N Touch
Wednesday 15 August 2018
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Strange sentence

WHATEVER lies behind the handing down of a $17,000 fine for a $1.56 million cocaine offence, none can deny the outcome appears, at first instance, unusual and unjust. It calls for a careful re-examination of the facts as well as the legal and policy issues engaged by sentencing for drug offences in today’s world.

Judicial officers normally have some degree of discretion in how they hand down sentences for criminal offences. But this discretion is regulated by rules, procedures, and practices that see a mix of factors considered. Those factors start with the law: the statutes and precedents governing the factual matrix. Then, legal formulae and principles, if applicable, should be considered, such as the degree of severity of the case, any aggravating factors.

If there is even more room for discretion beyond these factors, a judicial officer also has the power to hand down sentences based on public policy. Some decisions can be justified on the ground that they relate more to their usefulness to society as a whole than purely to notions of retribution and punishment. It is very much possible that a judicial officer can decide that there is merit in reserving the most severe sentences for the most important cases. For instances, a magistrate might get fed up of only seeing the “small man” repeatedly in the dock, with little sign of the “big fish.”

Handing down sentences on the lower-level operatives in the drug trade does little to stop the overall scheme. The big actors, who can afford to pay even the highest fines, too often remain in the shadows. But if this is the case, there must be some kind of power or discretion bestowed, empowering the magistrate to make such a decision. And there must be a consistent policy when it comes to enforcement.

Was this kind of thinking behind this case? Was there any thinking behind the case at all? Why were police prosecutors reportedly caught off guard? What is the outcome of queries due to be made by the Office of the Director of Public Prosecutions? Is there the possibility of appeal? If so, who would bear such costs?

All of this points to the deeper issue of the continued criminalisation of drug offences. While cocaine is on the more dangerous end of the spectrum, there is a general movement toward legalisation in relation to marijuana offences which needless bog down the criminal justice system.

Murders are happening daily will little sign of the courts keeping up. While we praise any gains made, such as yesterday’s reported discovery of $20 million in cocaine in a vessel, as a society should the police really be devoting time and resources to fighting the drug trade? Should we not be focusing on getting to grips with murders?


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