Queensland’s most senior judge has called on the state government to consider the “unintended consequences” of its predecessor’s punitive drug law changes after the “distressing case” of a young mother whose jail time for dealing ice was more than doubled.
Margaret McMurdo, the appeal court president, has flagged the danger that poorer offenders will face harsher sentences while other cases will create “significant delays” in the courts in response to a sentencing regime introduced by the former Newman government in 2013.
McMurdo made the remarks in a ruling last week on the case of Aimee Clark, whose “downward spiral” after the death of her first-born baby at three months of age led to her trafficking ice.
Clark developed a $300-a-day ice habit after being the target of a six-month police investigation over her baby’s death, which was eventually found to have been the result of sudden infant death syndrome.
The Queensland attorney general, Yvette D’Ath, has promised to review the case and the Newman government’s Criminal Law and Other Legislation Amendment Act.
McMurdo said laws mandating traffickers of schedule one drugs serve at least 80% of their head sentence meant Clark, “who previously would have spent about 12 months in prison for this offending, will now spend almost two years and five months in prison”.
At the same time her parole time under the laws was cut from two years to “a mere seven months”.
“This result does not seem to be in the community interest,” McMurdo said.
The former attorney general Jarrod Bleijie lauded changes to the Drug Misuse Act in August 2013 as “just another step this government is taking to ensure Queensland is the safest state in Australia to raise a child”.
McMurdo said the upshot of the changes – under which offenders’ only shot at a suspended sentence was evidence of rehabilitation – was that those “who have funds available may seek to delay their sentences to assemble evidence”.
Offenders without money “who are unable to assemble such evidence may be ineligible for a suspended sentence and will be sentenced much more harshly”, McMurdo said.
To avoid this, judges may have to delay an offender’s sentence until more information about rehabilitation can be obtained, she said.
“The legislature may wish to consider whether the amendments … have resulted in unintended consequences which are not in the interests of the criminal justice system or the community.”
A spokesman for D’Ath said she would be “looking closely at the decision and Justice McMurdo’s remarks to determine whether action need to be taken in the future”.
McMurdo agreed with a fellow appeal court judge, Philip Morrison, that Clark’s head sentence of three years was not “manifestly excessive” under the sentencing regime in place.
The only ways for drug offenders to serve less jail time under the Newman changes was through an intensive corrections order – for which trafficking was too serious for Clark to be eligible – or a suspended sentence, which the primary judge correctly noted would offer the repeat offender “no support and would be setting her up to fail”, McMurdo said.
It was Clark’s first jail stint after a series of prior offences for drug possession, including one while on probation.
She wound up trafficking to make money and support her habit. She was a street-level dealer who sold grams of ice for up to $800. Her total customer base and profits were unknown but she once teamed up to buy 18 grams for $9,000, and once had 13 customers owing her $6,000.
At one point, Clark told police she used cannabis and ice to cope with “pregnancy pain” while carrying another child.
Clark’s criminal history began in November 2013 – months after the Newman drug laws were introduced – “after she began using drugs following turmoil in her life after her first-born child died of sudden infant death syndrome”, McMurdo said.
“Until then she led a law-abiding life with promising career prospects,” she said.
“She went on to have two more children, one aged five, and another five months at sentence. They were then in foster care but she hoped to reunite with them with the assistance and support of her mother who attended the sentencing hearing.”
McMurdo added: “Given her drug history and her vulnerability, it is in the community interest that, when she is released on parole, she be subject to extended supervision and support, combined with the tight controls of a parole order, as she struggles to reunite her young family and to reintegrate into the community.”
Morrison said the application of the former government’s drug policy had “evident difficulties”. Offenders showing signs of rehabilitation in prison served 80% of their sentence “no matter how worthy the conduct and no matter how strong the rehabilitation”.
“One would be forgiven for thinking that cannot be in the community’s best interests,” he said.
There was also an “inescapable tension” because offenders needing to “demonstrate as clearly as possible, by the time of the sentence, that steps to rehabilitate have been taken” would decide it was in their best interests to delay sentencing hearings. This was in conflict with the longstanding principle that “an offender should not be punished for pleading guilty at the earliest possible time”.
Defence lawyers who worked towards such delays risked breaching their duties to the court – but courts who unfairly deprived offenders of a shot at showing rehabilitation risked being “seen as an arm of the legislature’s policy”.
“Policy matters such as that … are not matters for the court, Morrison said.
