Drugs and the law - Hot Topics 59 - Find Legal Answers

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The court processpresuMpTiOn in favOur Of bailFor minor drug offences, there is a presumption infavour of bail (Bail Act section 9). This means that thecourt will grant bail unless the police can show why itshould not be granted.This presumption operates for offences where the quantityof drugs involved is less than twice the indictablequantity; for example, offences involving:> less than 2 kilograms of cannabis (the indictablequantity is 1 kilogram)> 10 grams of heroin or other powders (the indictablequantity is 5 grams)> cultivating fewer than 100 cannabis plants (theindictable quantity is 50 plants).Despite the presumption, bail could be refused wherethe person has a poor bail history—for example, if theperson has allegedly committed the offence while onbail or parole for another offence, or is subject to a goodbehaviour bond, or has previously failed to appear toanswer a charge.presuMpTiOn againsT bailThere is a presumption against bail for offencesinvolving:> the cultivation of a commercial quantity of plants (250plants)> the supply or manufacture of a commercial quantityof drugs (250 grams of heroin or amphetamine, 25kg of cannabis leaf or head), or importation offenceinvolving similar quantities.This does not mean that bail will not be granted; itmeans that the court will not grant bail unless the personcharged can show that bail should be granted.WHaT is cOnsidered?The main factors taken into account in deciding whetheror not to grant bail are whether it is probable that theperson applying for bail will appear in court for thehearing, the interests of the person applying for bail(obviously it is usually in their interests to be allowedto go free on bail), the protection of witnesses, and theprotection and welfare of the community.penalTies fOr drug OffencesAbout 150 people are imprisoned each year in NSWfor drug possession (usually for relatively short terms).Another 600 people are jailed for supplying or cultivatingdrugs.The tables below show the types of penalties imposedby Local and District Courts in 2005 (the most recentfigures available) for the most common types of drugoffences. Of course, every case is different, so thesetables give a general idea only of the likely penalty forparticular offences.Where a person has been convicted of more than oneoffence, the penalty shown is that imposed for the mostserious offence.pleas and previOus recOrdA plea of guilty for dealing or trafficking offences carriesless weight than is usually the case for other offences, butstill attracts a ‘discount’ on sentence. Similarly, havingno previous record carries less weight than usual insentencing for dealing offences.lOcal cOurT penalTiesPenaltyPossessionanD UsesUPPlycUltivation/manUfactURefine 3119 29 267prison 122 141 30suspended 69 120 59sentenceperiodic3 15 9detentioncommunity 30 69 43servicebond 521 111 169no conviction 758 7 87recordedother 29 5 3total 4651 497 667the court process 23
disTricT cOurT penalTiesPenaltysUPPlycUltivation/manUfactURefine – – –imPoRtationprison 285 73 49suspendedsentence114 18 1home detention 4 – –periodicdetentioncommunityservice38 10 112 1 –bond 12 2 –no convictionrecorded2 2 –total 467 106 51These figures do not include all drug offences prosecuted.For example, in 2005 there were a total of 8986 chargeslaid for drug possession. In just over half of those cases(4651), the possession charge was the ‘most serious’,perhaps the only, charge.cOnclusiOnsMost offences involve small quantities of drugs and aredealt with in the Local Courts where the jurisdictionallimit is an $11 000 fine and two years imprisonment,even if the maximum penalty set out in the Drug Misuseand Trafficking Act is higher. The following conclusionsare based on the 2005 statistics:> for possession, by far the most common charge,two thirds of defendants received a fine, the averagearound $325> small scale supply convictions in the Local Courtusually attract either prison sentences (on average,around 7 months) suspended prison sentences, orgood behaviour bonds (the average length is about18 months)> for larger supply cases – heard as indictable mattersin the District Court – about 60% of defendants aresentenced to prison, with the average term 25 months.A further 10% are sentenced to periodic detention(with a 12 month average), and another 25% get asuspended prison sentence> for cannabis cultivation cases dealt with summarily inthe Local Court, the most common penalties are fines(with the average just over $600) or good behaviourbonds (average 16 months). For larger scale cases inthe District Court, the most likely outcomes are prison(average 24 months) and suspended prison sentences> generally speaking, where the drug concerned iscannabis, the penalty tends to be a little lower than forother drugs.image u navailableMore than 200 police from crime agencies, Tactical Response Group and Rescue Squad take part in operation StrikeForce Ranger in an investigation into large scale drug trafficking in Telopea Street, Punchbowl and numerous otheraddresses across Sydney's South West.Dean Lewins, AAP PHOTO.24HOT TOPICS 59 > Drugs and the law
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