R v Stamatov

Those practising in criminal law will find this recent Court of Appeal decision of some interest. It considered whether a distinction should be made between steroids and non-steroidal dangerous drugs in Schedule 1 of the Drugs Misuse Act 1986 when sentencing a defendant in respect of a charge of trafficking those drugs. The court rejected the submission that it ought to take into account the relative harmfulness of specific drugs, on construction of the relevant provisions, although fell short of stating a general principle that it should never do so. The Court of Appeal also rejected that exceptional circumstances are required before a sentence not involving actual imprisonment could be ordered for a charge of trafficking in a Schedule 1 dangerous drug.

Gotterson JA and Atkinson and Applegarth JJ

28 July 2017

In this recent matter a unique issue was raised on appeal, namely whether in sentencing a distinction should be made between steroids and non-steroidal dangerous drugs in Schedule 1 of the Drugs Misuse Act 1986 according to their relative harm.

The applicant had been sentenced to a term of three years’ imprisonment, with parole after six months, upon pleading guilty to trafficking primarily steroids. On appeal, he argued that the learned sentencing judge had erred:

1. in concluding that he was not permitted to distinguish between steroids and other Schedule 1 dangerous drugs for the purpose of sentencing; and
2. in fettering his discretion by determining that “exceptional circumstances” had to be shown before a sentence not involving actual imprisonment could be imposed for trafficking in a Schedule 1 dangerous drug. [3].

Relying upon Ibbs v The Queen (1987) 163 CLR 447, in which the High Court recognised that the mere fact that an offence carries a single maximum penalty does not require a sentencing court to regard each form of the offence as being equally serious, and the gravity of the relevant conduct depends on the facts of the case [27], the applicant submitted that consideration of the relative effects on the user and upon society of methamphetamine and steroids ought have been taken into account by the court. In that regard he specifically cited s 9 of the Penalties and Sentences Act 1992 as possibly enabling different considerations to apply between trafficking in methamphetamine and trafficking in steroids. [31].

The respondent’s approach was that under the Queensland legislative regime, there is no scope for distinguishing between the various drugs within a particular schedule. In its view, as a matter of statutory construction, the harmfulness of a drug is irrelevant to the exercise of the sentencing discretion: see R v Pidoto and O’Dea (2006) 14 VR 269 at 271. [34], [35]. Similar submissions had been made before the sentencing judge.

Legislative intent

The court considered that, similar to the case of Adams v The Queen (2008) 234 CLR 143, which had been cited favourably by the sentencing judge, it was a question of statutory construction as “to whether there [was] anything in the statute which required or [permitted] a court to sentence on the basis that the relevant conduct in respect of one prohibited drug is in some way less anti-social than the same conduct in respect of another drug”. [55]. Having regard to the specific statutory context and the fact that it was clearly Parliament’s intention, as reflected in the enactment of the 2014 amendments, that trafficking in certain drugs ought attract the same or similar penalties, [57]–[58] the court had difficulty with that submission.

Practical issues

In addition to the above, the court observed that various practical hurdles would be encountered in the event it attempted to reliably assess the relative harmfulness of specific drugs. That was due to (a) the lack of clarity about the kinds of harm being assessed; (b) the need to approach generalisations with caution; and (c) the need for current, reliable information as an evidentiary base if the matter was not one about which judicial notice may be taken. [59]–[63].

Ultimately, the court’s view was that the sentencing judge’s approach in concluding that he was unable to attempt to determine whether a distinction should be drawn between steroids and other Schedule 1 dangerous drugs for the purpose of sentencing for the offence of trafficking was correct. [65]–[69], [92]. Nonetheless the court stopped short of proffering a statement of general principle that under the Queensland legislation it is never relevant to consider the harmfulness or relative harmfulness of the drug in question, noting that it was not clear that that conclusion followed as a matter of statutory interpretation. [78]. In the lead judgment, his Honour Justice Applegarth suggested that it would be rare that a sentencing judge would embark upon the task of attempting to compare the relative harm of drugs in the same schedule, given the imprecision in what is meant by “harm”; appropriate deference to legislative assessments of relative harmfulness and the absence of a suitable evidentiary basis to do so, unless judicial notice may be taken. [90].

The exceptional circumstances issue

In addressing whether there was merit in ground 2 of the appeal, the court examined the sentencing remarks which revealed that in the course of handing down the applicant’s sentence his Honour had made the comment that “the circumstances are not exceptional”. [93]. Those remarks were delivered ex tempore and it is usual practice that imprecision in expression in an ex tempore judgment can carry less weight as compared to remarks contained within a reserved judgment. [97].

On balance, and acknowledging that the considerations were “finely balanced”, the court took the view that the sentencing judge had indeed erred in concluding that exceptional circumstances had to be shown, however that conclusion alone did not absolve the applicant from being required to serve a period of actual custody. [100]. In re-exercising the sentencing discretion the applicant had argued that the particular circumstances of the case warranted a suspension of the sentence of three years’ imprisonment after the period which the applicant had already served, or alternatively that he be released on parole as at the date of judgment. [101]. After due consideration the court considered it appropriate that the period of actual custody be six months. [107]. In the result leave to appeal against sentence was granted but the appeal was dismissed. [108].

A de Jersey