The Facts
Man arrested for supply of prohibited drugs
In June 2015, a young man was apprehended by police and found to be in possession of a substantial quantity of illegal recreational drugs. This included 17 MDMA tablets, 100 MDA tablets, 338.8 grams of 1,4-butanediol (or “bute”, an alternative to GHB), and 1.3728 kilograms of gamma-butyrolactone (GBL), as well as $3,000 in cash.
The man was charged with two counts of supply of a prohibited drug and one count of supply of a commercial quantity of a prohibited drug, along with other offences.
Penalties in NSW for drug supply and commercial drug supply
The maximum penalty for the supply of a prohibited drug is 15 years of imprisonment, and/or a fine of $220,000, while the maximum penalty for commercial drug supply is 20 years of imprisonment, and/or a $385,000 fine.
The offences also carry a standard non-parole period (SNPP) of 10 years. (An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.)
Defendant’s “tragic descent” attracts considerable media attention
The case attracted considerable media attention as a tale of tragic and spectacular fall from grace. The man had been school captain and dux of his school. He had received many awards, including for his involvement in activities promoting drug awareness.
After graduating with degrees in law and communications, he obtained employment as a lawyer, specialising in criminal law. A character reference by a senior partner in the firm where he worked described him as “a diligent and competent lawyer who dedicated his time and his efforts to ensuring his clients were provided with clear legal advice and well represented in Court.”
Guilty plea and prison sentence followed by appeal to Court of Criminal Appeal
The man had confessed to police that he had developed an addiction to drugs. At the time of his arrest, he was supplying drugs to a small circle of friends and was regularly using MDMA and ice.
He pleaded guilty to the charges in the District Court of NSW and was sentenced to four years in prison, with a minimum non-parole period of two years. He appealed this sentence in the hope of avoiding imprisonment.
It was up to Court of Criminal Appeal to determine whether or not the sentence was appropriate.
Expert commentary on the court's decision
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.