For reasons of etiquette as much as of law, the Court refrained from calling its decision a "guideline" or "tariff" judgment, as the bench included only one permanent member of the Court of Appeal. Left for clarification is whether this guidance applies to class A drug offences other than those involving methamphetamine, especially the hallucinogenic drugs.
General points notable in Arthur are:
- The starting point for a sentence is determined, before taking into account matters of aggravation (such as relevant previous convictions) and mitigation (such as guilty plea).
- The sentencing principles in the Sentencing Act 2002 take effect once the starting point is set, unless for truly exceptional reasons a custodial sentence is not appropriate.
- The starting points set out in Arthur apply to offences of supply. Importing or manufacturing may warrant higher levels of sentence.
- The quantity of drug involved in the offending, although important, is not the only factor to consider, therefore there may be some overlap between the ranges of the starting points.
The ranges of appropriate starting points, based on those applicable in New South Wales, are:
- Low level supply, up to 5 grams, from 2 to 4 years’ imprisonment
- Commercial quantity supply, between 5 and 250 grams, from 3 to 9 years’ imprisonment
- Large commercial quantity supply, in excess of 250 grams, upwards of 8 years’ imprisonment
The Court noted that, for the low level offending, sentence ranges were similar to those that have recently been applied in the High Court.
We can be pleased that the Court refrained from repeating one of the hackneyed tautologies of deterrent sentencing: that in addition to setting the starting points high in the interests of general deterrence, the court places little importance on the particular circumstances of the individual offender. This is a tautology because setting sentencing levels by the requirements of general deterrence itself involves ignoring the particular circumstances of individual offenders; there is no need to ignore them twice, for on the second occasion they may be ignored at the expense of justice. That is particularly important because, even under a regimen of general deterrence, some movement back from the higher levels of sentence may be required in the interests of justice to acknowledge the particular circumstances of an individual offender.
Update: Subsequently, in R v Fatu CA415/04, 18/11/05, guidelines for methamphetamine dealing (manufacturing, importing, supplying) were set down, based on the Arthur levels but with increases to reflect the greater seriousness of importing and manufacturing as compared with supplying. The Court used the quantity of drug, rather than its value, as the basic yardstick, and made no reference to ignoring the personal circumstances of the offender. The starting points set down were based on the seriousness of the offending, and recognition could then be given to the individual aggravating and mitigating circumstances. It is still not clear how broadly the mitigating circumstances personal to the offender can be construed under Fatu; traditionally these have been presence or absence of previous convictions and an early plea of guilty signifying remorse.