The common law – or ‘judge made law’ – refers to the body of law developed by the decisions of judges. In a common law system, past decisions are known as ‘precedents’. Fundamental to the common law is the principle of ‘stare decisis’ – a Latin phrase which means ‘to stand by decided matters’.
Stare decisis – in modern terms known as the ‘doctrine of precedent’ – requires that where a similar dispute or issue has been decided in the past, a court is required to apply the reasoning employed in the previous decision. By treating like matters in the same way, the common law promotes consistency and stability in the legal system.
In a common law system, decisions of superior courts are binding on inferior courts. So, for example, precedents set by the High Court of Australia must be followed by the Supreme Court of New South Wales, the District Court of New South Wales, and the Local Court of New South Wales.
Superior Courts, including the High Court of Australia and the Supreme Court of New South Wales, also have the power to depart from precedent and develop new laws where necessary or appropriate, or when faced with unique or new legal issues.
In this way, the common law is able to develop, refine, and in some cases even overturn, previously decided law.
Development of Common Law
In relation to the development of common law, former High Court Justice Brennan remarked:
“The common law has been created by the courts and the genius of the common law system consists in the ability of the courts to mould the law to correspond with the contemporary values of society. Had the courts not kept the common law in serviceable condition throughout the centuries of its development, its rules would now be regarded as remnants of history which had escaped the shipwreck of time…”
Significant Drug Supply
A recent example of how the common law develops over time is the decision of Robertson v R  NSW CCA 205.
In that case, decided just last month, three Justices of the New South Wales Court of Criminal Appeal (NSWCCA) overturned a long line of authorities relating to the sentencing of those engaged in the supply of significant quantities of illegal drugs.
Prior to Robertson, it was considered a rule that where an offender was involved in drug trafficking to a substantial degree, a sentencing court had to impose a sentence of full-time imprisonment unless “exceptional circumstances” were present.
This general principle, confirming a long line of prior authorities, was stated by Hunt J (as he was then) in the decision R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported):
“This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non custodial order be appropriate.”
The principle in Clark was affirmed in numerous Supreme Court and lower court decisions in the ensuing twenty-seven years. By 1998, the principle was considered so well established that the Supreme Court referred to it as a statement “about which there is no room for debate”; R v Cacciola  NSWSC 531.
The principle was further confirmed in 2006 (R v Saba  NSWCCA 214 and R v Wen Fei Gu  NSWCCA 104), again in 2007 (Fayd’Herbe v R  NSWCCA 20), and in 2010 (R v Pickett  NSWCCA 273), and many other decisions since that time.
Clark – Inconsistent with the Usual Approach to Sentencing
From a criminal defence lawyer’s perspective, Clark employed a broad brush approach to the sentencing exercise.
Ordinarily, a court is required to consider all of the circumstances of the offending as well as the personal features of the offender in a process of ‘instinctive synthesis’, before determining an appropriate sentence.
If sufficient and compelling mitigating factors apply – such as youth, good character and proven rehabilitation – a sentencing court might be persuaded to impose a penalty less than full-time imprisonment, despite the seriousness of the offending conduct.
The decision in Clark is inconsistent with this form of analysis, dictating that an offender must go to prison unless exceptional circumstances are shown – a sort of ‘presumption’ in favour of prison. And as will be explained later, Clark is also bad law as it is at odds with the provisions of the Crimes (Sentencing Procedure) Act 1999.
Liam Robertson – Applying Clark in the District Court
Liam Robertson was a 19-year old man who appeared for sentencing on four counts of drug supply before District Court Judge Buscombe on 4 April 2017.
The court heard that Mr Robertson came from a stable family environment and had no prior criminal convictions.
He had commenced using drugs in his teens and became involved in drug supply only after he started buying in bulk to save money. He was selling relatively small quantities to his friends and acquaintances.
The judge accepted that the offender had stopped using drugs, was remorseful, had excellent prospects of rehabilitation and was unlikely to reoffend. He also assessed the objective gravity of the offence as “well below the mid-range” for an offence of drug supply.
Despite all of this, His Honour found that the decision in Clark required the imposition of a full-time custodial sentence.
His Honour remarked that as it had been established beyond a reasonable doubt “that the offender was supplying drugs in a substantial way,” “the general principle is that unless there are exceptional circumstances a sentence of full-time imprisonment should be imposed.”
This “principle is long standing in” NSW, His Honour continued, before sentencing the young man to an aggregate sentence of 20 months imprisonment, with a non-parole period of 10 months.
All Sentencing Options Must be Considered
Mr Robertson appealed his sentence to the NSWCCA.
His lawyers submitted that the ultimate sentence was “manifestly excessive”, and that the sentencing judge had made an error of law by failing to consider the imposition of a non-custodial sentence, such as an intensive correction order (ICO).
An ICO is a sentence served outside of prison that requires an offender to undertake 32 hours community work a month, to be of good behaviour (ie not commit any offences) and to regularly meet with a Community Corrections officer. It can also include drug and alcohol testing, rehabilitation programs, a curfew and electronic monitoring.
NSWCCA Justice Simpson remarked that an ICO is an option “even in cases of drug supply”.
Her Honour noted that it was clear that the sentencing judge had excluded this possibility, because of the established “principle” he referred to.
The judge found that this was an error, as a result of which it was necessary to resentence Mr Robertson.
Justice Simpson emphasised that section 5(1) of the Crimes (Sentencing Procedure) Act 1999 prescribes that a “court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”
This, Her Honour found, is the “starting point in any sentencing exercise.”
She reasoned that in stating what judge Buscombe called, “‘the general principle,’ that is, that offences of drug dealing to a substantial degree will necessarily be met by sentences of imprisonment, the sentencing judge was reflecting a long line of decisions of this Court.”
Her Honour doubted that “principle” was the right word. “It may more accurately be called a judicially imposed constraint on the exercise of the sentencing discretion,” She remarked.
While the Clark ruling may be used a yardstick for sentencing judges, it provides no statutory requirement, Her Honour found.
She added that the “imposed constraint” fails to establish what substantial drug supply is, along with what might constitute the “exceptional circumstances,” and also “fails to identify the source of the exception.”
Her Honour found that the formulation in Clark effectively dictates, “in cases of drug trafficking, non-compliance with the mandate of section 5”, and is therefore at odds with the law.
Prison as a Last Resort
Although the judgment in Robertson was delivered by Justice Simpson, the remaining members of the three judge panel – Justice Harrison and Justice Davies – agreed with the decision in full.
The NSWCCA is the state’s highest criminal appellate court. By decisively rejecting the general principle established in Clark, the judges altered the common law with respect to sentencing offenders for significant drug supply.
The decision is authority for the proposition that prison is a last resort, and illustrates that the common law can change over time.
However, it is a stretch to assert that the decision opens the floodgates to more lenient sentences for drug supply.
Rather, it is a reminder that courts must consider all objective circumstances, relevant personal factors and sentencing options when deciding on the appropriate penalty.