Penalties imposed vary depending on all the circumstances.
The penalties that have been stated earlier in this section are the maximum possible penalties. The actual penalty that may be imposed will vary widely, depending on all of the circumstances.
When determining what penalty to impose a court must consider [Controlled Substances Act 1984 (SA) s 44]:
- the nature and the quantity of the substance;
- the personal circumstances of the offender (if relevant) including circumstances relating to his or her use of the drug;
- the person's commercial or other motives for committing the offence;
- the financial gain that was likely to have been made by the person as a result of the offence;
- where a child has been supplied a drug of dependence or prohibited substance, whether the offence occurred within a school zone or near to any other prescribed place, or whether a child was present when the offence occurred; and
- any other relevant factor
High penalties imposed for commercial offences
The Supreme Court of South Australia has reiterated its determination to maintain high penalties for drug offences of a commercial nature to deter people who are tempted to engage in these activities.
In R v Mangelsdorf, R v Perry and R v Richards (1995) 66 SASR 60, the Court of Criminal Appeal heard and upheld three simultaneous appeals by the Director of Public Prosecutions against inadequate sentences imposed in lower courts.
Mangelsdorf was a 32 year old 'street trader' found in possession of fifteen 'tastes' of heroin who admitted selling 'tastes' for about 2 months to finance his own addiction. Notwithstanding a previous 'clean' record and good prospects for rehabilitation a suspended term of imprisonment was increased to 4 years, with a non-parole period of 18 months, unsuspended.
Perry was a 20 year old without previous convictions. Following intercepts of phone conversations he was convicted of conspiring to trade in LSD. He had a 'clean' record, and a number of other personal factors in his favour. He received a 2 years 6 months suspended term of imprisonment with an order that he perform community service work.
Richards was originally given a suspended sentence for possession of about 8 kg of cannabis and 80 g of cannabis resin for purpose of sale. This was increased to four years imprisonment, with a minimum of two years to serve.
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