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Wednesday, 8 December 2004
Page: 7

Senator GREIG (9:44 AM) —The Customs Amendment Bill 2004, which has been introduced as a matter of urgency by the government, makes changes to the maximum penalties available for drug offences under the Crimes Act. The government indicates that recent prosecutions have highlighted an anomaly within the current provisions. Drug offences under the Customs Act are divided into those categories relating to trafficable quantities and those relating to commercial quantities of a prescribed drug. A commercial quantity is larger than a trafficable quantity and therefore attracts a heavier maximum penalty of life imprisonment, rather than 25 years imprisonment.

Currently, there are a number of drugs for which no commercial quantity has been prescribed under the act. In other words, the act only prescribes a trafficable quantity for those substances. I am informed that the reason for these omissions in the act can be largely explained by the fact that, at the time when the drug offences were originally created, many of those substances were not being brought into Australia and used to the same extent as they are now. It appears that commercial quantities were prescribed for the more readily used drugs, while only a trafficable quantity was prescribed for the more rare drugs.

The drug market has changed considerably since that time and some of these substances, such as ice, are being more widely used and presumably imported in larger quantities. The government has informed the Democrats that this issue was highlighted recently during a trial relating to a customs offence involving a very large quantity of ice. I understand that the sentencing judge in that case sentenced the defendant to 25 years imprisonment, but commented that he would have given a sentence of life imprisonment had that option been available to him at the time.

One of the important considerations for the Democrats in examining this bill is that the effect of the bill is simply to provide more severe maximum penalties. There is no prescription of minimum penalties and, more importantly, the sentencing discretion remains with the court. I understand that the sentencing guidelines set out in the Crimes Act will continue to apply and will guide judges in determining the most appropriate sentence in the circumstances of the case. This means in practice that someone could commit an offence relating to a commercial quantity of a prescribed substance and it would be possible for them to receive a penalty that is less than the maximum penalty for a trafficable offence. Whilst I am not advocating light penalties for serious drug offences, the point I am trying to make is that the discretion as to the most appropriate sentence will remain with the court. This is vitally important, because it is the court that hears all the evidence in a particular case. It has the opportunity to hear submissions about any mitigating or exacerbating circumstances that may justify a longer or shorter term of imprisonment.

Essentially, the legislation will combat situations such as that which occurred in the recent ice prosecution, where the judge was of the view that a heavier sentence should apply, but was not able to give such a sentence due to the current legislative restrictions. This bill will give judges a broader discretion to determine appropriate sentences for serious drug offences. On that basis, we Democrats readily lend our support for the legislation.