Sentencing Trends for Trafficking in a Non-Commercial Quantity of Drugs in the Higher Courts of Victoria 2012–13 to 2016–17

Sentencing Snapshot 218
Date of Publication: 
30 August 2018

Sentencing Snapshot no. 218 describes sentencing outcomes for the offence of trafficking in a non-commercial quantity of drugs in the County Court of Victoria from 2012–13 to 2016–17.

This is the most recent Sentencing Snapshot for this offence.

You can also access statistics for this offence on SACStat.

Authored and published by the Sentencing Advisory Council
© State of Victoria, Sentencing Advisory Council, 2018

Introduction

This Sentencing Snapshot describes sentencing outcomes1 for the offence of trafficking in a non-commercial quantity of drugs in the County Court of Victoria from 2012–13 to 2016–17.2 Adjustments made by the Court of Appeal to sentence or conviction as at June 2017 have been incorporated into the data in this Snapshot.3

Detailed data on trafficking in a non-commercial quantity of drugs and other offences is available on Sentencing Advisory Council Statistics Online (SACStat).

The Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides for a set of trafficking offences that distinguishes between large commercial, commercial and less than commercial quantities of illicit drugs.4

A person who prepares, manufactures, sells, exchanges, agrees to sell, offers for sale, or has in his or her possession for sale a drug of dependence without being authorised or licensed to do so is guilty of trafficking in a drug of dependence.5 The maximum penalties that apply vary depending on the nature and quantity of the drug involved, as well as the age of the recipient of the drugs, with higher maximum penalties for supplying to persons aged under 18 years.6

This report examines the offence of trafficking in a drug of dependence to an adult where amounts smaller than a commercial quantity are involved.  Trafficking in a non-commercial quantity of drugs7 is an indictable offence that carries a maximum penalty of 15 years’ imprisonment and/or a fine of up to 1,800 penalty units.8 Indictable offences are more serious offences triable before a judge and jury in the County or Supreme Court. Trafficking in a non-commercial quantity of drugs can also be heard summarily in the Magistrates’ Court provided that the offending involves a quantity of drugs below a certain amount,9 the Magistrates’ Court considers it appropriate and the accused consents.10

Trafficking in a non-commercial quantity of drugs was the principal offence11 in 3.7% of cases sentenced in the higher courts between 2012–13 and 2016–17.

People sentenced

From 2012–13 to 2016–17, 336 people were sentenced in the higher courts for a principal offence of trafficking in a non-commercial quantity of drugs.

Figure 1 shows the number of people sentenced for the principal offence of trafficking in a non-commercial quantity of drugs by financial year. There were 62 people sentenced for this offence in 2016–17, down by 12 people from the previous year. The number of people sentenced was highest in 2015–16 (74 people) and lowest in 2014–15 (61 people).

Figure 1: The number of people sentenced for trafficking in a non-commercial quantity of drugs by financial year, 2012–13 to 2016–17

Financial Year Total
2012-13 66
2013-14 73
2014-15 61
2015-16 74
2016-17 62
Total 336

Sentence types and trends

Figure 2 shows the total number of people sentenced for trafficking in a non-commercial quantity of drugs and the number receiving an immediate custodial sentence. An immediate custodial sentence is one that involves at least some element of immediate imprisonment or detention.12 Over the five-year period, 74% of people were given an immediate custodial sentence.

Figure 2: The number of people sentenced for trafficking in a non-commercial quantity of drugs and the number receiving an immediate custodial sentence, 2012–13 to 2016–17

Financial Year Custodial sentence Non-custodial Total
2012-13 40 26 66
2013-14 61 12 73
2014-15 40 21 61
2015-16 58 16 74
2016-17 51 11 62
Total 250 86 336

Table 1 shows the number of people sentenced for trafficking in a non-commercial quantity of drugs from 2012–13 to 2016–17 by the type of sentence imposed.

The availability of different sentence types has changed over time. Most notably, wholly and partially suspended sentences have now been abolished.13 Changes to community correction orders have also influenced sentencing trends over the five years covered by this Snapshot.14

Over the five-year period, the majority of the people sentenced for trafficking in a non-commercial quantity of drugs received a sentence of imprisonment (49% or 165 of 336 people), while 11% received a sentence of imprisonment combined with a community correction order, and 15% received a community correction order.

A total of 227 people received a principal sentence of imprisonment for trafficking in a non-commercial quantity of drugs. The principal sentence is the sentence imposed for the charge that is the principal offence.15 This total includes people in Table 1 who received a sentence of imprisonment, imprisonment combined with a community correction order, aggregate imprisonment, and aggregate imprisonment combined with a community correction order. Of the total number of people receiving a principal sentence of imprisonment for trafficking in a non-commercial quantity of drugs, 73% (165 of 227 people) received imprisonment, 16% (36 of 227 people) received imprisonment combined with a community correction order, 6% (14 of 227 people) received aggregate imprisonment and 5% (12 of 227 people) received aggregate imprisonment combined with a community correction order.

Sentences of imprisonment were the predominant form of sentencing for trafficking in a non-commercial quantity over the five-year period, although the form of imprisonment changed. The number and percentage of people given a straight sentence of imprisonment has decreased since 2013–14, while the number and percentage of people receiving imprisonment combined with a community correction order has increased over time (from 0 cases in 2012–13 to 14 cases in 2016–17).

A total of 54 people received a community correction order. The majority of these people (52 of 54 people or 96%) received stand-alone community correction orders, while an additional 2 people received a community correction order combined with a fine. The number and percentage of community correction orders used to sentence this offence peaked during 2014–15 (17 cases or 28% of sentences that year) but subsequently declined during the rest of the five-year period.

Table 1: The number and percentage of people sentenced for trafficking in a non-commercial quantity of drugs by sentence type, 2012–13 to 2016–17 (in descending order of numbers for 2016–17)

Sentence type 2012–13 2013–14 2014–15 2015–16 2016–17 Total
Imprisonment 31 (47%) 51 (70%) 25 (41%) 28 (38%) 30 (48%) 165 (49%)
Imprisonment and community correction order (combined) 0 (–) 0 (–) 4 (7%) 18 (24%) 14 (23%) 36 (11%)
Community correction order 8 (12%) 2 (3%) 17 (28%) 15 (20%) 10 (16%) 52 (15%)
Aggregate imprisonment 1 (2%) 1 (1%) 5 (8%) 4 (5%) 3 (5%) 14 (4%)
Aggregate imprisonment and community correction order (combined) 0 (–) 2 (3%) 1 (2%) 6 (8%) 3 (5%) 12 (4%)
Partially suspended sentence 8 (12%) 6 (8%) 5 (8%) 2 (3%) 1 (2%) 22 (7%)
Fine 0 (–) 1 (1%) 0 (–) 0 (–) 1 (2%) 2 (<1%)
Wholly suspended sentence 18 (27%) 6 (8%) 4 (7%) 1 (1%) 0 (–) 29 (9%)
Community correction order and fine (combined) 0 (–) 2 (3%) 0 (–) 0 (–) 0 (–) 2 (<1%)
Youth justice centre order 0 (–) 1 (1%) 0 (–) 0 (–) 0 (–) 1 (<1%)
Aggregate wholly suspended sentence 0 (–) 1 (1%) 0 (–) 0 (–) 0 (–) 1 (<1%)
People sentenced 66 73 61 74 62 336

Age and gender of people sentenced

Data on the age and gender of people sentenced for trafficking in a non-commercial quantity of drugs is available on SACStat.

Sentence length

Two methods for describing sentence lengths are examined in this section. One relates to the principal sentence and examines sentences for the offence at a charge level. The other relates to the total effective sentence and examines sentences for the offence at the case level (the principal sentence is described above).

The total effective sentence in a case with a single charge is the principal sentence. The total effective sentence in a case with multiple charges is the sentence that results from the court ordering the individual sentences for each charge to be served concurrently (at the same time) or wholly or partially cumulatively (one after the other).

Where a case involves multiple charges, the total effective sentence imposed on a person is often longer than the principal sentence. Principal sentences for trafficking in a non-commercial quantity of drugs must be considered in this broader context.

The following sections analyse the use of imprisonment for the offence of trafficking in a non-commercial quantity of drugs from 2012–13 to 2016–17.

Principal sentence of imprisonment

Of the 227 people who received a principal sentence of imprisonment for trafficking in a non-commercial quantity of drugs, 201 people received a non-aggregate term of imprisonment. Thirty-six of these people received a community correction order in addition to their non-aggregate term of imprisonment.

Figure 3 shows the length of imprisonment for the people receiving a non-aggregate term.16 Imprisonment terms ranged from 5 days (combined with a community correction order) to 8 years, while the median length of imprisonment was 2 years (meaning that half of the imprisonment terms were shorter than 2 years and half were longer).

The most common length of imprisonment imposed was 2 to less than 3 years (60 people).

Figure 3: The number of people sentenced to imprisonment for trafficking in a non-commercial quantity of drugs by length of imprisonment term, 2012–13 to 2016–17

Imprisonment length Number of people
Less than 1 year 30
1 to less than 2 years 53
2 to less than 3 years 60
3 to less than 4 years 39
4 to less than 5 years 12
5 to less than 6 years 5
6 to less than 7 years 1
7 to less than 8 years 0
8 to less than 9 years 1
People sentenced 201

As shown in Figure 4, the average (mean) length of imprisonment imposed on people sentenced for trafficking in a non-commercial quantity of drugs ranged from 1 year and 9 months in 2016–17 to 2 years and 6 months in 2012–13.

Figure 4: The average (mean) length of imprisonment imposed on people sentenced for trafficking in a non-commercial quantity of drugs, 2012–13 to 2016–17

Financial Year Number of people Average length of imprisonment term
2012-13 31 2 years and 6 months
2013-14 51 2 years and 4 months
2014-15 29 2 years and 2 months
2015-16 46 2 years and 0 months
2016-17 44 1 year and 9 months

Other offences finalised at the same hearing

Often people prosecuted for trafficking in a non-commercial quantity of drugs face multiple charges, which are finalised at the same hearing. This section looks at the range of offences for which offenders have been sentenced at the same time as being sentenced for the principal offence of trafficking in a non-commercial quantity of drugs. The section includes data on all people sentenced for a principal offence of trafficking in a non-commercial quantity of drugs, not just those who received imprisonment.

Figure 5 shows the number of people sentenced for the principal offence of trafficking in a non-commercial quantity of drugs by the total number of offences for which sentences were imposed. The number of sentenced offences per person ranged from 1 to 43, while the median was 4 offences. There were 63 people (18.8%) sentenced for the single offence of trafficking in a non-commercial quantity of drugs. The average number of offences per person sentenced for trafficking in a non-commercial quantity of drugs was 5.06.

Figure 5: The number of people sentenced for the principal offence of trafficking in a non-commercial quantity of drugs by the number of sentenced offences per person, 2012–13 to 2016–17

Number of offences Number of people
1 63
2 50
3 46
4 37
5 to 9 104
10 to 19 26
20 or more 10

Table 2 shows the 10 most common offences for people sentenced for trafficking in a non-commercial quantity of drugs, by number and percentage. The last column sets out the average number of offences sentenced per person. For example, 149 of the total 336 people (44.3%) also received sentences for possessing a drug of dependence. On average, they were sentenced for 1.89 counts of possessing a drug of dependence.

Table 2: The number and percentage of people sentenced for the principal offence of trafficking in a non-commercial quantity of drugs by the most common offences that were sentenced and the average number of those offences that were sentenced, 2012–13 to 2016–17

Offence Number of cases Percentage of cases Average number of proven offences per case
1. Trafficking in a non-commercial quantity of a drug of dependence 336 100.0 1.48
2. Possess a drug of dependence 149 44.3 1.89
3. Deal with property suspected of being proceeds of crime 93 27.7 1.43
4. Possess, carry or use a prohibited weapon (other than an imitation firearm) 49 14.6 1.67
5. Possess cartridge ammunition without licence 48 14.3 1.19
6. Handling stolen goods 31 9.2 1.35
7. Prohibited person possess, carry or use a firearm 30 8.9 2.00
8. Theft 20 6.0 1.85
9. Drive while disqualified or supsended 17 5.1 2.29
10. Possess, carry or use an unregistered general category handgun 16 4.8 1.44
People sentenced 336 100.0 5.06

Total effective imprisonment terms

Figure 6 shows the number of people sentenced to imprisonment for trafficking in a non-commercial quantity of drugs from 2012–13 to 2016–17 by length of total effective imprisonment term. Total effective imprisonment terms ranged from 5 days (combined with a community correction order) to 8 years, while the median total effective imprisonment term was 2 years and 6 months (meaning that half of the total effective imprisonment terms were below 2 years and 6 months and half were above).

The most common total effective imprisonment term was 1 to less than 2 years (55 people).

Figure 6: The number of people sentenced to imprisonment for trafficking in a non-commercial quantity of drugs by length of total effective imprisonment term, 2012–13 to 2016–17

Total effective imprisonment length Number of people
Less than 1 year 35
1 to less than 2 years 55
2 to less than 3 years 51
3 to less than 4 years 42
4 to less than 5 years 21
5 to less than 6 years 12
6 to less than 7 years 8
7 to less than 8 years 2
8 to less than 9 years 1
Total people 227

Non-parole period

If a person is sentenced to a term of immediate imprisonment of less than one year, the court cannot impose a non-parole period. For terms between 1 year and less than 2 years, the court has the discretion to fix a non-parole period. For terms of imprisonment of 2 years or more, the court must impose a non-parole period in most circumstances. Where a non-parole period is fixed, the person must serve that period before becoming eligible for parole. Where no non-parole period is set by the court, the person must serve the entirety of the imprisonment term in custody.

Of the 227 people who were sentenced to imprisonment for trafficking in a non-commercial quantity of drugs, 192 were eligible to have a non-parole period fixed.17 Of these people, 146 were given a non-parole period (64%).18 Figure 7 shows the number of people sentenced to imprisonment for trafficking in a non-commercial quantity of drugs from 2012–13 to 2016–17 by length of non-parole period. Non-parole periods ranged from 6 months to 5 years and 6 months, while the median length of the non-parole period was 1 year and 8 months (meaning that half of the non-parole periods were below 1 year and 8 months and half were above).

The most common non-parole period imposed was 1 to less than 2 years (60 people); however, the most common outcome was that no non-parole period was imposed (70 people).

Figure 7: The number of people sentenced to imprisonment for trafficking in a non-commercial quantity of drugs by length of non-parole period, 2012–13 to 2016–17

Non-parole period Number of people
Less than 1 year 21
1 to less than 2 years 60
2 to less than 3 years 44
3 to less than 4 years 13
4 to less than 5 years 6
5 to less than 6 years 2
No non-parole period 70
Total people 216

Total effective sentences of imprisonment and non-parole periods

Figure 8 compares the average length of total effective sentences of imprisonment with the average length of non-parole periods from 2012–13 to 2016–17. This includes the averages for 2015–16, where the total effective imprisonment length was lower than the non-parole period. This occurs when a large portion of cases involve offending attracting sentences of less than 1 year’s imprisonment for that year, which are too low to be eligible for a non-parole period.

From 2012–13 to 2016–17, the average length of total effective sentences for all people ranged from 2 years and 1 month in 2015–16 to 2 years and 9 months in 2012–13 and 2014–15. Over the same period, the average length of non-parole periods ranged from 1 year and 7 months in 2012–13 to 2 years and 3 months in 2015–16.

Figure 8: The average total effective sentence and the average non-parole period imposed on people sentenced to imprisonment for trafficking in a non-commercial quantity of drugs, 2012–13 to 2016–17

Financial Year Average total effective length Average non-parole period
2012-13 2 years and 9 months 1 year and 7 months
2013-14 2 years and 8 months 1 year and 8 months
2014-15 2 years and 9 months 2 years and 1 month
2015-16 2 years and 1 month 2 years and 3 months
2016-17 2 years and 4 months 1 year and 11 months

Further data on total effective sentences of imprisonment and corresponding non-parole periods for trafficking in a non-commercial quantity of drugs is available on SACStat.

Non-imprisonment sentences

Data on the length of non-imprisonment sentence types, such as community correction orders, suspended sentences and fines, for trafficking in a non-commercial quantity of drugs is available on SACStat.

Summary

From 2012–13 to 2016–17, 336 people were sentenced in the higher courts for trafficking in a non-commercial quantity of drugs. Of these people, 227 (68%) were given a principal sentence of imprisonment.

The number and range of offences for which people with a principal offence of trafficking in a non-commercial quantity of drugs were sentenced help explain why imprisonment sentence lengths were longer for the total effective sentence than for the principal sentence. The median total effective imprisonment length was 2 years and 6 months, while the median principal imprisonment length was 2 years.

Total effective imprisonment lengths ranged from 5 days (combined with a community correction order) to 8 years, and non-parole periods (where imposed) ranged from 6 months to 5 years and 6 months.

Endnotes

1. This series of reports includes custodial and non-custodial supervision orders imposed under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) as sentencing orders and in the count of people sentenced. These orders are not sentencing orders, as they are imposed in cases where the accused is found to be unfit to stand trial or not guilty because of mental impairment. However, they are included in this report as they are an important form of disposition of criminal charges.

This Sentencing Snapshot is an update of Sentencing Snapshot no. 193, which describes sentencing trends for trafficking in a non-commercial quantity of drugs between 2010–11 and 2014–15.

2. Data on first-instance sentence outcomes presented in this Snapshot was obtained from the Strategic Analysis and Review Team at Court Services Victoria. Data on appeal outcomes was collected by the Sentencing Advisory Council from the Australasian Legal Information Institute, and was also provided by the Victorian Court of Appeal. The Sentencing Advisory Council regularly undertakes extensive quality control measures for current and historical data. While every effort is made to ensure that the data analysed in this report is accurate, the data is subject to revision.

3. In October 2017, the High Court delivered its judgment in Director of Public Prosecutions v Dalgliesh (A Pseudonym) [2017] HCA 41, in which it made two important findings about sentencing in Victoria. First, Victorian courts had been giving too much weight to current sentencing practices, which is just one of the factors courts are required to take into account when imposing a sentence. Second, where current sentencing practices are shown to be in error (for example, when they fail to adequately reflect community expectations) courts should change their practices immediately, not incrementally.

Although the High Court’s decision occurred after the five-year period of this Snapshot ended, it may result in considerable changes to sentencing patterns for future editions of the Snapshots.

4. Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71–71AC.

5. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70.

6. The sentencing database used for this analysis was compiled using conviction returns. Due to incomplete offence information regarding drug trafficking offences on the conviction returns, a further classification exercise was undertaken to determine the specific offence types. This involved reading the sentencing remarks of the particular cases and determining if the quantity of the drug was non-commercial, commercial or large commercial. In total, there were 576 cases that had drug trafficking (section 71, 71AA, 71AB or 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)) as the principal offence over the five-year period from 2012–13 to 2016–17. Sentencing remarks were located for 547 cases (95%). The drug quantities for all these cases were checked and coded into the appropriate category. The remaining cases had sentences that were all within the statutory maximum penalty for the offence and were therefore assumed to have been recorded correctly in the first instance.

7. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC.

8. The value of a penalty unit changes each year and can be found in the Victorian Government Gazette and on the Victorian Legislation and Parliamentary Documents website.

9. Under Schedule 2(6) of the Criminal Procedure Act 2009 (Vic), offences of trafficking in a drug of dependence can be tried summarily by the Magistrates’ Court provided that the quantity of drugs is not considered to be commercial or large commercial.

10. Criminal Procedure Act 2009 (Vic) s 29.

11. If a person is sentenced for a case with a single charge, the offence for that charge is the principal offence. If a person is sentenced for more than one charge in a single case, the principal offence is the offence for the charge that attracted the most serious sentence according to the sentencing hierarchy.

12. An immediate custodial sentence includes imprisonment, imprisonment combined with a community correction order, aggregate imprisonment, aggregate imprisonment combined with a community correction order, a partially suspended sentence and a youth justice centre order.

13. Suspended sentences have been abolished in the higher courts for all offences committed on or after 1 September 2013 and in the Magistrates’ Court for all offences committed on or after 1 September 2014.

14. For example, initially the maximum term of imprisonment that could be combined with a community correction order was set at 3 months, but it was increased to 2 years in September 2014 and reduced to 1 year in March 2017.

15. Refer to endnote 11.

16. Data presented in this section does not include imprisonment lengths for people who received an aggregate sentence of imprisonment. Sentence lengths for aggregate sentences of imprisonment apply to the whole case, while Figure 3 only deals with sentences of imprisonment for the principal offence of trafficking in a non-commercial quantity of drugs. From 2012–13 to 2016–17, 26 people received an aggregate form of imprisonment.

17. A total of 35 people were not eligible to have a non-parole period fixed because they were given a total effective sentence length of less than one year.

18. Nine people were not given a non-parole period relating to that case alone, but a non-parole period that also related to other cases. Two additional people received a total effective sentence of less than 1 year and also a new non-parole period due to already serving a sentence of imprisonment from other cases. It is not possible to determine the length of the non-parole period that relates to these 11 cases. The non-parole periods for these people are excluded from the analysis. A non-parole period was not set for 37 people who were eligible for a non-parole period.