Recent changes to drug supply laws have produced a favourable outcome in some circumstances for accused persons in sentence proceedings. Previously if a person was found to be substantially involved in the supply of prohibited drugs, that person would be sentence to a full time term of imprisonment. This was known as the Clark Principle.
Substantially involved in the supply of prohibited drugs included factors such (Per Judicial Commission) :
- Trafficking “carries with it the connotation of supply on more than one occasion”: R v Bardo (unrep, 14/7/92, NSWCCA) per Hunt CJ at CL. It is not “a limited or isolated event”, although there may be offences with detailed involvement in the preparation and execution of a single commercial supply that would also require a custodial sentence: R v Ozer (unrep, 9/11/93, NSWCCA).
- McClellan CJ at CL suggested that the definition of “trafficking” in R v Ozer “does not exclude the possibility that involvement in one transaction could be described as ‘trafficking’”: R v Gip at [12]; see also Rothman J at [42]. After reviewing R v Clark and other authorities, McClellan CJ at CL concluded in R v Gip at [13]:
My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a full time custodial sentence should, unless there are exceptional circumstances, be imposed.
However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown.
In a recent case the Court of Criminal Appeal, found the requirement for Judicial Officers to sentence a person to full time imprisonment, on the basis of the Clark Principle interfered with Judicial Discretion. For example it restricted the Court’s ability to assess the personal and subjective case of an offender and to impose a sentence other than full time jail on that basis.
Further it was noted options such as an Intensive Corrections Order was not available at the time the Principle was put in place, thus it was a penalty Judicial officers should be able to consider.
The outcome of the case overturns the Clark Principle and whilst the factors outlined above in terms of the involvement sin the supple of drugs are still relevant, the case confirms that full time jail is not longer a forgone conclusion for matters of this nature.
If you or a family member have been charged with drug supply these matters may be of assistance to you. Please do no hesitate to contact our Criminal Law team for advice and representation.
For more information on the above contact Sharon Ramsden on (02) 4626 5077 or sramsden@marsdens.net.au
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
