Should Australia Follow Portugal’s Policy of Decriminalising Drug Possession?

Why Doesn’t Australia Follow Portugal’s Radical Drugs Policy – Decriminalisation of Drugs?

Writer and producer, Susan Ferreira, in her article in the guardian, states that since the decriminalisation of all drugs in 2001, Portugal has seen a dramatic drop in overdoses, HIV infection and drug related crime.

The article expresses that Portugal was in a state of panic in the 1980’s, when drugs were introduced into the country. 1 in 10 people were grasped by a heroin addiction, including university students, bankers and carpenters.

In fact, a family doctor in Olhao, Southern Portugal, Alvaro Pereira, said in an interview by Susan Ferreira for the Guardian, “people were injecting themselves in gardens, in the streets, in public squares.. at that time, not a day passed when there wasn’t a robbery at a local business, or a mugging.”

Portugal, in 2001, became the first country in the world to decriminalise drug possession and consumption. Those caught, are no longer arrested. They are given a warning with information on support services in respect to harm reduction, and available treatment.

Although, Portugal has seen significant improvement in its drug crisis with the decriminalisation of illicit drugs, it hasn’t disappeared.

Australia’s Approach to Illicit Drugs

While Australia has not decriminalised illicit drug use, it has a different approach to those in possession or supply of drugs- prison, to reflect it’s policy on general deterrence.

However, in a recent decision of the Supreme Court, NSW have relaxed it’s approach in punishing those dealing with illicit drugs to a substantial degree.

The New Decision of Parente v R [2017] NSWCCA 284

The Decision of Parente v R is an important decision that clarifies whether people who supply drugs to an extent, that is considered a “substantial degree”, must go to prison. Mr. Parente’s case, in 2017, established that there is no such rule- that there is no mandatory rule that all offenders of such drug supply are to be sent to prison.

Before Parente’s case in 2017, there was a principle (known as the Clarke principle) that made it compulsory to send those to prison, where the supplying of drugs was to a substantial degree, unless “exceptional circumstances” are established in the case.

Mr. Parente was a lawyer who pleaded guilty to supplying 100 tablets of MDA weighing 16.8g, and supplying a commercial quantity of 1.37kg GBL, amongst other drug offences. He was initially sentenced by a District Court Judge to 4 years imprisonment with a 2 year non parole period.

Mr. Parente appealed his sentence, and took it to the Supreme Court on two main grounds, namely:

  1. The Judge below failed to take into account, as a mitigating factor (to reduce his punishment), his loss of right to practise as a lawyer as a result of committing these offences; and
  2. That anyone who supplies drugs to a substantial degree must receive full time prison, unless there are “exceptional circumstances”, should no longer apply as a rule in all cases.

The offender failed on the first ground, where the Court of Criminal Appeal in NSW held that the Judge in the District Court did take into account the offender’s loss of right to practice law. However, Mr. Parente was successful on the second ground.

The First Ground of Appeal- Extra Curial Punishment Suffered

The law allows for offenders to be given further leniency in a sentence, where punishment has been inflicted otherwise than by the Court, as a result of committing the offence. This includes abuse, harassment, revenge or retribution by others. (R v Wilhelm [2010] NSWSC 378).

The Supreme Court in Mr. Parente’s case found, that there was no error made out here. The Sentencing Judge in the District Court did take into account extra Curial punishment, namely, the loss of his right to practice as a lawyer as a result of these drug offences.

The Second Ground of Appeal- The Clarke Principle

Mr. Parente argued, successfully, that the rule previously established by the Supreme Court is not a rule and does not necessarily apply to people who are found to be supplying drugs to a substantial degree.

In other words, there is no rule that makes it compulsory to send people to prison where he/she is found to be supplying drugs to a “substantial degree” even where there are no “exceptional circumstances”.

Mr. Parente’s case establishes that, in applying a rigid rule, that people supplying drugs to any substantial degree must go to full time prison (unless there are exceptional circumstances), is inconsistent with the Judicial sentencing discretion.

This means, and confirms the point that Judges have the options to now consider non custodial options of punishment, other than full time prison, for those found to be supplying drugs to any substantial degree.

Sentencing options, other than full time prison, include home detention, intensive corrections order, or suspended sentence. These sentencing options are about to be changed where some will be removed, and others replaced with other forms of punishment.

What Amounts to Supplying Drugs to a “Substantial Degree”?

While the case of Mr. Parente removed the rule that previously required all offenders to be sent to prison if he/she is found to be supplying drugs to any “substantial degree”- this does not necessarily mean you won’t go to full time prison if supplying to that extent.

It may be that someone supplying to a “substantial degree” ends up getting full time prison, however, that will depend on other factors relevant to the case. Those factors include, the extent of the “substantial degree” of supplying, the motive, whether there are “compelling circumstances”, and other objectives of punishment.

While this is the case, generally, an offender found not to be supplying drugs to a substantial degree, certainly, has a much better chance at avoiding a full time prison sentence. See this link on more information on drug supply.

Whether a case is found to be supplying drugs to a “substantial degree” or not, it will depend on the individual facts of each case.

However, there are certain factors that can assist in forming a view on whether the offence involves supplying to a “substantial degree”. These factors include:

  • Supplying drugs on more than one occasion. Although there may be cases where supplying on one occasion may still amount to “supplying to a substantial degree”.
  • Level of sophistication involved in the supply.
  • Duration of time the supply occurred.
  • Amount of drugs involved.

Can You Avoid Full Time Prison Where Drugs are Supplied to a “Substantial Degree”?

Before Mr. Parente’s case, there appeared to be a mandatory requirement for Courts to send offenders to full time prison, if:

  • You were found to be supplying drugs; and
  • The supplying of the drugs was considered to a “substantial degree”; and
  • There were no “exceptional circumstances”.

Since Mr. Parente’s case in 2017, firstly, even where you are found to be supplying drugs to a substantial degree, the court is not required to send you to full time prison (even if no exceptional circumstances are shown).

Secondly, if the court considers that it should send you to full time prison, where you are found to supply drugs to a “substantial degree”, it can still give you a non-custodial sentence (avoid prison) where there are “compelling circumstances”, not “exceptional circumstances” (Robertson v R [2017] NSWCCA 205, Simpson JA at [48]).

This then maintains the Judges discretion on whether or not to send an offender to full time prison, or an alternative to prison, depending on the circumstances of the case at hand.

Often, as an experienced criminal lawyer, I have represented countless clients facing drug supply of varying degrees. Often, those found to be supplying illicit drugs to any extent have their own addiction to it, and initially become involved in it’s supply from that addiction- a vicious cycle that may be better addressed in the way Portugal have addressed it.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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