queensland.

Are the penalties for supplying cannabis less serious than for other drugs ?

Cannabis is the most commonly used prohibited drug in the community.

Some of its effects are perceived by many people as beneficial and it is available for a wide range of medicinal purposed.

Despite that fact, the penalties for supplying cannabis are no less serious than for those of supplying any other prohibited drug.

The legal penalties relating to the supply of drugs are based on the type of drug and the amount of that drug present as opposed to the seriousness of the drug.

This was confirmed by the High Court decision of Adams v the Queen [2008] where the court held that the extent of a drug's harmfulness is not a factor of consideration in determining sentences for drug related offences.

The Adams Decision

Mr Adams was convicted in the Victorian County Court for possessing a large commercial quality of ecstasy and was sentenced to nine years jail, on top of 260 days already in custody, with a non parole period of seven years.

In sentencing Mr Adams, Judge Anthony Duckett said that the courts treat ecstasy, for sentencing purposes, as being similar to heroin.

Mr Adams argued that this was an error and that he should have been sentenced on the basis that MDMA was less harmful than heroin.

He appealed unsuccessfully to the Victorian Court of Appeal.

He then appealed to the High Court.

The High Court held that generalisations seeking to differentiate between the evils of the illegal trade in heroin and MDMA could not be sustained by evidence.

Therefore, this could not be a factor of consideration in determining the sentencing of a person convicted of this offence.

The court does not grade different drugs based on harm as the law requires that all drugs be treated equally.

This "sliding scale" of penalties is based on the quantity of the substance an individual is convicted of trafficking.

These quantities are broken down into several categories of amounts, ranging from a small amount to a large commercial quality.

In New South Wales this can be found in Schedule 1 of the Drug Traffic and Misuse Act 1985.

Go Directly to Prison ?

Until recently the law in NSW was that a person convicted of substantial drug supply is to be sentenced to full time imprisonment unless there are exceptional circumstances.

This was known as the "Clark Principle".

Hunt J in R v Peter Michael Clark [1990] NSW CCA stated that the Court of Appeal "has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate"

The Clark principle required a two step process. The first step was that the court was to determine whether the offender had trafficked to a substantial degree. The second step was determine whether there existed exceptional circumstances to justify alternatives to a full time custodial sentence.

This principle was affirmed time and time again.

Legislative Changes and Case Law

The Clarke principle however has no further application in the court's determination of the appropriative sentence.

Recent decisions affirmed that the Clarke principle was incompatible with judicial discretion and for that reason it was no longer considered applicable in the sentencing process.

In 2017, this principle was overturned in the cases of Robertson v R [2017] and Parente v R [2017] by the NSW Court of Criminal Appeal.

Both cases decided that a more flexible approach should be adopted when sentencing drug traffickers.

Indeed the Court ultimately found that the Clark principle was incompatible with judicial discretion and should no longer be applied.

The Full Bench in the case of Parente highlighted there had been significant legislative changes and developments since Clark.

The sentencing principles in s 3A of the Crimes(Sentencing Procedure) Act 1999 were introduced.

Section 3A provides:

The purposes for which a court may impose a sentence on an offender are as follows

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

The legislative changes also included the requirement of the court to consider all other sentencing options prior to turning to a sentence of imprisonment.

This is provided for in s 5 of the Act :

5 Penalties of imprisonment

(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

(2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including-

(a) its reasons for deciding that no penalty other than imprisonment is appropriate, and

(b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) A sentence of imprisonment is not invalidated by a failure to comply with this section.

(5) Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order.

The court in Parente provided that following the consideration of the maximum penalties , the sentencing court must then determine whether no sentence other than imprisonment is appropriate in all the circumstances in accordance with s 5(1) of the Act.

It may be that a sentence other than imprisonment will not meet the sentencing objectives as proved for in s 3A of the act.

In which case a sentence of imprisonment will be imposed.

However a determination must then be made regarding whether alternatives to full time imprisonment are appropriate. Meaning that a non-custodial sentence may still available, that being an Intensive Corrections Order.

This approach to sentencing drug traffickers also seems to better reflect the correct approach to sentencing as an 'instinctive synthesis'.

The process of instinctive synthesis is a mechanism whereby sentencers make a decision regarding all of the considerations that are relevant to sentencing, and then give due weight to each of them, and then set a precise penalty.

Accordingly there is no single correct sentence, and that the 'instinctive synthesis will, by definition, produce outcomes upon which reasonable minds will differ'.

Recent proposed law reforms to the laws relating to supply of prohibited drugs?

Recently in NSW parliament there has been a proposed bill to provide extended powers for police in regards to searching persons subject to a drug supply prohibition order.

The proposed Drug Supply Prohibition Order Pilot Scheme 2020 will extend the police's power to stop, detain and search anyone without a warrant who possesses a drug supply prohibition order.

The New South Wales Council for Civil Liberties (NSWCCL) is strongly opposed to the Drug Supply Prohibition Order (DSPO) Pilot Scheme Bill 2020 (the Bill).

The NSWCCL have released a statement which condemns the Bill as providing police with extraordinary powers in circumstances where adequate powers currently exist to search and seize items related to drug activity.

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