Which case won?

casea
The case for the defendant
  • I was usually a person of good character. This was a one-off incident and totally out of character for me.
  • I pleaded guilty at the earliest possible opportunity, I am genuinely remorseful, I have excellent prospects of rehabilitation and the likelihood of my re-offending is extremely low.
  • As the judge in the District Court acknowledged, my drug supply activities were at the lower end of the scale.
  • The only reason I had such a large quantity of GBL in my possession was that it was much cheaper to buy it in this form than in the normal 2ml quantities.
  • I studied for years to get my qualifications and went into law to do good for others. It is unlikely I will ever be able to practice law again and this is already a crushing punishment for me. The District Court judge did not have sufficient regard to this in the sentencing.
  • The media scrutiny I have endured is also a significant aspect of the punishment I have already received.
  • A sentence of full-time custody would likely nullify the rehabilitation I have achieved to date.
  • The worthwhile and productive life I was living was destroyed when I became addicted to drugs. I am a victim of my own addiction and the court should show leniency in the circumstances.
  • My sentence is manifestly excessive and should be reduced to a non-custodial sentence.
caseb
The case for the prosecution
  • The defendant knew what he was doing.
  • He was a criminal lawyer and should have known better.
  • The evidence is clear and unambiguous.
  • The penalty should be heavy in order to act as a general deterrent to the trade in illicit drugs.
  • The defendant was propelled by the all-consuming selfishness that addiction generates to go about supplying drugs to others, thus contributing to the devastation of other lives.
  • The judge did consider the damage to the defendant’s career, as he referred to it during the trial when he spoke about the defendant’s “tragic descent”. In fact, references to the defendant’s career permeated the entire proceedings.
  • The media attention which the case attracted was similarly taken into account by the judge.
  • The defendant’s circumstances are not “exceptional circumstances” that would call for a decision not to imprison someone with drug charges such as his.
  • The alternatives to imprisonment would be manifestly inadequate for the quantity of drugs involved. The court should confirm the District Court’s decision by sentencing the defendant to imprisonment as per the legislation.

So, which case won?

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Case A Case B

Case B won. You were right!

How people voted
a24%
b76%

Expert commentary on the court's decision

“The Court of Criminal Appeal found that rehabilitation was not an exceptional circumstance that would rebut the general rule that persons involved in drug supply must be sentenced to imprisonment.”
Court of Criminal Appeal dismisses appeal and confirms District Court’s sentence

In the case Parente v R [2017] NSWCCA 284, the court dismissed the appeal and confirmed that the defendant, Mr Ugo Parente, would serve a four year term of imprisonment with a two year non-parole period.

The panel of justices found that even though the judge had not directly mentioned Mr Parente’s career loss during sentencing, he had referred to it and its consequences a number of times during proceedings. It was therefore determined that the judge did factor it in.

Application of Clark principle in sentencing for drug offences

The Court of Appeal judges considered the so-called Clark principle, which requires two stages of consideration – whether the drug supply is substantial enough to require a full-time prison sentence, and whether there are exceptional circumstances to warrant an alternative penalty to a full-time sentence.

The judges noted that Clark is not a binding principle and they were not obliged to take it into consideration. The law requires a judge to take into account all relevant factors and look at other non-custodial options before handing out a prison sentence.

The justices concluded that the Clark principle only applied to the extent that a non-custodial sentence was warranted and stated that “…drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate.”

Failure to demonstrate “exceptional circumstances”

In approaching resentencing, the justices took into account the sentencing judge’s determination that the offences were at the lower end of objective seriousness, the favourable finding about Mr Parente’s rehabilitation prospects and the extra-curial punishment (ie the additional punishment outside the court system, being the loss of a career in law and negative media attention).

The justices found that rehabilitation was not an exceptional circumstance that would rebut the general rule that persons involved in drug supply must be sentenced to imprisonment.

The justices examined in depth what amounted to exceptional circumstances and held that subjective circumstances, each strong in itself, do not add up to exceptional circumstances, unless the aggregate of all those circumstances points to the case being one of real difference from the general run of comparable cases that come before the courts.

What should I do if I’m up on drug supply charges?

It is important now to remember that the court has made firm comments on the importance of custodial sentences for the purpose of punishment for drug crimes. However, there may be room for alternatives to a custodial sentence, particularly if there is a smaller quantity of drugs involved.

For instance, it may be possible to apply for a non-custodial sentence such as an intensive correction order, provided the legislated sentence is not greater than two years. It is important for anyone facing such charges to speak to a lawyer who has experience in the criminal jurisdiction.

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