R v Pidoto and O'Dea

SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 50 of 2005
No. 63 of 2005

THE QUEEN

SHANE MICHAEL PIDOTO

and

GLENN ANTHONY O’DEA

---

JUDGES:	MAXWELL, P., CALLAWAY, BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2006
DATE OF ORDERS:	8 June 2006
DATE OF REASONS:	8 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 185	2^nd Revision 21 September 2006

---

CRIMINAL LAW – Sentencing – Drugs – Trafficking in a commercial quantity of a drug of dependence – Ecstasy – Whether harmfulness of drug in question a relevant sentencing consideration – Whether sentencing judge can evaluate relative harmfulness of a drug of dependence – Sentencing hierarchy in statutory scheme based only on quantity of drug trafficked – Harmfulness of drug an irrelevant consideration – Appeal allowed in part – Drugs, Poisons and Controlled Substances Act 1981 s.71AA, Schedule 11.

CRIMINAL LAW – Application to be heard as amicus curiae.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant Pidoto	Mr P.G. Priest, Q.C. with Mr. T.E. Wraight	Camerons
For the Appellant O’Dea	Mr D.A. Dann	Balmer & Associates
For Fitzroy Legal Service (amicus curiae)	Mr P.F. Tehan, Q.C. with Mr J.P. Wheelahan	Holding Redlich

MAXWELL, P.,
BUCHANAN, J.A.,
VINCENT, J.A.,
EAMES, J.A.:

These appeals raise an issue of general importance about sentencing for offences of trafficking in a drug of dependence, contrary to the provisions of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the DPCS Act”). Put shortly, the issue is as follows: is it relevant for the sentencing Judge to consider the harm(s) associated with the drug the subject of the trafficking charge?

There are two related questions which need to be addressed, as follows:

A.When a person is being sentenced for the offence of trafficking in a drug of dependence, is it relevant for the Court to consider –

(i)the nature and extent of the harm which the particular drug causes, both directly to users of the drug and indirectly to the community as a whole;and

(ii)whether the particular drug of dependence is, by those measures, more or less harmful than another drug of dependence?

B.If so, on what information is the Court entitled to act in assessing the harmfulness of the particular drug?

Summary of conclusions

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. The second question accordingly does not arise.

(When we refer to “the harmfulness of the drug”, we mean the general characteristics of the drug in question, not the harm which may be proved to have been caused by the particular offender’s trafficking in that drug.)

It is clear, we think, that Parliament did not intend the sentencing court to make any judgment about the (relative) harmfulness of the drug in question. This conclusion is based both on what the DPCS Act says, and on what it does not say.

Under the DPCS Act, trafficking offences are classified by quantity. The maximum penalties are set accordingly. Had Parliament intended to adopt a harm-based classification of trafficking offences, a very different legislative scheme would have been required, along the lines of the scheme then (and now) in force in the United Kingdom and New Zealand.

Without a comprehensive harm-based classification of drugs, of the kind established in those other jurisdictions, no individual judge or magistrate can evaluate the relative harmfulness of any particular drug, however common its use. Such assessments require specialist expertise, involve detailed investigation and must be based on extensive information on a range of issues. Parliament cannot have intended that courts should even attempt the task.

Our detailed reasons are as follows.

Is the harmfulness of the drug a relevant consideration?

On the threshold question, we share the view expressed by Winneke P (with whom Phillips JA and O’Bryan AJA agreed) in R v Casey,[1] that it was –

“non-productive in sentencing offenders to speak of graduations of seriousness depending upon the substance involved. Courts should take their cue from the legislature and the penalties prescribed by statute rather than import into the sentencing discretion individual views as to the perniciousness of the substance. In that direction will ultimately lie inconsistency of sentences.”[2]

[1][2002] VSCA 117.

[2]At [27]. Winneke P cited with approval what had been said by Wood CJ at CL in R v Bimahendali (1999) 109 A Crim R 355 at 362.

The present case affords an opportunity to look more closely at the legislative “cue” which the DPCS Act provides. Section 71AA makes it an offence to traffick in –

“a quantity of a drug of dependence ... that is not less than the commercial quantity applicable to the drug of dependence...”

The offence so defined carries a maximum custodial sentence of 25 years’ imprisonment.

The offence created by s.71AA may be contrasted with those created, respectively, by s.71 and s.71AC. Under s.71, it is an offence to traffick –

“in a quantity of a drug of dependence ... that is not less than the large commercial quantity applicable to that drug of dependence ...”.

The maximum penalty is life imprisonment plus a fine of not more than 5,000 penalty units. Under s.71AC, it is an offence to traffick “in a drug of dependence”, that is, in any quantity smaller than a commercial quantity. The maximum custodial penalty for this offence is 15 years’ imprisonment.

The common element in each of these offences is that the drug in question is a drug of dependence. In structuring these trafficking offence provisions, Parliament has adopted a hierarchy of seriousness defined by – and only by – the quantity of the drug of dependence which has been trafficked. In Tsolacos,[3] Winneke P (with whom Callaway JA and Crockett AJA agreed) said:

“For the purposes of identifying the gravity of the offence and thus of ascertaining the appropriate sentence, the legislation places emphasis on quantities of drugs trafficked and not on values, ...”[4]

[3](1995) 81 A Crim R 434.

[4]At 436.

The amount of a drug of dependence which will constitute a commercial quantity for the purposes of s.71AA varies significantly from one drug to the next. This appears from Parts 2 and 3 of Schedule 11 to the DPCS Act. Thus, a commercial quantity of amphetamine is 250 grams, whereas a commercial quantity of anabolic steroids is five kilograms.

The offence of trafficking in not less than the commercial quantity of a drug of dependence was first introduced into the DPCS Act by the 1983 amending Act.[5] Introducing the amendments, the then Minister of Health acknowledged that there were “big and small traffickers” and that, in order to take “a more rational approach” to sentencing, the legislation would –
[5]Drugs Poisons & Controlled Substances (Amendment) Act 1983 s.7(1).

“make a quantitative differentiation between the two.”[6]

The Minister pointed out that certain sentencing options, such as probation orders and community service orders, would be foreclosed where a person was convicted of trafficking in a commercial quantity of a drug. The sentencing regime would apply uniformly, whichever drug was trafficked. Specifically –

“Any person who trafficks in a commercial quantity of cannabis, that is, 1000 kilograms or more, will be liable to the same penalty as the commercial trafficker in any other drug of dependence – 25 years and $250,000.”[7]

[6]Victoria, Parliamentary Debates, Legislative Assembly, 16 June 1983, 5297 (Mr Roper, Minister of Health).

[7]ibid at 5300.

When the amounts constituting the commercial quantity of certain drugs of dependence were lowered by the Sentencing and Other Acts (Amendment) Act1997 (Vic), the then Attorney-General said:

“The offence of trafficking in a commercial quantity of a drug of dependence will continue to attract a maximum penalty of 25 years. The offence is intended to apply to the sorts of drug traffickers who ply their trade in expectation of enormous profits.
The quantities of drugs comprising those commercial quantities have been reviewed and lowered to reflect more realistic dollar values amounts of between $100,000 to $250,000. This should ensure that trafficking ventures which are truly commercial in nature attract the higher maximum penalty …
It was considered that the quantities currently set out in schedule 11 of the Act are at such high levels that large scale drug ventures which are blatantly commercial in nature are not being caught by the Victorian provisions.
Because the motivation for trafficking drugs is primarily economic profit, the levels set for the different drugs in schedule 11 will reflect a consistent monetary value or number of doses of a drug. The bill reduces quantities to a level that more realistically reflects the commercial nature of criminal ventures.”[8]

[8]Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873, 876 (Mrs Wade, Attorney-General) (emphasis added).

The express purpose of the quantification in Schedule 11 was thus to establish, in relation to each nominated drug of dependence, the quantity of that drug which would justify characterising the trafficking as “truly commercial in nature”. What brings an offence within s.71AA is the quantity of the drug trafficked, not any property of the drug in question (other than that it must be a drug of dependence and one for which a commercial quantity has been specified).

That this was the legislative approach was confirmed by the present Attorney-General in 2001, when he introduced what became the Drugs, Poisons and Controlled Substances (Amendment) Act 2001 (Vic).[9] That Act created new offences of trafficking in a large commercial quantity of a drug of dependence (s.71), and cultivating a large commercial quantity of a narcotic plant (being a drug of dependence) (s.72). In each case, the new offence was punishable by a maximum penalty of life imprisonment and a fine of up to $500,000.
[9]Victoria, Parliamentary Debates, Legislative Assembly, 16 August 2001, 28-9 (Mr Hulls, Attorney-General).

Schedule 11 to the DPCS Act lists more than 200 drugs of dependence. For more than half of the drugs listed, the Schedule specifies the quantity of the drug which constitutes a commercial quantity. (By contrast, there are only ten drugs of dependence for which a large commercial quantity is specified.) The term “drug of dependence” means, as a matter of ordinary English, a drug the use of which carries the risk that the user will become dependent on the drug. Hence, the mischief to which s.71AA is directed is dealing for profit in a drug which is likely to create dependency.

It would have been possible for Parliament in enacting (or later amending) the DPCS Act to create a hierarchy of trafficking offences based not on the quantity of the drug trafficked but on the harmfulness of the drug. Parliament might, for example, have adopted a three-level hierarchy of the kind which was in 1981, and is still, in force in both the United Kingdom and New Zealand.[10] (Some Australian courts have developed a hierarchy of their own, with drugs of dependence being classified as “high”, “medium” or “low” according to the nature and extent of the harm caused.[11]) Had such a legislative scheme been implemented, the gradation in maximum penalties would then have been fixed according to harmfulness, not quantity.
[10]See [25]-[36] below.
[11]See eg. Darwell v R (1997) 94 A Crim R 35 at 40; Budiman (1998) 102 A Crim R 411 at 416, and the cases there cited.

The DPCS Act employed just such a harm-based hierarchy in relation to poisons and controlled substances. There are no fewer than nine separate schedules of poisons, and a further category of “regulated poisons”. The provisions of the Act regulate the manufacture, use, sale and supply of poisons. How those provisions apply to a particular poison depends on the Schedule in which the particular poison is listed. The more powerful/dangerous the poison, the more restrictive the applicable regulations.

But no such harm-based hierarchy was adopted for the purposes of classifying trafficking offences. Were such a ranking of drugs of dependence to be attempted, the obvious starting-point would be the nature and extent of the dependency created by each drug. Relevant measures would include: the likelihood of a user becoming dependent; the speed with which such dependency typically becomes established; and the degree of difficulty involved in breaking that dependency. Across the very large number of drugs of dependence specified in Schedule 11, there would no doubt be considerable variation in these characteristics.

Another factor which would affect such a ranking of drugs would be the physical and psychological harm caused to the user of each drug. Once again, there would be considerable variation from one drug of dependence to another. Moreover, any comparative evaluation of harmfulness on this basis will only be as good as the scientific information available at the time it is made. To remain valid, these harm assessments would need to be regularly reviewed and updated in the light of new research.

A third factor relevant to the ranking would be the social effects of dependency on the particular drug: the effect of dependency on the user’s relationships with others; the propensity of users to engage in acts of violence while under the influence of the drug; and the likelihood of users having to engage in criminal activity in order to support the drug habit.

Reference to these different dimensions of harmfulness underlines how different the trafficking provisions in the DPCS Act would have needed to be if Parliament had intended to rank – and punish – trafficking offences by reference to the relative harmfulness of the drug trafficked. Crucially for present purposes, that is not the ranking which the Act adopts for these offences. By contrast, the offence of possessing for personal use a small quantity of cannabis has been viewed by the legislature as warranting a lower maximum penalty, evidently because of an assessment that cannabis is less harmful than other drugs: DPCS Act s.73(1)(a). (We discuss cannabis at [52]-[57] below).

If the seriousness of a drug trafficking offence is to be judged by reference to the harmfulness of the drug in question, that will involve a significant policy change, of the kind which the legislature alone can make. Just how significant that change would be is illustrated by the equivalent legislation in the United Kingdom and New Zealand. Not only do those jurisdictions employ a harm-based classification of drugs, but the critical questions of classification and re-classification are – properly, in our view - the province of expert advisory committees and the Ministers they advise, not of judges and magistrates.

International comparisons: UK and New Zealand legislation

Drugs legislation in the United Kingdom provides an instructive contrast. Schedule 2 to the Misuse of Drugs Act 1971 (UK) contains a classification of drugs based on the harm they may cause, as follows:

· Class A (the most harmful) includes morphine and heroin;

· Class B (an intermediate category) includes amphetamines and barbiturates; and

· Class C (the least harmful) includes cannabis and cannabis resin, anabolic steroids, benzodiazepines and growth hormones.

Maximum penalties for the offences of possession and supply (which includes trafficking)[12] are highest for Class A drugs and lowest for Class C drugs.[13]

[12]Drug Trafficking Act 1994 (UK) s.1(1)(a).

[13]Misuse of Drugs Act 1971 (UK) Schedule 4.

Section 1 of the Misuse of Drugs Act 1971 established the Advisory Council on the Misuse of Drugs. One of the Council’s functions is to advise the Government on the appropriate classification of drugs. According to the Council, when advising on the harmfulness of a drug it takes account of the physical harm it may cause, its pleasurable effects, associated withdrawal reactions after chronic use, and the harm that misuse may bring to families and society at large.[14]
[14]The Classification of Cannabis Under the Misuse of Drugs Act 1971 (Advisory Council on the Misuse of Drugs, March 2002) [1.2]-[1.4].

In March 2002, the Advisory Council recommended the reclassification of all cannabis preparations to Class C, expressing the view that –

“the current classification of cannabis is disproportionate in relation both to its inherent toxicity, and to that of other substances (such as amphetamines) that are currently within Class B.”[15]

The Home Secretary accepted that recommendation and cannabis was reclassified to Class C.[16] In June 2006, the Council recommended the reclassification of methylamphetamine from Class B to Class A. The Home Secretary has also accepted that recommendation.[17]

[15]The report is referred to in the preceding footnote.

[16]The Advisory Council in 2005 reviewed the classification of cannabis products. In its December 2005 Report, the Council recommended that cannabis products remain within Class C. “While cannabis can, unquestionably, produce harms, these are not of the same order as those of substances within Class B. Nevertheless, the Council wishes to emphasise that cannabis is harmful.” Further consideration of the classification if cannabis under the misuse of Drugs Act 1971 (Advisory Council or the Misuse of Drugs, December 2005).

[17]See the Council’s website: type="1">

Even for an expert body like the Council, the work of classifying and reclassifying drugs is complex and often controversial. In a July 2006 report entitled “Drug classification: making a hash of it?”,[18] the House of Commons Science and Technology Committee was very critical of the Council’s performance. The Committee –

[18]HC 1031, published 31 July 2006.

“identified significant anomalies in the [Council’s] classification of individual drugs and a regrettable lack of consistency in the rationale used to make classification decisions.”[19]

Noting that the Home Secretary did not share the Council’s view that social harm associated with a drug was relevant to classification,[20] the Committee concluded that –

“a more scientifically based scale of harm would have greater credibility than the current system where the placing of drugs in particular categories is ultimately a political decision.”[21]

[19]At 3.

[20]At 15 [24].

[21]At 46 [105].

The corresponding New Zealand legislation, the Misuse of Drugs Act 1975, also adopted a harm-based classification. Section 6 of that Act prohibits a range of “dealings with controlled drugs”. Controlled drugs are classified as Class A, Class B or Class C, according to the harms respectively associated with them.

An insight into the New Zealand scheme was provided by the recent decision of the New Zealand Court of Appeal in The Queen v Arthur.[22] The Court of Appeal was there concerned with sentencing for the offence of supplying methamphetamine. Giving the judgment of the Court, Chambers J explained that, on 30 May 2003, the New Zealand Parliament had reclassified methamphetamine as a Class A controlled drug. Previously, methamphetamine had been a Class B controlled drug. The reclassification was made on the motion of the Minister of Health, who in 2002 had received advice from the Expert Advisory Committee on Drugs.
[22][2005] 3 NZLR 739.

That Committee had recommended to the Minister that methamphetamine be reclassified as a Class A controlled drug. Chambers J set out the reasons given by the Committee for that recommendation, as follows:

“●That the use and manufacture of methamphetamine in New Zealand is growing, seizures are increasing, and it has potential appeal to vulnerable populations.
●There are pronounced long-term physical and psychological adverse effects associated with methamphetamine abuse.
●There are significant risks to public health from intravenous use of methamphetamine, as well as the dangers posed by illicit clandestine laboratories.
●There are few, if any, therapeutic applications for methamphetamine.
●Methamphetamine has been linked to deaths both in New Zealand and overseas.
●There is high physical and psychological dependence potential.”[23]

[23]At [2].

As his Honour noted, the major effect of the reclassification so far as the courts were concerned was the increase in the maximum penalty. Whereas previously the importation, manufacture or supply of methamphetamine had been subject to a maximum of 14 years’ imprisonment, the new maximum was imprisonment for life.[24]
[24]At [5].

One of the obvious limitations of a harm-based classification of drugs is that it makes no provision for the courts to differentiate between trafficking offences on the basis of the quantity of the drug trafficked. In Arthur, the Court of Appeal expressed regret that the New Zealand Parliament had not -

“given greater guidance as to the level of penalty appropriate for Class A drug offending. There is a huge difference in culpability between the case of a man who gives a point of methamphetamine to his wife and the case of Mr Big heading a mammoth heroin importation or supervising a methlab with a million dollar annual turnover. Yet each in theory is liable to imprisonment for life.”[25]

[25]At [8].

The Court drew attention, by way of contrast, to the legislation in Australian States, noting that “there is an underlying concept of different maximum penalties based on the quantity of drugs involved.”[26] The Court cited the DPCS Act as one example of legislation which –

“provided guidance by specifying different maximum penalties depending upon the circumstances of supply. [The Court set out the offences which are defined by quantity, and also the offences of trafficking in, or supplying, a drug of dependence to a child.] That is helpful information for judges, as it focuses on what Parliament considers important features of the offending. For instance, it is clear that the quantity of drugs being trafficked is of fundamental importance. The age of the person supplied is also of relevance. Those may be self-evident, but it nonetheless does provide guidance to the judiciary as to Parliament’s expectations and concerns. The Victorian legislation also provides, with respect to each drug, the quantity of drug that meets the definition of ‘large commercial quantity’ and ‘commercial quantity’.”[27]

[26]At [17].

[27]At [8]-[9].

Unless and until Victoria adopts some comprehensive harm-based ranking of this kind – covering the full range of drugs of dependence and all the relevant indicia of harmfulness – it is simply not possible for an individual sentencing judge to assess the degree of harm attributable to a particular drug of dependence, less still to decide whether that degree of harm is to be regarded as an aggravating or a mitigating factor.

The Pidoto appeal provides a good example of the problem. As detailed below,[28] the sentencing judge regarded as an aggravating factor of the offence that the defendant had trafficked “in a very significant drug”. That conclusion was supported by the judge’s “opinion” – for so he described it – that ecstasy was “emerging as a very significant problem”, and by his “experience [that] on so many occasions ... really adverse behaviour [is] attributed to the use or abuse of this drug.” With respect to his Honour, we are unable to see how it could be concluded, for the purposes of sentencing, that this was “a very significant drug” unless it were possible to judge its relative significance compared to all the other drugs of dependence covered by the s.71AA offence.
[28]See [81]-[83].

An irrelevant consideration

We see no parallel between the question now under consideration and the question addressed by the High Court in Ibbs v The Queen.[29] There the High Court was dealing with an offence of sexual penetration, for which a maximum of 14 years’ imprisonment was specified. The statute itself defined “sexual penetration” as encompassing several different categories of conduct. The Court rejected the proposition that the maximum penalty was –

“prescribed as appropriate for the worst type of case falling within each of the respective categories of sexual penetration... The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any one of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.”[30]

[29](1987) 163 CLR 447.

[30]At 452.

The trafficking offence created by s.71AA is of a quite different kind. The offence is not “defined to include any of several categories of conduct”. On the contrary, it is defined by reference to a single type of conduct, that is, trafficking in a commercial quantity of a drug of dependence. As we have already noted, Parliament quite deliberately sought to establish uniformity of the offence – that is, to standardise the offence – across the range of drugs of dependence, by specifying for each drug that quantity the trafficking of which could be characterised as “truly commercial in nature”.

In short, the whole structure of the trafficking provisions, and the very precise content of the relevant columns in Schedule 11, leads inevitably to the conclusion that, other things being equal, trafficking in a commercial quantity of drug of dependence A is no more nor less serious than trafficking in a commercial quantity of drug of dependence B.[31]
[31]For a similar analysis in New South Wales, see R v Poon (2003) 56 NSWLR 284 at 295 [43] per Hulme J.

As we said earlier, the measure of seriousness which informs the gradation of trafficking penalties from life imprisonment (for trafficking in a large commercial quantity) down to 15 years’ imprisonment (for trafficking in less than a commercial quantity) is the quantity of the drug trafficked, not the harmfulness of the drug in question. Apart from that which qualifies the drug in question for membership of the class “drugs of dependence”, the characteristics of the trafficked drug are irrelevant.

The corollary of this analysis is that the larger the quantity trafficked, the more serious the offence. Take heroin for example. The commercial quantity is 250g, while the large commercial quantity is 750g. An offence under s.71AA involving the trafficking of (say) 700 grams – that is, several times the commercial quantity, and only slightly less than the large commercial quantity – should be regarded as more serious (other things being equal) than an offence involving the trafficking of 275 grams, that is, only slightly more than the commercial quantity.

But the most important conclusion to which this analysis leads is that the harmfulness of the drug is an irrelevant consideration. On the proper construction of the quantity-based trafficking provisions (s.71, s.71AA and s.71AC),[32] there is no scope for the court, in sentencing an offender for an offence created by one of those sections, to consider the (relative) harmfulness of the drug in question. That is, Parliament did not intend judges to undertake that task.
[32]Section 71AC is quantity-based where the drug in question is a drug for which a commercial quantity is specified and to which s.71AA therefore applies: see [45] below.

This does not, of course, prevent the sentencing court from taking into account evidence as to the harm caused by the particular conduct of which the offender has been convicted. The harm attributable to the conduct in question is as relevant as any other factor peculiar to the offending or the offender. What the legislation precludes, in our view, is the sentencing court bringing to bear any view, about the general tendency of the drug in question to cause harm, whether to users of it or to the community at large.

Our analysis has been based on the specification in Schedule 11 of the commercial quantity for each of 149 drugs of dependence and the large commercial quantity for each of 10 drugs of dependence. What of the 88 drugs of dependence listed in the Schedule for which no commercial quantity is specified? The offence of trafficking in one of those drugs will be a contravention of s.71AC whatever the quantity trafficked. Section 71AA has no application to dealings in those drugs.

We see no reason to think that Parliament intended any other approach to be taken in sentencing for offences of trafficking in those drugs. Parliament is no more to be taken to have contemplated harm-based sentencing in such a case – that is, where a person is convicted under s.71AC of trafficking in a drug of dependence for which no commercial quantity is specified – than in cases where a commercial quantity has been specified for the drug in question. All the considerations to which we have referred point in the opposite direction. The quantity of the drug trafficked will be a factor to be taken into account in sentencing, but it is not for the sentencing court to attempt any assessment of the harmfulness of the drug in question.

Application to other DPCS offences

By parity of reasoning, what we have said in relation to the quantity-based hierarchy of trafficking offences applies equally to the quantity-based hierarchy of offences of cultivation of narcotic plants: ss.72, 72A and 72B[33]. Narcotic plants are a sub-set of drugs of dependence for this purpose. General propositions about the relative harmfulness of one narcotic plant as against another have no place in sentencing for an offence under any of those provisions.
[33]Like s.71AC, s.72B is quantity-based where the drug in question is a drug for which a commercial quantity is specified.

There are other offences created by Part 5 of the DPCS Act which are not quantity-based. Possession offences under s.73, for example, are differentiated according to whether the person was (or was not) in possession of the drug for a purpose related to trafficking. Thus, s.71AB provides a maximum custodial penalty of 20 years for the offence of trafficking in a drug of dependence to a child (meaning a person under 18), while s.71B provides for a maximum penalty of not more than 1,000 penalty units or 15 years’ imprisonment, or both, for the offence of supplying a drug of dependence to a child (either for the use of that child or for the purposes of supply by that child to another child). Again, s.71A provides for a maximum custodial penalty of 10 years’ imprisonment for the offence of possessing a substance, material, document or equipment for use for the purposes of trafficking in a drug of dependence.

We say nothing about the approach to sentencing for offences under these latter provisions. Clearly, those provisions do not contain the same legislative “cue”, based on the weight of the drug involved,[34] as do the quantity-based provisions under discussion. The adoption of a different legislative approach in those sections does not, however, alter the conclusion we have arrived at in relation to the quantity-based offences.
[34]Or, in the case of cultivation of cannabis, the number of plants.

A practical impossibility

As suggested earlier, we think it wholly impracticable – and undesirable – for any sentencing judge to attempt to form views about the (relative) harmfulness of the particular drug of dependence the subject of the trafficking charge. This is so whether or not expert evidence is led. The practical impossibility of the task reinforces our conclusion that Parliament did not intend that it be undertaken.

The difficulties involved in a judge assessing the seriousness of trafficking in a particular drug of addiction, based upon the characteristics of the substance involved, are numerous. It is necessary to draw attention to only a few.

However experienced they may be, few judges can claim any degree of expertise concerning the social or other costs to the community, or the psychological or physical consequences, of the ingestion of even the most commonly encountered drugs. New substances and combinations of substances – concerning which little, if any, experience exists – appear with regularity.

Some substances, such as cannabis, which were widely regarded only a few years ago as not particularly harmful or potentially dangerous to the user, are now viewed with greater concern. In the South Australian case of R v Tideman[35], decided in 1976, Bray CJ described cannabis as having a “comparatively innocuous character”. Since that time, there is evidence that the tetrahydrocannabinol content of the material available in the community has increased, and it has been recognized that a range of extremely serious physical and mental consequences can be associated with cannabis-use.[36] In 2006, it might well be concluded - on a careful consideration of the empirical evidence, and the research that has been conducted since 1976 into the characteristics and effects of cannabis, both long and short-term - that cannabis can no longer be described as “comparatively innocuous”, even allowing for the comparative judgment involved.[37]
[35]R v Tideman (1976) 14 SASR 130 at 135.
[36]Even by 1993 the Court of Criminal Appeal was able to say: “The harmful effects of the use of marijuana are becoming better known...” R v Pastras (1993) 65 A Crim R 584 at 590.
[37]We note in this regard the recently-published World Drug Report of the United Nations Office on Drugs and Crime. Chapter 2 of that Report is entitled “Cannabis: Why We Should Care”. See type="1">
Of course, to the individual who experiences a psychotic response on ingesting cannabis, or the victim who is assaulted by a person acting under its influence, [38] any relative classification is entirely irrelevant. Such reactions may be less frequent, and the personal and social damage resultant from the use of the substance may be less severe, than is the case with other drugs, but there is a powerful argument that those who trade for financial advantage in a drug known to be potentially harmful should not be able to mitigate their conduct by arguing that the risks to users of that drug are statistically lower than those associated with other drugs.
[38]See eg. World Drug Report at 177-183.

Four years before the judgment of Bray CJ in Tideman, a differently- constituted Full Court in South Australia said in Beresford[39] –

“… [P]rosecutions with respect to dangerous drugs, in our view, stand altogether differently. A judge cannot begin to assess the evil or harm caused to society or to individuals by drug taking, drug handling, or drug distribution, until there are placed before him adequate details of the composition and strength of the drug in question and an authoritative and reliable description of its likely effects – long term and short term, psychological and physical. In some cases, it may be important for the judge also to be informed, in general terms, of the magnitude of the illegal operations of manufacturing or importing and supplying the dangerous drug to members of our community, and the difficulty of the control of those operations by law enforcement agencies.
Plainly, evidence upon many of these topics will not infrequently be irrelevant in the proof of the charge, but when the question of sentencing arises, it will be essential for evidence of this kind to be placed before the judge. It seems to us that it is the responsibility of the prosecution, in the first instance, to lead such evidence as is in their possession and will enable the sentencing judge to form an appreciation, not only of the prisoner’s conduct, but also of the drug with which that conduct was concerned. In many cases, the presentation of such evidence will entail the calling of an expert who can offer an up-to-date evaluation of the plethora of facts and opinions emanating from doctors, scientists and social workers month by month all over the world. It is, in our view, unsatisfactory for a judge to find himself left to perform his own research and formulate his own opinions and conclusions upon such arcane matters. What we can read in books, journals and reports about drugs is no doubt useful as background and as providing the basis for suggestions for further enquiry, but it would, in our view, be entirely wrong if those readings were to take the place of sworn expert testimony, properly presented and tested.”[40]

[39]R v Beresford (1972) 2 SASR 446.

[40]At 449-450.

In Tideman,Bray CJ referred to this decision, saying –

“We are now in a position, however, to qualify the apparent rigidity of the proposition laid down in Beresford’s case … to which I have just referred if we think fit to do so. Four years have passed since then and prosecutions for offences in connection with Indian Hemp have become regrettably frequent. I think that it is generally accepted that it is the least harmful of the drugs caught by the Narcotic and Psychotropic Drugs Act.”[41]

[41]R v Tideman (1976) 14 SASR 130 at 134.

There is room for debate about whether or not the cannabis available in 1976 was properly described as “comparatively innocuous”, or whether it was so treated because the courts and the community had only limited knowledge and appreciation of the potential deleterious consequences of its use. The difficulty we see, however, is that this characterization of the dangerousness of this drug by the learned Chief Justice appears to have been based principally on his own understanding of the experience of the courts over a four-year period in relation to the sentencing of offenders. Yet that characterization became the basis upon which, thereafter, sentencing courts were required to act.

A few years later, in R v Cronn and Bladon,[42] King CJ stated –

“The learned sentencing Judge described the drug methamphetamine as standing ‘in the lower spectrum of evil drugs or nearly so’. In Reg. v. Pearce … this Court described a drug of the same family as the drug under consideration in this case as in ‘”the middle range” so far as seriousness is concerned, that is to say, the middle range of prohibited drugs’. The Court commented that ‘it is a more dangerous drug than cannabis and its derivatives. On the other hand it is a less harmful drug than heroin.’ I think that the experience of the Courts in relation to prohibited drugs now enables us to treat methamphetamine and drugs of the same family as in the middle range of drugs which attract the maximum sentence of twenty-five years’ imprisonment, being more serious than hashish but less serious than heroin.”[43]

[42](1983) 34 SASR 555.

[43]At 556 (emphasis added).

Questions arise as to what was meant by the “middle range” of seriousness and as to the basis on which that characterization was made. Again, it appears that the assessment was based upon “the experience of the courts”. But of what did that experience consist, and by what measure was the range determined? There is, in our view, something incongruous about a sentencing system based on the notion of a “spectrum of evil”, developed on the basis of the anecdotally-gained understanding of individual judges, elevated to apparent knowledge by the use of the word “experience”, and leading to the creation of what purports to be an objectively- identified range.

As we suggested earlier, questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user’s behaviour and social interactions, or the overall social and economic costs to the community. Little assistance can be derived, in our view, from a consideration of classifications of seriousness employed by courts in the past which were, necessarily, based on limited experience and anecdotal evidence and appear not to have been informed by empirical studies or by the specialist knowledge now available.[44]
[44]As to the need for “appropriate studies” to be undertaken, see R v Bowers (1997) 97 A Crim R 461 at 464 per Ireland J.

With regrettable frequency, judges and magistrates are called on to deal with cases involving drug-affected or addicted persons, and with cases which relate to trafficking in a wide range of substances. Being exposed to evidence of the damage associated with the trafficking and use of various drugs, judges and magistrates may well come to view one drug as more pernicious than another. Their collective experience is clearly capable of providing an important insight into the kinds of problems associated with drug use, and the frequency with which those problems are encountered. Indeed, it is experience which could make a valuable contribution to the development of some form of harm-based classification were that legislative path to be chosen.

If some classification of seriousness is to be made on the basis of the perceived characteristics of particular drugs, this task should only be undertaken after clear identification of the criteria upon which the assessments are to be made. We do not regard the experience – individual and collective – of judges and magistrates as affording any basis whatever for a court to form, let alone act on, a view about the relative harmfulness of a particular drug. This is simply not a subject to which the doctrine of judicial notice has any application, less still the doctrine of precedent. After all, a conclusion about the harmfulness of a particular drug is a conclusion of fact.[45]
[45]cf. Vairy v Wyong Shire Council (2005) 80 ALJR 1 at [2]-[4] per Gleeson CJ and Kirby J.

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 discrimination between offences and offenders is required, based upon a wide range of considerations, in order to ensure that the sentences handed down in individual cases are appropriate in the particular circumstances relating to the offences and offenders concerned.

But in the fixing of the sentence for the particular offence of trafficking, there is no place – as the law stands – for any consideration of the (relative) harmfulness of the drug involved.

An important change, but not entirely novel

We recognise that our conclusion – that it is never relevant to consider the harmfulness of the drug in question - cuts across the conventional understanding that considerations of the relative harm of the drug trafficked are relevant to sentencing. Thus, no point was raised on the present appeals about the trial Judge having had regard to considerations of harmfulness. The only complaint concerned his failure to give prior notice of his intention to do so.

In R v Ryan, Salinas and Lizza,[46] Southwell J expressed the view that trafficking in cocaine did not represent as great a threat to society and its victims as did the heroin trade. In R v Stavropoulos and Zamouzaris,[47] McGarvie J said:

“The sentences of the courts under the Drugs, Poisons and Controlled Substances Act show that offences committed with respect to drugs such as heroin have been treated for sentencing purposes as inherently more heinous and serious than offences involving cannabis.”[48]

[46]Unreported, 24 February 1988.

[47](1990) 50 A Crim R 315.

[48]At 324.

The reasoning on which our conclusion depends is not, however, entirely novel. In 1983, Tadgell J, sitting as a member of the Court of Criminal Appeal in Zeccola,[49] was dealing with an offence of (being knowingly concerned in the) importation of a commercial quantity of cannabis resin, contrary to s.233B(1)(d) of the Customs Act 1901 (Cth). His Honour said in that case:

“... By the Customs Amendment Act 1979 (Cth), the Commonwealth Parliament made it very clear, in my view, that offences against s.233B(1) involving a commercial quantity of a prescribed narcotic substance were to be regarded as a class on their own, to be dealt with most sternly and in a manner not previously thought appropriate. It is notable that Schedule VIII, enumerating prescribed narcotic substances, includes cannabis and cannabis resin and tetrahydrocannabinols, although the commercial quantity prescribed is very different for each. In the result, I do not think that those who are intimately concerned in offences involving commercial quantities of prescribed narcotic substances, including cannabis resin, can now be dealt with except as criminals of a high order.”[50]

[49](1983) 11 A Crim R 192.

[50]At 201 (emphasis in original).

His Honour referred to earlier decisions in relation to the smuggling of relatively large amounts of narcotic substances, and remarked that the penalties imposed –

“seem to have been affected relatively little by the nature of the drug. The principal consideration influencing sentence, apart from matters personal to the offender, appears to have been the offender’s degree of involvement in the enterprise. Indeed, in Tait[51] the Federal Court said that:
‘It is not necessary to form any view as to the deleterious effects of cannabis. The relevant view in that regard is that which has been expressed by the legislature. It is for the courts to evaluate only the seriousness of the conduct by which the law has expressed in the statute has been violated.’

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. As against that, however, it has now to be recognised that the legislature has already made its own differentiation between various narcotic substances in deciding upon traffickable quantities and upon the applicable commercial quantities of those that have been designated as prescribed narcotic substances. Moreover, the difference between a traffickable and a commercial quantity applicable to any one prescribed narcotic substance is predetermined. Thus, in the case of cannabis resin, an offence attracting the high scale of penalty is not committed unless an amount equal to at least 2,500 times the traffickable quantity is involved. For these reasons I think the distinction which a court is entitled to draw for purposes of sentence between one drug and another (at least in cases concerning prescribed narcotic substances) is limited.”[52]

[51](1979) FLR 386 at 399.

[52]At 204 (emphasis added).

What was said in Zeccola was referred to by McGarvie J, sitting in the Court of Criminal Appeal in Stavropoulos andZamouzaris.[53] His Honour was dealing with an earlier version of the trafficking provisions in the DPCS Act. Section 71(1)(a) of the DPCS Act provided a maximum custodial penalty of 25 years’ imprisonment for trafficking in relation to not less than a commercial quantity of a drug of dependence, whereas a maximum of 15 years’ imprisonment was provided under s.71(1)(b) for all other cases of trafficking. His Honour said:

“It could be put that in dealing with trafficking in not less than the specified commercial quantities the legislature had introduced a degree of equivalence although not so as to indicate that the nature of the drug was always irrelevant to the level of sentence: cf. Zeccola”. [54]

Since, however, the applicable provision was s.71(1)(b), which had no quantitative threshold, his Honour held that the case was to be governed by the sentencing principle held applicable in Ibbs, to which we have already referred.[55]

[53](1990) 50 A Crim R 315.

[54]At 324.

[55]ibid

In R v Mandala,[56] this Court was dealing with the offence of importation of not less than a traffickable quantity of a particular narcotic, contrary to s.233B(1)(b) of the Customs Act 1901. In remarks which anticipated what he was later to say in Casey,[57] Winneke P said:

“The Legislature has placed the importation of ‘ecstasy’ on the same ‘rung of the ladder’ as the importation of heroin...”[58]
[56][1999] VSCA 159.
[57]See [8] above.
[58]At [24].

Fitzroy Legal Service as amicus curiae

Before these appeals came on for hearing, Fitzroy Legal Service (“FLS”) gave notice that it would apply, at the beginning of the hearing, for leave to appear as amicus curiae. FLS filed a detailed written submission in support of its foreshadowed application, outlining the matters which FLS wished to raise. In essence, FLS wanted to argue that –

(a) in assessing the seriousness of a particular drug offence, regard must be had – as a factor – to the actual or potential harms associated with the drug;

(b) in order to promote consistency in sentencing, this Court should provide guidance as to the relative harms associated with different drugs; and

(c) to that end, the Court should “take judicial notice of current learning as to the impact of drugs” and should receive a body of “empirical and scientific evidence concerning the relative harm of particular illicit drugs.”

The application for leave was opposed by the appellants, but not by the Crown. In the event, the Court granted FLS leave to appear as amicus curiae, but confined the leave to filing of the written submission and the making of brief oral submissions by way of clarification and emphasis.

There is no occasion to give lengthy reasons for the decision to grant leave. As Brennan CJ said in Levy v Victoria[59] -

“The hearing of an amicus curiae is entirely in the court’s discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the court a submission on law or relevant fact which will assist the court in a way in which the court would not otherwise have been assisted.”[60]

[59](1997) 189 CLR 579.

[60]At 604.

As his Honour also said in that case, it is not possible to identify in advance those circumstances in which the Court is likely to be assisted by the participation of an amicus. What can be said is that –

“an amicus will be heard when a court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.”[61]

[61]At 604-5.

The limited grant of leave to FLS reflected those competing considerations. The matters which FLS wished to raise were, for the most part, not otherwise proposed to be advanced by the parties to the appeals.

In addition to addressing the appellants’ grounds of appeal, FLS submitted that the Court should undertake a comprehensive review of a very large number of reports, papers and articles dealing with the effects of particular drugs, and should hear evidence from three nominated experts who have been involved in scientific research into the effect of illicit drugs. FLS appeared to be asking this Court to determine a harm-based hierarchy of drugs of dependence for use by Victorian courts.

For the reasons we have given, there is no occasion for such a hierarchy to be established while the DPCS Act remains in its present form. Even if there were, it would be both inappropriate and wholly impracticable for the task to be carried out by this (or any other) court. The task could only be undertaken by a standing advisory body of the kind established in the UK and in New Zealand, with appropriate expertise and resources and the capacity to review classifications in the light of new information.

The sentence appeals

On 8 June 2006, we dismissed the appeal by Pidoto. We allowed the appeal by O’Dea in part, and re-sentenced him. Our reasons for those orders are as follows.

On 15 May 2002 Pidoto sold 2,479 tablets of the drug ecstasy to O’Dea at a price of $40,000. The transaction was the result of an order placed with O’Dea by a police informer and was observed by members of the police force, who arrested the appellants immediately after Pidoto delivered the tablets to O’Dea. The tablets weighted 733 grams. Thirty-five per cent of the substance consisted of pure 3, 4-methylenedioxy-N-methylampethamine, commonly called ecstasy.

The appellants subsequently pleaded guilty in the County Court to one count of trafficking in not less than the commercial quantity of a drug of dependence, contrary to the provisions of s.71AA of the DPCS Act. A commercial quantity of ecstasy mixed with another substance is 500 grams.[62] O’Dea also pleaded guilty to one count of cultivating cannabis, which arose from the discovery of two large cannabis plants and 11 seedlings by members of the police force when they searched O’Dea’s house.
[62]See s.70 and column 2 of Part 3 of Schedule 11 to the Act.

Pidoto was sentenced to be imprisoned for a term of three years and six months, and a non-parole period of two years was fixed. O’Dea was sentenced to be imprisoned for a term of three years and six months on the count of trafficking and to a term of eight months on the count of cultivation. Four months of the second term was cumulated on the sentence imposed on the count of trafficking, creating a total effective sentence of three years and ten months’ imprisonment. A non-parole period of two years and two months was fixed.

A material factor in the sentencing process appears to have been the sentencing judge’s views as to the effects of the ingestion of ecstasy. His Honour said:

“One does not have to be in this Court very long to appreciate the magnitude of the drug problem in the community generally and its association with the commission of crime. Virtually every offence that comes before this Court, with the exception of sexual offences and white collar crime offences, have some drug connection in them, even if the offence is not on its face a drug offence. The drug involved here, an amphetamine-based drug, commonly known as ecstasy, is in my opinion emerging as a very significant community problem. On so many occasions one experiences really adverse behaviour, whether it is violence or some other type of adverse behaviour attributed to the use or abuse of this drug, and even more so, significant mental health problems being attributed to long-term abuse of this drug. Accordingly, this offence must be seen as trafficking in a very significant drug at a very significant level.” (emphasis added)

Leave to appeal was granted by a single judge of the Court. The grounds of appeal in both cases included attacks upon the approach of the sentencing judge disclosed in the passage in his sentencing remarks quoted in the previous paragraph. The notice of appeal by Pidoto contained the following grounds:

“2 (a)The sentencing judge erred in finding that the drug MDMA is emerging as a significant community problem resulting in adverse behaviour and significant mental health problems.
(b)If the judge intended to sentence on that basis counsel for the applicant should have been given the opportunity to address on that issue.”

The notice of appeal by O’Dea includes the following ground:
“2The learned sentencing judge erred in his characterization of MDMA (ecstasy) as there was not sufficient evidence to support such findings.”

For the reasons we have given, his Honour erred in bringing to bear on the sentencing question his assessment of the harm associated with using ecstasy. That was an irrelevant consideration. Even if it had been relevant, it was a breach of natural justice for his Honour to have acted on the basis of his own assessment of that harm, without first giving the appellants notice of his intention to do so and an opportunity to make submissions to the contrary.[63]
[63]R v Li [1998] 1 VR 637 at 643 per Winneke P; R v Downie and Dandy [1998] 2 VR 517 at 523 per Callaway JA.

We were also of the opinion that the sentencing judge had inadvertently denied O’Dea natural justice in his approach to sentencing him for the offence of cultivation of cannabis. The Act distinguishes between the cultivation of cannabis for one’s own use and cultivation for the purpose of trafficking. Section 72B of the Act provides that, if a trial judge is satisfied on the balance of probabilities that the offence of cultivating a narcotic plant was not committed for any purpose relating to trafficking, the maximum sentence is one year’s imprisonment and in any other case the maximum sentence is 15 years’ imprisonment.

In the course of the plea the prosecutor referred the sentencing judge to part of the appellant’s record of interview, where the appellant said that he had grown the cannabis for his own use. The prosecutor did not suggest that the appellant’s statement was untrue. Counsel for the appellant in the course of his plea said to the sentencing judge that the appellant used cannabis frequently for pain relief. The prosecutor made no demur and his Honour gave no sign that he did not accept that the cannabis was not being grown for the purpose of sale. Yet in sentencing the appellant his Honour said:

“I am not satisfied that the crop was entirely for your personal use. The point was only marginally addressed in the course of the plea.”

The question of the intended use of the crop of cannabis did not loom large in the plea, because both prosecutor and defence counsel proceeded upon the common assumption that the crop was not being grown for the purpose of sale. In our view it was incumbent upon the sentencing judge to warn counsel for the appellant that he did not share counsel’s assumption and required the appellant to discharge the onus cast upon him by s.72B of the DPCS Act to establish that the crop was not grown for the purpose of trafficking.

In Pantornov. R[64] it was held that a sentencing judge denied an offender natural justice in sentencing him under a provision of the Act equivalent to s.72B on the basis that there was no evidence before him that the offender’s possession of heroin was not for a purpose relating to trafficking. Deane, Toohey and Gaudron JJ said:

“In all the circumstances, it was incumbent upon the sentencing judge to indicate to his counsel his lack of acceptance of the underlying assumption upon which the submissions upon sentence had been made. This was particularly the case when counsel had asserted, without dissent from the Crown or comment by the sentencing judge, that the small quantity of heroin found in his client’s possession had, in any event, been for the applicant’s personal use.”[65]
[64](1989) 166 CLR 466.
[65]At 482.

Re-sentencing

For the foregoing reasons we concluded that the sentencing discretion had been reopened. Accordingly, it was necessary to examine the background and character of the appellants.

Pidoto is now aged 36 years. He had prior convictions for being in possession of a firearm without a licence and tampering with a motor car. Offences of being in possession of and using amphetamine and cultivating and using cannabis had been found proven in the Magistrates’ Court and adjourned. The appellant had had an unstable, dysfunctional upbringing by a young mother whose partner was a drug dealer. Despite the handicap of his childhood the appellant completed year 12 and then worked in various industries. While on bail for the present offences the appellant established a commercial gymnasium which the sentencing judge described as a “major enterprise” established “at considerable cost to [the appellant], both financially and in terms of physical effort.” The appellant could also rely upon his plea of guilty, remorse and ridding himself of a long-standing addiction to drugs.

O’Dea is now 35 years old. Offences of cultivating, being in possession of and using cannabis had been found proven in the Magistrates’ Court and adjourned. He came from a stable family. He left school after completing year 10 and was apprenticed to a plumber. He completed the apprenticeship and worked as a plumber and later as a printer. He had two daughters, one aged eight years and the other 22 months. According to a representative of the Department of Human Services, the children’s mother is unable or unwilling to properly care for them. O’Dea could also rely upon pleas of guilty.

Notwithstanding the mitigating factors upon which the appellants could rely, we were not minded to pass different sentences on the counts of trafficking in not less than the commercial quantity of ecstasy, having regard to the gravity of the offence. The quantity and value of the drug in which the appellants trafficked were substantial. The transaction was not a retail sale. We therefore dismissed Pidoto’s appeal.

We did, however, allow the appeal by O’Dea against his sentence for the

offence of cultivating cannabis. In the light of the basis upon which the plea was conducted, it appeared to us that the appellant had satisfied the onus cast upon him by s.72B of the Act. We substituted a sentence of two months and made it concurrent with the sentence imposed in respect of the offence of trafficking, thereby creating a total effective sentence of three years’ and six months’ imprisonment. We fixed a non-parole period of two years.

CALLAWAY, J.A.:

In my opinion, the sentencing discretion was reopened in both these appeals. If the learned sentencing judge was entitled to differentiate between ecstasy and other drugs of dependence, in a way that worked against the appellants’ interests, he was obliged to warn counsel that he proposed to take that course. The matters adverted to in the latter part of the passage set out at [81] above went beyond a matter of notoriety or obviousness of which no warning was required.[66] Alternatively, if his Honour was not so entitled, he took into account an irrelevant consideration in a material way.[67] In R. v. O’Dea there are also the reasons given by Maxwell, P., Buchanan, Vincent and Eames, JJ.A. at [84] – [87].
[66]Compare R. v. Downie andDandy [1998] 2 V.R. 517 at 523.
[67]House v. R. (1936) 55 C.L.R. 499 at 504 – 505; Cranssen v. R. (1936) 55 C.L.R. 509 at 519 – 520; R. v. Taylor and O’Meally [1958] V.R. 285 at 289.

The discretion in each appeal being reopened, I agreed in the orders proposed by the other members of the Court, for the reasons given at [88] – [92]. Those orders were pronounced whilst I was on leave, but with my consent, on 8^th June 2006.

One of the functions of an appellate court is to decide the instant case. What I have written so far discharges my obligation in that regard. Another function of an appellate court is to decide more far reaching questions of law and practice. That is the function discharged by the other members of the Court in their judgment. I agree with it in part, particularly their Honours’ identification of the difficulties

faced by sentencing judges[68] in forming a reliable opinion about the relative harmfulness of trafficking in different kinds of drugs of dependence. It may be that, for that reason, drug offences have to be treated differently from other offences where it is commonplace to take into account degrees of seriousness and for seriousness to include harmful effects on the community at large.[69] With respect, however, I am not sufficiently persuaded to travel the whole distance and join in the judgment.

[68]Like their Honours, I use this expression to include sentencers in all jurisdictions, including magistrates.

[69]See, however, R. v. Poon (2003) 56 N.S.W.L.R. 284 at 285 [1], 295 [45] and 297 [56].

A reasoned dissent, or difference of opinion, is helpful to the High Court in some cases, but my uncertainty and misgivings make that unlikely in this case. Moreover, it will be the duty of sentencing judges to give effect to the views of the majority and, because those views involve a change in sentencing practice, it is desirable that they be published without avoidable delay.

For similar reasons, I express no opinion as to whether Ibbs v. R.[70] is relevantly distinguishable.[71] However that may be, it cannot be too strongly emphasized that the mere fact that Parliament fixes the same maximum penalty for a particular offence that comprises several categories, or may be committed in different ways, does not involve a legislative judgment that all those categories, or all those ways of committing the offence, are of equal gravity. It is not only Ibbs v. R. that establishes that proposition. It is true as a matter of fundamental principle, for it is of the essence of sentencing in our system of criminal justice that one size does not fit all. A sentence reflects the circumstances of the offence and of the offender in the instant case. The principle has usually been well observed, but on occasion there have been statements that might be taken to the contrary. They are erroneous and should not
[70](1987) 163 C.L.R. 447 at 452.
[71]Compare [37] – [38] above.

be followed.[72] I do not understand the joint judgment to be inconsistent with this paragraph.
[72]An example that was mentioned in the course of the argument in the present appeals is the statement in R. v. Brown (2002) 5 V.R. 463 at 478 [57] second sentence.

---

[2006] VSCA 185

8 September 2006