Background
The applicant pleaded guilty in the District Court to two counts of supplying a prohibited drug (MDA tablets and 1,4-butanediol) and one count of supplying a commercial quantity (1.3728kg of GBL). Three further offences were taken into account on a Form 1. He was sentenced to an aggregate of 4 years' imprisonment with a 2-year non-parole period.
The sentencing judge made strongly favourable findings: genuine remorse, previous excellent character, low risk of reoffending, and excellent rehabilitation prospects. Nevertheless, his Honour applied what he understood to be the "Clark principle" — a rule drawn from R v Peter Michael Clark (NSW CCA, 1990) — holding that persons substantially involved in drug supply must receive a full-time custodial sentence unless exceptional circumstances exist. No exceptional circumstances were found, and custody was imposed. The applicant appealed.
The significance of the issues warranted a five-judge bench.
Legal Issues
- Does the "Clark principle" constitute a binding rule of law that mandates full-time custody for substantial drug supply absent exceptional circumstances?
- Did the sentencing judge err by failing to explicitly address the applicant's loss of the right to practise as a lawyer as a form of extra-curial punishment?
- If error is found, how should the sentencing discretion be re-exercised?
Decision
The Court of Criminal Appeal (Macfarlan JA, Hoeben CJ at CL, Leeming JA, Johnson J and R A Hulme J) granted leave to appeal but dismissed the appeal after re-exercising the sentencing discretion.
On the Clark principle, the full bench held emphatically that it is not a rule of law. Framing the sentencing exercise as one requiring "exceptional circumstances" to escape custody is legal error — it elevates what is at best a strong sentencing tendency into a mandatory rule that fetters the proper exercise of judicial discretion. A court must weigh all relevant factors under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) without being constrained by such a rule.
The Court noted the wide currency the Clark principle had gained in NSW courts and the need for a definitive correction. General deterrence and denunciation remain powerful considerations in commercial drug supply — but they must be weighed in the balance, not used to impose a threshold that overrides all other factors.
On re-exercise of the discretion, however, the Court found that a full-time custodial sentence remained appropriate on the facts, adjusting the sentence only modestly. The favourable subjective case reduced, but did not displace, the weight of general deterrence.
Orders Made
- Leave to appeal: granted (sentencing error established)
- Appeal: dismissed after independent re-exercise of sentencing discretion
- Sentence varied modestly on re-sentencing
Key Takeaways
- The Court of Criminal Appeal held that the "Clark principle" is not a rule of law and that sentencing judges must exercise an independent discretion rather than treating full-time custody as mandatory for substantial drug supply offences.
- Imposing an "exceptional circumstances" threshold before alternatives to custody can be considered constitutes a fetter on sentencing discretion and amounts to legal error, as it elevates a sentencing tendency into a binding rule.
- General deterrence nonetheless remains a weighty consideration in commercial drug supply cases, and favourable subjective factors will in many cases not be sufficient to displace a custodial sentence.
- The Court recognised that loss of professional registration (in this case, the right to practise as a lawyer) is a form of extra-curial punishment that should be explicitly addressed at sentencing.
- In convening a five-judge bench, the Court of Criminal Appeal delivered a definitive correction to a widespread but legally erroneous sentencing practice that had developed across NSW courts.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 8, 9, 10
- Drug Misuse and Trafficking Act 1985 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 3, 6(3)
Key cases
- R v Peter Michael Clark (NSW CCA, 15 March 1990, unrep) — the "principle" overruled
- Robertson v R [2017] NSWCCA 205 — prompted additional ground of appeal
- Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41 — sentencing discretion
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154 — prior application of Clark