Should Drug Addiction Lead to a Lesser Sentence?

According to a report published by the Australian Institute of Criminology, nearly half of 1,884 police detainees surveyed in nine data collection locations reported that their offending was related to drug or alcohol use.

Most of those who reported the link either advised that their offending occurred whilst intoxicated, or in the pursuit of funds to acquire substances of addiction.

Despite the link between drugs (including alcohol) and offending, courts have generally been reluctant to find that addiction is a ‘mitigating factor’ (something which makes a crime less serious) when imposing a sentence.

Traditional view

In the case of R v Valentini (1989) 46 A Crim R 23, the court made it clear that drug addiction is not generally a mitigating factor when it comes to sentencing; at [25].

Similarly in the ‘guideline judgment’ for robbery offences in R v Henry (1999) 46 NSWLR 346, Spigelman CJ made it clear that an offender’s drug addiction should not normally lead to a lesser sentence:

“The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs…

“The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other, but legal, purpose is perverse”, at [206].

Many view drug addiction as a choice, distinguishing it from factors such as mental health issues and youth, which are matters beyond a person’s free will.

Considerations allowed in R v Henry

Despite Spigelman’s remarks, Wood CJ in the same case outlined a range of situations where addiction may be relevant to the sentencing process.

His Honour found that where an offence was committed to support a habit, this may be relevant in determining the objective criminality, the presence of any aggravating factors, and the weight given to such factors where they are present.

In particular, the judge remarked that a drug addicted person may be less likely to:

• Meticulously plan an offence (extensive planning being an aggravating factor in sentencing),
• Be part of a serious criminal venture or organisation (and more likely to be simply supporting an individual habit),
• Be of sound mind and judgment when committing the offence.

The court in R v Wood added that addiction may be relevant in assessing the prospects of rehabilitation, the likelihood of reoffending and – where addiction had snowballed due to factors beyond personal choice (eg due to taking prescribed medication) – the moral culpability of the offender.

The court also noted that age is a relevant factor when sentencing a drug addicted offender.

A number of other cases have expanded on the relevance of age, and the point about addiction arising from factors other than personal choice.

Relevance of age

The case of Hayek v R is authority for the proposition that age is relevant when imposing a penalty upon a drug addicted offender; at [80].

In the case of Brown v R [2014] NSWCCA 335, the offender became addicted to illegal drugs from the age of 9 or 10. The court held that this was an age at which his drug addiction could not be classified as a personal choice, and he was entitled to some leniency.

However, in R v Gagalowicz [2005] NSWCCA 452, appeal court found the initial judge erred by treating the 16-year-old offender’s drug addiction as a matter in mitigation; at [33]. The NSWCCA noted that the offender’s history suggested he became addicted due to his own free will, rather than at an age where he could not make rational decisions.

Reasons behind addiction

In Brown v R [2014] NSWCCA 335, the court adopted the remarks of Simpson J in R v Henry by finding that where a drug addiction has its origins in circumstances such as social disadvantage, poverty, emotional, financial or social deprivation, poor educational achievement or sexual assault, it is appropriate for rehabilitation to be given greater weight; at [26] to [29].

By contrast, an addiction which commenced at 14-years of age due to peer pressure, to “‘look cool” and to “impress a girl… did nothing to mitigate the applicant’s crime”: Hayek v R. Rather, the judge found that “long term unaddressed addiction to prohibited drugs could have legitimately increased the sentence”: Hayek v R at [84].

Prescribed medication

Habitual drug users often trace their addictions to traumatic physical or psychological events, which led to the prescription of addictive medications.

In Turner v R [2011] NSWCCA 189, the court held that an addiction to prescription opioid medication following an accident was indeed a factor in mitigation, as the offender did not make a conscious decision to engage in illegal drug use.

So in summary, while drug addiction is not necessarily a factor which mitigates a criminal offence, there are certainly situations where it may be taken into account and ultimately lead to a lesser penalty.