Adams v The Queen

[2007] HCATrans 607

[2007] HCATrans 607

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M49 of 2007

B e t w e e n -

STEVEN ADAMS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 OCTOBER 2007, AT 10.28 AM

Copyright in the High Court of Australia

MR L.C. CARTER:   May it please the Court, I appear with my learned friend, MR C.B. BOYCE for the applicant.  (instructed by Leanne Warren & Associates)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR R.R. DAVIS, for the respondent.  (instructed by Office of Public Prosecutions (Cth))

KIRBY J:   Yes, Mr Carter.

MR CARTER:   Your Honours, this application raises an important point of statutory construction and principle concerning sentencing for federal drug offences.  Is the harm caused by the type of the drug, including its harm relative to other drugs, a relevant sentencing consideration?  The court below holds no.  The reasoning proceeds in two steps.  Step one, the Commonwealth Parliament has created a quantity based regime for federal drug offences, that is, at the relevant time Schedule VI of the Customs Act distinguished between drugs in prescribing threshold, commercial and trafficable quantities, but the Act makes no distinction as to the applicable maximum penalties.  As my learned friend correctly points out, the relevant provisions are now contained in the Code, but it is not contended that the point of principle is moot, because there is still quantity based classification.

Step two is that because of the way the offences are defined by reference to the same maximum penalty, considerations of harm and relative harm are irrelevant as a matter of statutory construction.  The reasoning of Justice Vincent, with whom the other members of the court agree, is to be found in the application book at pages 51 to 53 under the heading of “Ground 4” in the court below.  I will come back to certain aspects of that in just a moment. 

Your Honours will have gleaned from the submissions that there was an important development in the law in Victoria between sentence in this case and the appeal.  That was that a decision of the Full Bench of the Court of Appeal in R v Pidoto & O’Dea was delivered, the majority in that case holding that harm is irrelevant as a matter of statutory construction.  Justice Vincent in the court below accepted the Commonwealth’s submission that the reasoning in Pidoto applied mutatis mutandis to the Customs Act (Cth).  Your Honours see that at the top of page 52 of the application book.  The Commonwealth’s submission are then extracted and then his Honour states that he agrees at the top of page 53.

HAYNE J:   Now, at sentence was any argument advanced or evidence led that raised this question of comparison that you now seek to agitate?  I know the sentencing judge has this phrase which you fasten on.

MR CARTER:   Indeed, it is the bedrock of the whole proceeding, as it were.  Your Honour, the answer to your question is yes and no.  Can I take you to page 17 of the application book.  It showed what my learned friend and I might describe as the pre-Pidoto view of the world in that the Commonwealth provided via the applicant’s then counsel’s statistics relating to ecstasy cases.  As your Honours see at line 4 on page 17, “I have” been provided “with sentencing statistics in relation to Ecstasy cases” and then at line 15 “EXHIBIT A – Statistic chart concerning Ecstasy”.

Pausing there, it begs the question clearly, if nothing was seen as flowing from the type, his Honour, why would he be confined to be provided with ecstasy?  The other matter though, in answer to your Honour Justice Hayne’s question, is that no evidence was led, no submission was made and, indeed, in at least one of the County Court sentences provided to his Honour the sentencing judge there were statements equivalent to that, which is the contested territory by the relevant ground of appeal, namely, the drawing of an equation between ecstasy and heroin.

HAYNE J:   But what is the comparison that you say can or should have been made?

MR CARTER:   We say that his Honour the sentencing judge was wrong to put ecstasy on the level of heroin.  Because of the intervention of the judgment in Pidoto & O’Dea, that argument has not yet been held in the intermediate court because Pidoto & O’Dea by majority, his Honour Justice Callaway not being prepared to join in the reasons, holds that it is irrelevant.  Now, can I take your Honours briefly to some of the critical passage in Pidoto?

KIRBY J:   Just before you do so, Justice Hayne’s question is, of course, directed to whether this is an appropriate vehicle, because if, in fact, this Court would not have the knowledge of sentencing judges in the District Court, in the County Court and elsewhere, and if we did not have the factual foundation for it, would we be in a good position to deal with what you might say is the Pidoto point, which I think is potentially a significant question.

CRENNAN J:   When you come to answer that, could you factor in the observation of Justice Vincent set out at the bottom of paragraph 21, application book 53? 

MR CARTER:   Yes, your Honour.

CRENNAN J:   If you could take that into account when you are answering his Honour Justice Kirby.

MR CARTER:   Your Honour, I will take both of those in turn.  In answer to your Honour Justice Kirby’s point, there is no inhibition on the capacity of this Court to ‑ ‑ ‑

KIRBY J:   There is no inhibition, but it is a long time since I sat in a Court of Criminal Appeal and, really, when I was sitting, that was before ecstasy was a major issue in the sentencing of prisoners in Australia and therefore I am not really familiar with the levels of sentencing.  The County Court judges would be, but I am not.

MR CARTER:   That knowledge, your Honour, is not necessary to determine the point of principle which is a question of statutory construction, that is, has the Commonwealth Parliament by enacting a quantity‑based regime forbidden sentencing judges throughout the Commonwealth from having any regard to the type and harm caused by the relevant drug, either of itself or by comparison to other drugs?

HAYNE J:   You say they should, that is, you say sentencing judges should have regard to those things or they should not have?

MR CARTER:   They should have the capacity to, your Honour, and they should have in conformity with section 16A of the Crimes Act which was ‑ ‑ ‑

HAYNE J:   May have regard then harmful nature of the drug concerned.  Does that capture your proposition?

MR CARTER:   Yes, and by harm we take the ‑ ‑ ‑

HAYNE J:   How is a judge going to make any assessment of the harmful nature of a drug?  How does a judge get into this field of drawing comparisons between X kilograms cannabis, Y kilograms MDMA, Z kilograms heroin?  How do you do it?

MR CARTER:   Your Honour, two ways that the court can do it is by judicial notice and by the receipt of evidence.  The leading statement of principle in respect of that we rely upon, which has not been overruled – I should say the leading recent statement – comes from his Honour Justice Hulme in R v Poon. 

KIRBY J:   You say there was one, Wang or some other case, since Justice Hulme’s decision in Poon, is there not?  There is a later decision which has been referred to, which is footnoted ‑ ‑ ‑

MR CARTER:   There is a plethora of decisions but the ‑ ‑ ‑

KIRBY J:   It was a 2005 decision.  When was Poon?

MR CARTER:   Poon was 2003, but the statement that I am to take your Honours to was a statement agreed in by the other members of the court.

KIRBY J:   We know what Justice Hulme said.  We are familiar with Poon, but my understanding is that there is a later decision of the Court of Criminal Appeal of New South Wales.

MR CARTER:   There are several, your Honour, and they are all cited in the written submissions.  The ones that I have provided today include Z, behind tab 8, Kevenaar behind tab 9 and Nguyen behind tab 10.  Each of those are authorities that refer to Poon and they do not overrule that statement.

KIRBY J:   It is Dang.  Dang was the case I was thinking of.

MR CARTER:   Yes, Dang is in 2005.

KIRBY J:   Yes, that is right.  So has the situation in New South Wales changed to accord with the position of the joint reasons in the Court of Appeal of Victoria or not?

MR CARTER:   No, your Honour, and the point that perhaps we have not made yet adequately orally, although it is writing, is the distinction to be drawn is between intermediate courts doubting the utility of or the efficacy of ranking them on the one hand – and we accept that there is plenty of authority for that proposition.  It is not like the old days where you could say that is definitely category 3, harmless, but the radical step taken by Pidoto is to say any inquiry is forbidden.  It is an irrelevant consideration.

KIRBY J:   I realise that.  Their Honours in the majority in Pidoto acknowledge that their conclusion “cut across”, that is their words, “our conclusion . . . cuts across the conventional understanding” and you say that conventional understanding in respect of the application of federal legislation is continuing to be operated in other parts of the country by courts of trial, sentence and appeal and that that results in unequal administration of federal laws in courts in this country which Pidoto has thrown into the ring and that we should tackle that because of the inequality in the application of a federal law which should not be applied unequally.  We understand all that.  The question is, would it be better for us in the High Court, where we do not have the day-to-day sentencing expertise, to wait for a case which you and Mr Boyce with your usual vigilance could be keeping an eye out for which has the evidence about the relative harms of ecstasy and heroin?

MR CARTER:   Your Honour, if your Honour turns to the draft notice of appeal, that is not the way this proceeding is intended to proceed.  We seek to win our statutory construction argument which will, in effect, involve the turning of the law to the position it had been since Justice Tadgell delivered judgment in Zeccola back in the early 1980s, that is, because of the quantity based regime, it is not a big factor to look at harmfulness, but it is not precluded and, indeed ‑ ‑ ‑

KIRBY J:   Just let me understand the theory of Pidoto.  The theory of Pidoto is because the Federal Parliament has enacted a regime which affixes levels of punishment by reference solely to quantity of drugs that therefore it is not admissible to bring in another factor as to the seriousness of the harm of the drug, the only consideration is the quantity.  So that is purely a question of statutory construction?

MR CARTER:   Yes, that aspect is a question of statutory construction.  Just so I can underline that, your Honour, if your Honour goes to Pidoto under the “Summary of conclusions”, at the beginning after framing the questions, their Honours write at the top of 271:

In our view, the first question should be answered in the negative.  As a matter of statutory construction, the harmfulness of the drug is irrelevant to the exercise of the sentencing discretion.

KIRBY J:   Whilst that principle stands, sentencing judges in Victoria are bound to have no regard to or perhaps even to admit evidence of the relevant harm of particular drugs or differential harm of particular drugs.  That stands in the way in this State of any consideration of that issue.

MR CARTER:   That is the position, your Honour, and so that we are clear, we seek to win that point on appeal and have the matter remitted back to the Court of Appeal so that the question that did not get litigated because of Pidoto can be argued.

KIRBY J:   Just tell me, Justice Callaway’s dissenting opinion was founded in Ibbs, was it not, that when Parliament fix maxima, they are not excluding consideration of the relevant evil of particular conduct within that maximum penalty.

MR CARTER:   Yes, and your Honours will see in our written submissions that we, with respect, do not accept the majority’s contention in Pidoto that the principle is relevantly distinguishable.

KIRBY J:   Why did his Honour say, “I do not go the whole way”?  His Honour really was not going any of the way, was he, but he did agree in the orders of the ‑ ‑ ‑

MR CARTER:   Can I make two observations about that, your Honour, obviously based on what appears on the face of the judgement?  One is that his Honour at paragraph 95 correctly identifies the dicta in Poon, which had not been identified by the majority despite referring to the cases containing a similar analysis.  The second is that his Honour was clearly concerned by what appears in paragraph 96, the paragraph beginning “A reasoned dissent”.  He was concerned, as he was in the minority, that the judgment be published given that this was to become the law of Victoria.  I cannot take that aspect any further, but what we do say ‑ ‑ ‑

KIRBY J:   One of the judges in this – I think it might have been the actual sentencing judge – said that the majority of cases coming for sentence in courts are in some way related to drugs.  Would that be an exaggeration or not?  I mean, one would think, there are a lot of thefts and all sorts of other offences, but it is a big area of sentencing.

MR CARTER:   Those comments are frequently made on my learned friend and mine’s analysis in sentencing for crimes for violence, for example, and in sentencing for crimes of dishonesty.  Could I make one further point?

KIRBY J:   But many sentencing of drug offenders would be State sentences.  Does the Pidoto principle apply to State sentences for drug offences as well?

MR CARTER:   Your Honour, Pidoto dealt with the Victorian legislation.  What has happened by the judgment below is that it has been transported without qualification into the Commonwealth regime, it also having a quantity‑based ‑ ‑ ‑

KIRBY J:   That introduces the question of the disparity in the approaches of different Courts of Appeal in the country.  Has any other Court of Appeal considered, since Pidoto, the decision of the Victorian court because it is a strong opinion with Justices Buchanan, Vincent and Eames and the President.  So have other courts considered the Victorian decision, or not?

MR CARTER:   Not that we have been able to find, your Honour, no.  It is a strong decision, your Honour, but it is one that on analysis is not supported by authority from other intermediate courts when the distinction I made in answer to your Honour Justice Hayne’s question is borne in mind.  One thing to say little weight, another thing to catapult to say irrelevant consideration, no judicial notice, no capacity to lead expert evidence.  In Victoria itself, with respect, your Honours, in the matter of D’Aloia ‑ ‑ ‑

HAYNE J:   The difficulty I have with the proposition is knowing what you do with the information.  Let it be assumed that the trial judge is entitled to, even is required to, make some comparison between relative harms, a task, I would add, I think, of immense difficultly, but what does the sentencing judge do with it?  Heroin is worse than MDMA or vice versa, whichever way you come out.  What is the next step you take?

MR CARTER:   Can I try to endeavour relate this with the ultimate objective of this case.  On judicial notice, on the existing materials which will include cases from other jurisdictions, the court finds that there is not as much material indicating harm arising from the use of ecstasy and so a lesser sentence is imposed than if the sentence had been heroin. 

HAYNE J:   But in this case all the judge had was the comparative tables with other ecstasy sentencing and I can understand that if you are in charge of 10 kilograms rather than 20 kilograms, that goes to sentence.  But what do you do with this information that you say you may take account of?

MR CARTER:   You take account of it as a factor in the instinctive synthesis, as it has been described.  The court below in subsequent decisions, it is fair to say, I think, your Honours, is not comfortable with Pidoto & O’Dea.  Behind tab 11 is a decision of his Honour Justice Nettle in the matter of D’Aloia where at page 4 in dealing with a complaint about the way the judge had dealt with cannabis, his Honour referred to the fact that there had been an attempt to confine Pidoto to relative harm, that he accepted on analysis that was not the case.  Your Honours will see up at paragraph 12, “Apart from very recent authority, I should be inclined to reject that contention”.  That was a contention that the judge had impermissible regard to harm. 

Skipping over the passages to page 6 at paragraph 19, “As a court of three, I consider that we are bound by Pidoto and O’Dea and Yacoub to hold that the judge thereby erred”.  That, with respect, his Honour Justice Nettle is – it is another way of saying if it were not a bench of five he would not have followed because he regarded it as flying in the face of the orthodoxy.  Similar comments are made later in respect of ecstasy.  I have not answered your Honour Justice Crennan’s question so far as it related to vehicle.  Nine years imprisonment for a person dealt with on the basis of possession, notwithstanding the magnitude of the quantity, is a very substantial sentence. 

The second matter is that to refuse special leave on that basis, in our submission, the Court would really need to be saying that once the issue is

litigated in the intermediate court once we win the appeal, it could not make any difference.  In our respectful submission, that is not a conclusion that the Court could come to.  The third matter in terms of vehicle, and that it is not the proposition on which we rely, but it does arise logically, is that the point is of sufficient importance that it ought to be dealt with sooner rather than later. 

So the question of the appropriate vehicle and the interests of justice is not just the question of this case, although we certainly contend that in the end nine years for a foreign national, and I do not trouble the Court with the personal circumstances now, but there were matters to be said in mitigation.  We say that in the end, if we win the appeal and the matter is remitted and we win – there is two steps, of course, in all of that – there is a capacity to receive an amelioration of the gaol sentence.  I am not sure if I can assist your Honours further.  It is really covered in the written submissions ‑ ‑ ‑

KIRBY J:   Well, you have run out of time.

MR CARTER:   I see the light is on, your Honours.

KIRBY J:   That was very accurate timing, Mr Carter.  You just reached the very end and then on came the red light.

MR CARTER:   We rely on our written submissions, your Honours.

KIRBY J:   Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, the argument in this case is not about harm full stop.  It is about relative harm.  My friend’s argument is based on the proposition that the statement complained of in the sentencing remarks in this instance are wrong and they are wrong because, as a matter of fact, MDMA or ecstasy is a less harmful drug than heroin.  It follows that your Honour Justice Hayne asked the question what does one take from my friend’s argument.  My friend’s argument ultimately is on that point alone, namely, MDMA is, he says as a matter of fact, less serious than heroin, on that alone the sentence should be reduced. 

In my submission, that is not an appropriate approach, in particular, when one considers this case as a vehicle, the sentence of nine years my friend suggests is a substantial one.  I think, with respect, it depends on what State one is in.  For Commonwealth offences there is a summary in the case of Kevenaar, which I believe is in my friend’s list of cases.

KIRBY J:   Yes.  What paragraph?

MS ABRAHAM:   There is a summary beginning at ‑ ‑ ‑

KIRBY J:   Is it paragraph 9 on page 175?

MS ABRAHAM:   Sorry.  I do not have the application book.  It is paragraph 82 of the judgment itself.

KIRBY J:   I am sorry, the numbers are cut off.

HAYNE J:   We have got bits of Kevenaar, not all of it.

KIRBY J:   I do not think we have 82.

MS ABRAHAM:   Sorry.  I did not realise my friend’s ‑ ‑ ‑

KIRBY J:   Anyway, you tell us what your proposition is.

MS ABRAHAM:   Your Honour, there is a summary of decisions in New South Wales of cases involving less than two kilograms of MDMA and, in the Crown’s submission, the sentences imposed in those circumstances are sentences – in pre‑section 16G repeal – in some instances are more serious or more severe than this sentence where one is dealing with nearly nine kilograms and in the substantial commercial quantity they go in the lower ‑ ‑ ‑

KIRBY J:   Yes, but the point being put to us is that by reason of Pidoto, as was understood by the Court of Appeal of Victoria, they have come to a conclusion that cuts across the conventional understanding that is observed in respect of a federal offence elsewhere in this nation and that whilst that stands it stands as a barrier to argument and the reception of evidence that deals with the differential harm that drugs can cause.  The principle in Ibbs is such a fundamental principle, has been around for such a long while, that I must say when I read when Justice Callaway’s reasons, I thought there was a lot of wisdom in what his Honour said.  So this is the issue of general principle that is advanced and basically it is an issue of federal law.

MS ABRAHAM:   Certainly.  I will address your Honour in a moment on whether that in fact is the national approach, but leave that to one side just for a moment, it, with respect, still must be an appropriate vehicle.  If this goes back to the Court of Criminal Appeal, what evidence is there before the Court of Criminal Appeal that MDMA is a less harmful drug than heroin?

KIRBY J:   Presumably they then, without the benefit of evidence in this case, call for submissions and the submissions would take them to the differential sentencing statistics of different States which one would think is a very proper thing to be taking into account in sentencing a person for a federal crime anyway.

MS ABRAHAM:   Your Honour, can I indicate that in relation to New South Wales, since Poon – now, accepting the paragraph – I think it is 45 in Poon from his Honour Justice Hulme – there is said to be a qualification to the approach.  The decisions since then, Dang, Neale, Z and a list of others in our submissions, in my submission, do not apply any qualification.  What they say is that it is in effect wrong to say, for example, ecstasy is a mid‑range drug and therefore one would necessarily receive a lighter sentence for that.

KIRBY J:   Has any other State of the Commonwealth adopted the Pidoto view?

MS ABRAHAM:   New South Wales, as I have said, in relation to relative harm.  Western Australia has followed ‑ ‑ ‑

KIRBY J:   No, but as a matter of legal principle, because the foundation of the Victorian Court of Appeal decision is that look at the statute, look at the structure, look at the options that were available to the Federal Parliament and it has elected for a quantity‑based approach and that is it.  You cannot bring into account other issues of relative harm.

MS ABRAHAM:   In my submission, in New South Wales that is the consequence of the decision in Poon as it has been interpreted.  The passage in our written submissions in relation to Dang, in my submission, is just one example of cases since Poon where they have said in relation to ecstasy, for example, that ‑ ‑ ‑

KIRBY J:   Have they done it on the basis of legal analysis, because that is ‑ ‑ ‑

MS ABRAHAM:   Yes, the structure of the legislation.

KIRBY J:   But on the same basis that because Federal Parliament has stated maxima by reference to quantum, you cannot take into account.  It is impermissible.  It is not that it is factually inaccurate, but it is impermissible.

MS ABRAHAM:   Your Honour, the decisions since that I have referred to, Dang, Z, Neale and the like, simply are the proposition that since Poon, it is inappropriate or wrong to say, for example, ecstasy is less serious.  Those cases do not go into a huge analysis.  There is an analysis in Poon itself which identifies that because of the statutory structure where one has commercial quantities nominated – there are different commercial quantities and they are listed in Poon – because they have life imprisonment, Parliament has not distinguished between those offences, obviously subject to the amount.

KIRBY J:   Parliament has fixed a maximum.  It is sort of fundamental, is it not, that Parliament fixes the maximum but it is still for the court to take into account matters relevant to the particular offender and relevant to the particular offence?

MS ABRAHAM:   Absolutely.  In my submission, Pidoto does not cut across that.  In fact, quite to the contrary.  There is a paragraph in Pidoto that says exactly that, that the ultimate question is not whether one drug is more or less serious than the other.  It is at paragraph 62:

Ultimately, the question to be considered is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed for dealing in the material involved.  Of course, not all examples of trafficking are equally serious and it is obvious that a discrimination between offences and offenders is required, based upon a wide range of considerations, in order to ensure that the sentences ‑ ‑ ‑

KIRBY J:   Tell me if this consideration, which is in my mind and it may be irrelevant, is irrelevant or relevant?  It seems to me, at least from general knowledge and reading discussion of drug offences, that, if I can put it this way, heroin tends to reach out to a different category of user, that ecstasy as a so‑called party drug, although a very serious and bad drug, tends to reach out to a different category of person in the community and that that is therefore that it is not really appropriate to read the federal statute or State statute as imposing a weight only approach as the first step to the punishment of persons for this sort of offence?

MS ABRAHAM:   In my submission, that would be an irrelevant consideration and for this reason.  The legislation, the Customs Act, and it is now reflected in the Code, has not always had trafficable and commercial.  Trafficable limits were set, I think, in the early 1970s.  In 1979 a commercial category was established, only for about half a dozen drugs, not MDMA, heroin, cocaine and the like.  Up to then the maximum penalty was 25 years for a marketable quantity of MDMA.  In 1990 MDMA received a commercial quantity limit which still stands with the maximum being life imprisonment.  In my submission, part of the problem with what your Honour has put to me is illustrated in Pidoto when the court says, how does one assess harm generally?  One assumes these drugs, given the maximum penalty, are obviously very serious drugs.

KIRBY J:   I suppose behind my question is that, can one take judicial notice of the fact that heroin sucks its victims into a particular subculture which is very difficult to extract from, whereas the so‑called party drugs or ecstasy, on the sort of general knowledge, tends to attract a very large range of people who otherwise go about their lives in an ordinary way?

MS ABRAHAM:   But, with respect, the issue is, does one determine harmfulness simply by the sorts of matters your Honour is saying?  What about, for example, is it harm to the particular person, is it harm that that particular person on the drug might do to others?  For example, does one take into account what one knows now about ice, which is crystal methylamphetamine?  Obviously the amphetamine family, and it is the amphetamine family of drugs that is said to traditionally be the mid‑range drugs, I think no one can be in any doubt ‑ ‑ ‑

KIRBY J:   The problem with Pidoto is it really puts a big barrier against any consideration of these matters and that is the question which is occurring to me as a special leave question.

MS ABRAHAM:   But, your Honour, what Pidoto basically does is say obviously you take into account all these other factors, but a judge is not to take into account their own perceived views.  It is a question of fact what the harm generally is.  If one judge decides, “Look, I know a lot about ecstasy, I think this is really serious”, then they might take that into account.  But if another judge says, “Well, I’ve had cases about ecstasy.  I do not think this is very serious at all, even though Parliament has said that it only takes a small amount to be a commercial quantity and the maximum is life, then regardless of that I personally do not consider it to be as harmful as other drugs.  I am therefore going to give a lesser sentence”.  That is the ‑ ‑ ‑

HAYNE J:   Can I just understand a practical matter.  If I go to the Schedule, do I read it correctly as saying that a commercial quantity of heroin is 1.5 kilograms, but a commercial quantity of MDMA is half a kilo?

MS ABRAHAM:   Yes.  Cocaine, I think, is two kilos.  There are other drugs under the new legislation which are ‑ ‑ ‑

HAYNE J:   How does one assess relative harm of a drug in a statutory context provided by those weights as tipping you from one section to another section?

MS ABRAHAM:   That is the respondent’s submission.  Given that that is how the legislation is set up as opposed to a harm‑based legislation, for example, the UK and New Zealand where they say class A drug, class B drug and class C drug, it falls into these levels of harm, that is not what has been chosen in this instance.  So, in my submission, for an individual judge to impose their perceived view of the harmfulness of a drug, the only way it can be of any relevance, with all due respect to my friend, of its comparison to another drug, in my submission, is then to superimpose a personal view.  In some instances it may well be ‑ ‑ ‑

KIRBY J:   So you really are supporting the Pidoto principle?  You say it is a correct principle?

MS ABRAHAM:   In terms of relativity, yes.

KIRBY J:   But the problem is that, as the Court of Appeal of Victoria and in the joint reasons recognised, “it cuts across conventional understanding” and it affects a very large number of people who are being sentenced.  They are people in this country before courts.  Given the matters on which we do grant special leave, why is this not a matter of some importance?

MS ABRAHAM:   Your Honour, I can indicate that clearly this position generally about relative harm is the approach in New South Wales.  The Crown would put material before the Court not about relative harm but in the Dang, Z line, but I can indicate it in fairness, Western Australia takes the same approach.  Other States have not.  I cannot find any decision in South Australia about a Commonwealth matter where this has been applied.  I must accept there are not many importations in South Australia that reach the Court of Criminal Appeal.  They sentence under their State legislation on a harm‑based regime, although I can indicate that in recent Court of Criminal Appeal decisions there is repeated comments by the court saying, “We need some help.  Clearly what we used to think are mid‑range drugs are not mid‑range drugs.  Bring us some evidence”.

KIRBY J:   If this Court endorsed the Pidoto principle, we would be giving the help and it would apply throughout the nation and there would be no doubt about the matter.  If, on the other hand, we went back to what was the conventional thinking and said, “Well, this is just maxima, this is Ibbs, you can make argument, you can introduction evidence, then we have that guidance of courts throughout the nation on a federal crime and we have you in the case and Mr Carter.  We have very good counsel to argue the matter.  You have had a dream run lately, Ms Abraham.  We have not been calling on you on special leave and here you are and this is an interesting point, so why should we not bring this up?  It affects a lot of people.  It is a big sentencing question.

MS ABRAHAM:   I accept it is a Commonwealth matter and I accept that not all States have clearly yet approached the matter in this way and it may be because it has not been – I cannot see that it has been argued in some States that this is the appropriate approach.  The only basis, as I have indicated earlier, is that a sentence of nine years for a substantial commercial quantity when there is no evidence, in my submission, is a very moderate sentence if not more a sentence and by comparison to other States and particularly New South Wales ‑ ‑ ‑

KIRBY J:   You say nine years is a very moderate sentence?

MS ABRAHAM:   For nine kilograms ‑ ‑ ‑

HAYNE J:   Nine kilograms pure.

MS ABRAHAM:    Pure, yes.  If one is talking about, for example – my friends complain about comparisons – cocaine and heroin in Wong, whilst the decision was that obviously you cannot have guideline judgments, if one looks at the figures there as a summary of what one was getting for cocaine for example, one is talking about a substantially higher level than what one is dealing with here.  In my submission, not a good vehicle because one does not have the evidence here.  I do not know whether I can take it any ‑ ‑ ‑

KIRBY J:   Would you have any idea of the number of cases involving so‑called ecstasy in federal and State offences that go for sentence every year in this country?

MS ABRAHAM:   I do not.  Clearly it has become much more popular of recent years.  There is obviously a substantial ‑ ‑ ‑

KIRBY J:   Are we talking in terms of hundreds of cases?

MS ABRAHAM:   Federally it is obviously dealt with frequently.  In this State, apparently, 20 to 30 a year.  In New South Wales much more.  The other States are not States that necessarily have importations, so there are much fewer cases, generally, in the other States, which is probably why the issue has not arisen in other States from a Commonwealth point of view.

KIRBY J:   Well, that is one possibility.  The other possibility is that until it comes here people do not live in the jurisprudence of another State and then it comes up here and we have to look at it across the board.  There does not seem to be another State which has done the analysis that the joint reasons in Pidoto have done from a legal point of view?

MS ABRAHAM:   In my submission, Poon has done that, albeit having that passage at paragraph 45 which is said to be a qualification ‑ ‑ ‑

KIRBY J:   Well, it seems very clear:

Nothing I have said is intended to suggest that the harmfulness of particular drugs as known to the courts through evidence or matters of which the Court may take judicial notice is not a relevant consideration –

That denies Pidoto and that is Justice Hulme in Poon at page 73.

MS ABRAHAM:   Except this, with respect, where does one then go with that, because, paragraph 46 he says, in effect, if there is a difference between the perceived view and the statute, then, in effect, the statute is what carries the day in terms of the harm aspect of it and so it is hard to see at a practical level what that could mean, which is probably why the later cases of Dang, Z, Neale, et cetera, have simply said, citing Poon, Neale thereafter, that it is wrong to say MDMA is less serious than heroin and cocaine and the like.

KIRBY J:   Not less serious.  They cannot say that in the face of the statute, but less harmful to the individual.

MS ABRAHAM:   The decisions, in my submission, are dealing with the aspect of harm.

KIRBY J:   Well, you are supporting Pidoto and that is the issue.  Is that the correct statutory interpretation and does it arise conveniently in this case?

MS ABRAHAM:   Yes.

KIRBY J:   Yes.  Thank you, Ms Abraham.  Yes, Mr Carter.  You may bring this up here and find that Pidoto is endorsed and that applies throughout the whole nation.

MR CARTER:   If that is so, your Honour, then the High Court, like the court below, will be overturning decades of sentencing practice.  Your Honour Justice Kirby has referred a couple of times to the section of the judgment below under the heading “An important change, but not entirely novel”.  Can I just take your Honours to one of the authorities referred to by the Court below there to demonstrate that their analysis is wrong and that the way in which my learned friend relies upon authorities in other jurisdictions is wrong.  At paragraph 66, in the joint reasons the Court states, “The reasoning on which our conclusion depends is not, however, entirely novel” and reference is made to the judgment of his Honour Justice Tadgell  in Zeccola which set out the history of the provisions.  Turning over to the top of page 284, after extracting a section from Tait, his Honour Justice Tadgell, in the non‑emphasised portion of the quote, stated:

I do not take that passage to indicate that the nature of the narcotic substance is always irrelevant to the level of sentence.  The courts have in appropriate cases differentiated between so‑called hard drugs of addiction and those that some consider to be more benign, or at least rather less immediately deleterious . . . For these reasons I think the distinction which a court is entitled to draw for purposes of sentence between one drug and another . . . is limited.

Again I come back to the distinction that was made which, with respect, is blurred by my learned friend’s submission.  It is the distinction between limited regard – Parliament has entered the territory to a significant degree – and forbidden territory for the Courts by reason of judicial notice and evidence.  With respect, the second point by way of reply, it is not a matter of Justice Hulme’s statement being referred to as a qualification, it is a deliberate statement from an intermediate court justice which found support from the two other members on the Bench and which has not been overruled.

My learned friend refers, without taking your Honours to the passages, to some of the post‑Poon authorities.  Kevenaar behind tab 9 is a decision of his Honour Justice Hulme himself with whom Justices Simpson and Howie agree.  It is only the extract that is provided because it is the principle that is important for the application.  At the bottom of page 175 his Honour is in fact setting out statistics for heroin and cocaine sentences.  Then at page 176, in paragraph 112, his Honour states:

That was to be expected so long as MDMA was regarded as a “mid‑range” drug, not as deleterious as heroin or cocaine . . . any difference in approach between the drugs was to be determined  primarily by reference to the statutory provisions –

There is no retreat, there is no pulling back from the fact that at paragraph 45 his Honour has fallen short of what the radical move is of Pidoto of saying this is forbidden territory for Courts.  So, with respect, my learned friend is wrong to say that the post‑Poon authorities do not follow paragraph 45.  The Court below, who had all of these authorities specifically drawn to their attention by my learned friend Mr Boyce there set out at page 42 of the application book, did no justice to the argument whatsoever in merely cutting into the judgment, the slab of the Commonwealth submissions, that said that the Pidoto position was similar or supported by other intermediate States.

HAYNE J:   As to that, at application book page 53, paragraph 21 his Honour Justice Vincent concludes the paragraph by saying, “In any event” et cetera, “his” – that is the trial judge’s – “personal perceptions

cannot be seen to have led to the imposition of an inappropriate sentence”.  Could you succeed in appeal to this Court without unpicking that?

MR CARTER:   Yes.

HAYNE J:   Why?

MR CARTER:   Because on the appeal to the High Court we seek to overturn the statutory construction argument and then have it remitted to the Court of Appeal so that we can litigate the underlying controversy raised by the initial ground of the appeal and, if necessary, call evidence once the sentencing discretion is re‑opened.  We do not seek to bring it up to the High Court to have an inquiry into illicit drugs.

KIRBY J:   Your submission, as I understand it, is that because Pidoto stood in the way and because it was binding on the second Court of Appeal, that, despite that comment, the second Court of Appeal did not proceed uncontaminated by Pidoto, if Pidoto is wrong, to exercise its full sentencing review but simply effectively applied Pidoto and said that his Honour’s perception did not affect the conclusion concerned?

MR CARTER:   That is correct.  That is so, your Honour.

KIRBY J:   It is not the type of review of a sentence that one sees in the other decisions that you have taken us to where there is a referral to the so‑called mid‑range sentences for this particular drug in other cases, simply a general statement by Justice Vincent?

MR CARTER:   Your Honour, as I say, the written submissions for the  reason that they were not done justice in the judgment below, with respect, were provided to the court at pages 42 and 43.

KIRBY J:   Certainly, if we were to grant special leave, the High Court would not be sentencing your client.  The High Court would simply, if you got up on your point on Pidoto, would be to send it back to the Court of Appeal with correction of Pidoto and say now consider the appeal.  They may ultimately come to the same view as Justice Vincent expressed in 21.

MR CARTER:   That is precisely what our draft notice of appeal seeks, your Honour.  If the Court pleases.

KIRBY J:   Yes, very well.  The red light is on.  The Court will adjourn briefly to consider the disposition of this matter.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

KIRBY J:   The Court grants special leave to appeal in this application.  I assume that it would be a one‑day or less case and the parties should ensure that they have available to the Court all available authorities from all jurisdictions of the Commonwealth.

AT 11.24 AM THE MATTER WAS CONCLUDED