. . . Dealing in drugs at any level, as long as there is a commercial aspect to it, will normally attract a sentence of imprisonment. There is no doubt that the present offending has that commercial overtone. In a short space of time the appellant was dealing with three types of drugs. In the first offence he initiated the offer to sell, and set a price. On another occasion he is seen sourcing cannabis in a quantity that would trigger the presumption of supply. On another occasion he agrees to supply “on tick”. It is plain others see him as a source, and the overwhelming impression is of a bottom level, middleman type dealer. That being our assessment of the facts, it cannot be said a sentence of imprisonment was either unavailable or manifestly excessive.
We agree with the Court below that general deterrence is an important consideration in the area of drug dealing, but that is because it is a principle well established in civilian law. We resist the proposition implicit in the lower Court’s decision that membership of the Armed Forces is itself always an aggravating factor or that there is a separate tariff. If the offending were wholly unconnected with the military context, then an armed forces offender should expect a similar sentence to a civilian. That said, any link between the offending and the offender’s position within the Armed Forces is likely to constitute an aggravating factor. The stronger the link, the more serious the matter may well be viewed because of the potential danger. Here the link is at the lower end. In the first transaction, an offer to sell, two recipients of the offer were also soldiers. Other than that, the offending was unconnected.
Still on the topic of general deterrence, we accept the Crown’s submission that a sentence of detention may often provide insufficient deterrence in this area of drug dealing. That is not to ignore the punitive elements of this sentence but it nevertheless still has the armed services context, the other detainees will be armed services personnel and the detainee is still on pay, albeit reduced. Ultimately, however, whether these features satisfy the need for deterrence will be case specific.
We were referred to a large number of cases both from the military courts and courts of general jurisdiction. None were on all fours and we did not find them of particular assistance. Counsel had located only one previous case where imprisonment had been imposed by the military Court for drug offending. The details are sketchy but it seems to have involved obtaining and using cannabis oil, and providing it to another person. It is not clear whether this supply was commercial but it does not seem to have been. The offending seems to have been much more closely linked to the offender’s base. The sentence was nine months’ imprisonment.
That case appears to us to be a different type. The offender was more of an addict than a dealer, and it seems he brought his addiction into his service life. One of the charges, for example, involves trading military clothing for drugs. By contrast, as noted, we see the present case as involving a member of the armed forces, outside his normal employment, acting as a very low level drug dealer. As such the primary source of precedent are decisions of civilian courts.
We recognise the appellant has otherwise suffered hardship. He has lost his employment and has been unable to complete his apprenticeship. The matter was delayed, and it was hanging over him for quite some time. He is a first offender who must now start again. Notwithstanding this, we are not persuaded that a sentence of imprisonment, nor a term of four months, was a manifestly excessive response to the present facts. As noted, drug dealing and imprisonment are always a likely combination. [Paragraph numbering and footnotes omitted.]
Thanks to Global Military Justice Reform contributor Chris Griggs for the link.
That's a very interesting point of view indeed.
ReplyDelete