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Drug dealing is an offence. It is an offence to sell, supply or traffic drugs.

Regardless of the quantity of drug or controlled substance, it is an offence to import a border controlled drug into Australia. Unless you are strictly permitted by a licence, pharmaceuticals for example, it is strictly an offence to import any border controlled drug.

There are harsh penalties which apply to attempting to import or indeed actually importing the border controlled drug. Importing a commercial quantity of a drug carries a penalty of imprisonment of up to 25 years or it can attract a period of imprisonment of up to life imprisonment or 7,500 penalty units ($750,000.00) or both.
As has been seen recently with the cases of Andrew Chan and Myuran Sukumaran, even harsher penalties apply if a person is detected attempting to traffic, export or import drugs from foreign lands and are detected in those foreign lands.

Possession of a commercial quantity or marketable quantity of a border controlled drug attracts penalties of imprisonment of 25 years or 7,500 or 5,000 penalty units or both on each matter respectively.

Locally, if drugs are found in a person’s possession, evidence is admitted against a person with respect to trafficking or possession of a trafficable quantity of a controlled drug for example heroin, methamphetamine, cocaine ecstasy, similar harsh penalties apply under the Controlled Substances Act (1984) SA:

  • A person who trafficks in a large commercial quantity of a controlled drug in excess of two kilograms is guilty of an offence or up to $500,000.00 or imprisonment for life, or both.
  • A person who traffics in a commercial quantity of a controlled drug is guilty of an offence which attracts, if a basic offence, $200,000.00 or 25 years, or both.

An aggravated offence carries penalties $500,000.00 fine or imprisonment for life or both. An aggravated offence is such that is committed in circumstances where:

  1. The offender committed the offence for the benefit of a criminal organisation, or two or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or
  2. In the course of or in connection with, the offence the offender identified himself or herself in some ways belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation).

In addition, there are a myriad of ways in which trafficking or previously known as taking part in the sale of a controlled drug might be proven for the purposes of the Controlled Substances Act, that is, without limiting or defining the circumstances, may include:

• storing the drug
• carrying, transporting, loading or unloading the drug
• packaging, separating the drug into discreet units or otherwise preparing the drug
• guarding or concealing the drug
• Providing or arranging finance
• Providing or allowing the use of premises or jointly occupying premises

Similar circumstances attract for the manufacture of a controlled drug or for cultivating a controlled plant (cannabis).

Recent judgments from the District Court and Supreme Court have tended to demonstrate that the courts do consider trafficking, manufacturing in controlled drugs or cannabis as very serious offences and despite the court of public opinion, are still delivering significant penalties to those who are involving themselves at the upper end of the drug trade. Notwithstanding, the Court of Criminal Appeal has recently demonstrated there is still scope for leniency when those involved in drug trafficking at a lower level and have demonstrated a deliberate or concerted effort to rehabilitation.

The case of R v Newchurch (2014) SASCFC 45 is a casing point. At first instance the judge concerned, the Chief Judge, delivered a sentence of imprisonment of two years and five months with a non-parole period of ten months to be served immediately for a plea of guilty to trafficking of a controlled drug, namely 1.61 grams of methylamphetamine.

On appeal, the Court of Criminal Appeal set aside that sentence and imposed a sentence of two years and two months imprisonment with a non-parole period of seven months (the sentence being reduced due to the period of three months that the appellant had been in custody). That sentence was suspended upon him entering into a bond to be of good behaviour for a period of 18 months with conditions of supervision by the Department of Correctional Services for the duration of the bond.

The offender had no prior conviction, which is in the face of circumstances in which the judge at first instance considered that the offender had a difficult childhood with his parents being separated and mother abandoning him at the age of five and his father having little to do with his upbringing. The Court of Criminal Appeal confirmed a long standing position that punishment and deterrence of this type of offending is important but there is still room or scope for leniency where an offender has demonstrated rehabilitation particularly when an offender has otherwise led a blameless life in the past. It must inevitably however, be pointed out that in the circumstances of this case it was accepted that the offender’s crimes were at the lower end of the scale for this type of offence and in the circumstances the Court of Criminal Appeal extended leniency to the appellant.

What can be gleaned from this particular case is that inevitably, the court will be faced with the need to punish and deter others from criminal offending. The court still must balance the task of punishment and deterrence with an exercise of determining whether there is good reason to offer a chance to an offender who has demonstrated in particular efforts of rehabilitation since the offending occurred and more so as the justice of the case deserves.
Clearly drug offenders will be generally dealt with harshly by the courts (more so in foreign jurisdictions where grave penalties attract) but one must always consider the utility of punishment and deterrence versus mercy and leniency for those that will benefit from rehabilitation. Even more so, those that have made efforts of rehabilitation before sentence and can demonstrate contrition and end of drug use.

If you, or know of others that have been charged with drug offending, it is vitally important that you contact our office as soon as possible so you can be given comprehensive advice by one of our specialist criminal lawyers, as to your rights, obligations and in setting out a case plan for your defence.

Written by Jason Evitts.

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