The State of Western Australia v Higgins
[2008] WASCA 157
•24 JULY 2008
THE STATE OF WESTERN AUSTRALIA -v- HIGGINS [2008] WASCA 157
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 157 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:82/2007 | 19 JUNE 2008 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 24/07/08 | |
| 55 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA PAUL AARON HIGGINS |
Catchwords: | Criminal law Sentencing Misuse of Drugs Act 1981 (WA) Offender convicted of possession with intent to sell or supply 249 g of MDMA (33% pure) Sentence of 4 years' imprisonment State appeal against sentence Whether sentence manifestly inadequate Criminal law Sentencing Drug offences General principles Whether relative harmfulness of drug the subject of the conviction a relevant sentencing consideration under the Misuse of Drugs Act Weight to be accorded in sentencing offender to relative harmfulness of drug Whether MDMA should be treated as seriously as methylamphetamine, heroin or cocaine for purposes of sentencing |
Legislation: | Controlled Substances Act 1984 (SA), s 44(a) Crimes (Confiscation of Profits) Act 1988 (WA) Criminal Appeals Act 2004 (WA), s 31(1)(a), s 41(4)(b) Criminal Code (WA), s 5, s 317, s 317A, s 401, s 409, s 426 Criminal Code Act 1995 (Cth), s 11.2(1) Criminal Law and Evidence Amendment Act 2008 (WA) Criminal Property Confiscation Act 2000 (WA), s 8 Customs Act 1901 (Cth), s 233B, s 235 Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Drug, Poisons and Controlled Substances Act 1981 (Vic), s 4, s 70, s 71, s 71AA, s 71AC, sch 11 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) Misuse of Drugs Act 1971 (UK) Misuse of Drugs Act 1975 (NZ) Misuse of Drugs Act 1981 (WA), s 3, s 4(1), s 6, s 7, s 9, s 11, s 32A, s 34, sch III, sch V Misuse of Drugs Amendment Act 1990 (WA) Poisons Act 1964 (WA), s 5, s 19(a), s 20(2)(h), s 20(2)(i), sch 8, sch 9 Sentencing Act 1995 (WA), s 32 Sentencing Legislation Amendment and Repeal Act 2003 (WA) Therapeutic Goods Act 1989 (Cth), s 52C, s 52D, s 52E |
Case References: | Adams v The Queen [2008] HCA 15; (2008) 82 ALJR 718 Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417 Bellissimo v The Queen (1996) 84 A Crim R 465 Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414 Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Burke v The State of Western Australia [2007] WASCA 210 Colangelo v The State of Western Australia [2004] WASCA 294 Darwell v The Queen (1997) 94 A Crim R 35 Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 Executive Director, Public Health v Meers [2007] WASCA 187 F v The Queen [2005] WASCA 135 Guy v The Queen [2004] WASCA 9; (2004) 143 A Crim R 428 Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 Ibbs v The Queen (1987) 163 CLR 447 Krakouer v The Queen (1996) 16 WAR 1 Miller v The Queen [1999] WASCA 66 Moody v French [2008] WASCA 67 Nestle Australia Ltd v Commissioner of Taxation (Cth) (1987) 16 FCR 167 Olomi v The State of Western Australia [2004] WASCA 304 R v Casey [2002] VSCA 117 R v Chan (1989) 38 A Crim R 337 R v Corbett [2008] NSWCCA 42 R v Cronn and Bladon (1983) 34 SASR 555 R v Dang [2005] NSWCCA 430 R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493 R v Perrier [2008] VSCA 97 R v Pidoto [2006] VSCA 185; (2006) 14 VR 269 R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284 R v Reed [2007] VSCA 67 R v Reppucci (Unreported, WASCA, Library No 940404, 5 August 1994) R v Ruich [2000] WASCA 84 R v Sibic [2006] VSCA 296; (2006) 168 A Crim R 305 R v Tiburcy [2006] VSCA 244; (2006) 166 A Crim R 291 Samuels v The State of Western Australia (No 2) [2006] WASCA 222 Sinagra-Brisca v The Queen [2004] WASCA 68 The State of Western Australia v Andela [2006] WASCA 77 The State of Western Australia v Collier [2007] WASCA 250 The State of Western Australia v Richards [2008] WASCA 134 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Vagh v The State of Western Australia [2007] WASCA 17 Ziino v The State of Western Australia [2007] WASCA 222 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- HIGGINS [2008] WASCA 157 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
PAUL AARON HIGGINS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
File No : IND 1256 of 2006
Catchwords:
Criminal law - Sentencing - Misuse of Drugs Act 1981 (WA) - Offender convicted of possession with intent to sell or supply 249 g of MDMA (33% pure) - Sentence of 4 years' imprisonment - State appeal against sentence - Whether sentence manifestly inadequate
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Criminal law - Sentencing - Drug offences - General principles - Whether relative harmfulness of drug the subject of the conviction a relevant sentencing consideration under the Misuse of Drugs Act - Weight to be accorded in sentencing offender to relative harmfulness of drug - Whether MDMA should be treated as seriously as methylamphetamine, heroin or cocaine for purposes of sentencing
Legislation:
Controlled Substances Act 1984 (SA), s 44(a)
Crimes (Confiscation of Profits) Act 1988 (WA)
Criminal Appeals Act 2004 (WA), s 31(1)(a), s 41(4)(b)
Criminal Code (WA), s 5, s 317, s 317A, s 401, s 409, s 426
Criminal Code Act 1995 (Cth), s 11.2(1)
Criminal Law and Evidence Amendment Act 2008 (WA)
Criminal Property Confiscation Act 2000 (WA), s 8
Customs Act 1901 (Cth), s 233B, s 235
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Drug, Poisons and Controlled Substances Act 1981 (Vic), s 4, s 70, s 71, s 71AA, s 71AC, sch 11
Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth)
Misuse of Drugs Act 1971 (UK)
Misuse of Drugs Act 1975 (NZ)
Misuse of Drugs Act 1981 (WA), s 3, s 4(1), s 6, s 7, s 9, s 11, s 32A, s 34, sch III, sch V
Misuse of Drugs Amendment Act 1990 (WA)
Poisons Act 1964 (WA), s 5, s 19(a), s 20(2)(h), s 20(2)(i), sch 8, sch 9
Sentencing Act 1995 (WA), s 32
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Therapeutic Goods Act 1989 (Cth), s 52C, s 52D, s 52E
Result:
Appeal allowed
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Category: A
Representation:
Counsel:
Appellant : Mr S Vandongen
Respondent : Mr L A Margaretic
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : O'Connor Lawyers
Case(s) referred to in judgment(s):
Adams v The Queen [2008] HCA 15; (2008) 82 ALJR 718
Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417
Bellissimo v The Queen (1996) 84 A Crim R 465
Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Burke v The State of Western Australia [2007] WASCA 210
Colangelo v The State of Western Australia [2004] WASCA 294
Darwell v The Queen (1997) 94 A Crim R 35
Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499
Executive Director, Public Health v Meers [2007] WASCA 187
F v The Queen [2005] WASCA 135
Guy v The Queen [2004] WASCA 9; (2004) 143 A Crim R 428
Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260
Ibbs v The Queen (1987) 163 CLR 447
Krakouer v The Queen (1996) 16 WAR 1
Miller v The Queen [1999] WASCA 66
Moody v French [2008] WASCA 67
Nestle Australia Ltd v Commissioner of Taxation (Cth) (1987) 16 FCR 167
Olomi v The State of Western Australia [2004] WASCA 304
R v Casey [2002] VSCA 117
R v Chan (1989) 38 A Crim R 337
R v Corbett [2008] NSWCCA 42
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R v Cronn and Bladon (1983) 34 SASR 555
R v Dang [2005] NSWCCA 430
R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493
R v Perrier [2008] VSCA 97
R v Pidoto [2006] VSCA 185; (2006) 14 VR 269
R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284
R v Reed [2007] VSCA 67
R v Reppucci (Unreported, WASCA, Library No 940404, 5 August 1994)
R v Ruich [2000] WASCA 84
R v Sibic [2006] VSCA 296; (2006) 168 A Crim R 305
R v Tiburcy [2006] VSCA 244; (2006) 166 A Crim R 291
Samuels v The State of Western Australia (No 2) [2006] WASCA 222
Sinagra-Brisca v The Queen [2004] WASCA 68
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Collier [2007] WASCA 250
The State of Western Australia v Richards [2008] WASCA 134
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Vagh v The State of Western Australia [2007] WASCA 17
Ziino v The State of Western Australia [2007] WASCA 222
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1 STEYTLER P: The respondent was convicted, after a trial, of possession of a prohibited drug, 3, 4-Methylenedioxy-N, Alpha-Dimethylphenylethylamine (MDMA) with intent to sell or supply. He was sentenced to a term of 4 years' imprisonment, with effect from 7 June 2007, with eligibility for parole. A drug trafficker declaration was made, drugs and associated paraphernalia found in the respondent's home were ordered to be destroyed and cash found there was forfeited. The State appeals against the term of 4 years' imprisonment upon the grounds that it was manifestly inadequate and infected by a number of errors made by the sentencing judge.
Circumstances of the offence
2 In March 2006 police executed a search warrant at the respondent's home. They found $2,280 in cash in his wallet and a safe containing $54,250 in cash. They also found 249 g of MDMA (popularly known as 'ecstasy'). This was wrapped in a nappy in a plastic bag in a cereal box that had been re-glued shut and placed in a kitchen cupboard. In the respondent's study was a package of small clipseal bags and a set of small electronic scales. The scales revealed traces of methylamphetamine and cocaine. The 249 g of MDMA (which had a purity of 33%: ts 50) had a street value of $50,000 and a wholesale value somewhere between $18,000 and $25,009, depending upon the respondent's position in the drug dealing hierarchy.
3 The respondent was a dealer for financial gain. He had only ever used MDMA 'once or twice'.
Sentencing remarks
4 In his sentencing remarks, the sentencing judge twice said, incorrectly, that the maximum penalty for the offence of which the respondent had been convicted was one of 20 years' imprisonment. In fact, it was one of imprisonment for a term not exceeding 25 years and/or a fine not exceeding $100,000: s 34(1)(a) of the Misuse of Drugs Act 1981 (WA). Then, after referring to the circumstances of the offence, the trial judge said that the respondent was to be dealt with 'as a person dealing in [MDMA] at a significant level … mid-level, high side mid-level perhaps'. He also said that the respondent was neither a personal drug abuser nor a street dealer or retailer and that he was a 'mid-level supplier'.
5 After making a number of other comments, the sentencing judge went on to say:
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- In relation to this type of offence this court and every court in Western Australia for years has been saying how drugs are a scourge in the community, they cause heaps of problems to everybody. Most burglaries and robberies are committed by people who want money for drugs because they have got a habit. It is a dreadful scourge in our community, damaging innocent people every day. Bag snatches, all of the insane driving cases that one sees, most of them are people speeding, high on drugs.
Looking at it that way it seems to me, from what I have read, that people who are on an ecstasy pill they don't generally do that sort of stuff. It's mainly people on methylamphetamine, crystal meth, who do violently antisocial things. Of course addicts who need money for heroin will all do antisocial things. They will steal anything to get money to get a hit but the law in this state is that MDMA or ecstasy pills is to be treated as in the same class of serious drugs as heroin and methylamphetamine, crystal meth, not in the same class as cannabis.
Heavy penalties are imposed for this sort of criminality in our community. The theory is to impose stiff penalties so that anybody who is thinking about getting into the drug business will say, 'Gee, I'm not going to go and do that. Did you hear what happened to [the respondent]? He went in for this or that sort of time.' General deterrence is what it is called.
There has been no publicity for this matter at all. There is nobody in here from the newspapers today. There won't be any mention about this. How there will be any general deterrence arising out of this is hard to think really, word of mouth and nothing more but that's not a concern of mine. I have got to impose a penalty which will discourage other people so it is not just about you. It's about the community.
6 Stopping there for the moment, I should point out that there was no evidence before the sentencing judge concerning the behaviour of people taking ecstasy pills, in particular as regards the effect of that drug on driving skills and attitudes. I should also say that, if the sentencing judge intended to suggest that, merely because the media were not present, it was not sensible to take into account the needs of general deterrence (although he accepted that he was required to do so), that is an unsustainable proposition. Courts never know whether there will, or will not, be publicity surrounding a particular sentence. Moreover, those in, or close to, the drug community who are associated with the respondent would undoubtedly have come to know of the sentence imposed upon him. The same is true of others in the prison community. It would be a serious error to think that general deterrence is only an issue when the media are present in court at the time of sentencing. Also, if judges were to impose penalties on a scale of severity that depended upon who was likely to get to hear of them, sentencing would become random and shambolic and the public would soon lose confidence in the courts.
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7 The sentencing judge returned to the nature of MDMA a little later in his reasons. He said:
The Court of Criminal Appeal has said that sentences should be firmed up and that ecstasy tablets - or ecstasy should be re-categorised as on a par with the others, heroin and methylamphetamine, in terms of seriousness.
I have got to say obviously I have to take account and follow what is said by them, but sitting as a judge here, I have not come across a single case where a person has behaved in a violently or any significantly illegal way having taken ecstasy. Usually it's taken for a party drug - good times. It's non-violent in its effect, so far as I know. It is however addictive, although not as addictive as methylamphetamine or heroin, but people who use it get a habit for it and occasionally it kills people because it results in some organ failure because of dehydration. Whilst they're dancing for nights on end, they have an internal collapse, but that's a rarity but it is known to occur.
- This passage reveals the danger, for judges, in relying upon their own experience or assumptions concerning the effects of a drug, in the absence of evidence. Evidence placed before us (to which I will return later in these reasons) shows that harm to users of MDMA (and its associated substances) is, in some respects at least, more severe than the sentencing judge assumed. So, too, is the harm to others caused by users of MDMA.
8 The sentencing judge next referred to F v The Queen [2005] WASCA 135. This concerned an offence under s 233B(1)(c) of the Customs Act 1901 (Cth) involving some 1,000 MDMA tablets with a gross weight of 241.5 g (65.1 g pure). In that case, the sentencing judge had made no allowance for future cooperation with the police by the appellant. After a successful appeal, the appellant was sentenced to a term of 5 years' imprisonment with a non-parole period of 2 1/2 years. The sentencing judge in the present case placed considerable reliance on this sentence. He calculated that, working backwards, the Court of Appeal must have started, in F, with a sentence of 12 years' imprisonment before allowing deductions of one-third each for a fast-track plea of guilty and (mistakenly, given that he was dealing with Commonwealth legislation) for the effect of the transitional provisions enacted by the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (transitional provisions). However, in arriving by that means at the sentence of 'about 5 1/2 years' (in fact it was 5 years' imprisonment), he overlooked the discount of 2 years that had been allowed by the court [19] for future co-operation and also the fact that this had been part co-operation. Also, the sentencing judge said that F was a case of importation (in fact it was one of attempted possession of a trafficable
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- quantity of imported MDMA) which, he thought, 'evidences more serious criminality than the serious criminality involved in possession with intent to sell or supply'.
9 Turning to the matter before him, the sentencing judge said that he had to take a starting point of 10 years' imprisonment. He said (mistakenly) that this was half the maximum penalty provided for the offence. Then, he said that there were 'very strong personal factors' for which he gave a discount of 2 1/2 years. The personal factors to which he referred were favourable personal references concerning the respondent, his 'insignificant prior record', the fact that he had 'very difficult personal circumstances with [his] health and from birth' and his supportive family. The difficult personal circumstances to which the sentencing judge referred were seemingly that the 35-year-old respondent suffered from dyslexia and attention deficit disorder. The sentencing judge then discounted the resulting figure of 7 1/2 years by one-third pursuant to the transitional provisions, arriving at a term of 5 years' imprisonment. Finally, he took into account the fact that, because he was required to make a drug trafficking declaration, the respondent's house would be forfeited notwithstanding that it had been acquired from lawfully obtained assets. This led him to make a further deduction of 20%, resulting in the ultimate sentence of 4 years' imprisonment, with eligibility for parole.
The grounds of appeal
10 There are four grounds of appeal. The first is that the sentencing judge erred in taking into account MDMA's position in a spectrum of harmfulness of prohibited drugs. The second is that he placed undue emphasis on mitigatory factors that were personal to the respondent. The third is that he failed to comply with the transitional provisions because the discount allowed by him in respect of the forfeiture of the respondent's house was made after making the required one-third deduction rather than before. The fourth ground is that the sentence imposed was manifestly inadequate having regard, amongst other things, to the seriousness of the crime, the need for general deterrence and the place that MDMA occupies in the relative hierarchy of prohibited drugs (assuming that ground 1 is not made out).
11 I will deal, first, with grounds 2, 3 and 4.
Ground 2
12 It is not easy to make out a ground that contends that a sentencing judge erred in placing 'undue emphasis' on a particular factor. There will
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- be error when a material consideration is noticed, but erroneously discarded as irrelevant: Nestle Australia Ltd v Commissioner of Taxation (Cth) (1987) 16 FCR 167, 184 (Wilcox J); Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499, 512 (Hely J); and Executive Director, Public Health v Meers [2007] WASCA 187 [21] (McLure JA). However, where a decision-maker gives some weight to a particular consideration, it is a good deal more difficult to upset the decision upon the basis that insufficient weight, or too much weight, was given to it, at least in the absence of some other indication of error as, for example, manifest excess or manifest inadequacy of the sentence imposed.
13 Because of this, counsel for the appellant dealt with this ground, in his oral submissions, by contending that the sentencing judge entirely overlooked, or disregarded, the settled proposition that deterrence and protection of the community are paramount sentencing considerations for this type of offence and that favourable personal antecedents of the offender must play a considerably lesser part: Bellissimo v The Queen (1996) 84 A Crim R 465; R v Ruich [2000] WASCA 84 [14] (Pidgeon J, Kennedy & Ipp JJ concurring); Miller v The Queen [1999] WASCA 66 [31] (Pidgeon J, Wallwork & Steytler JJ concurring); Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [42] (Miller J), [46] (McLure J).
14 I have said that the sentencing judge allowed a discount of 25% (equating to 2 1/2 years' imprisonment) in respect of the respondent's 'personal factors'. That is a surprising discount in any case involving a drug-dealing offence conducted purely for commercial gain. It is especially surprising in the circumstances of this case. I would respectfully disagree with the sentencing judge's categorisation of the respondent's personal factors as being 'very strong'. It is true that he had only a minor criminal record, that his personal antecedents were generally good and that employment will be available to him on his release from prison. However, nothing in those facts places him in any different position to many others who come before the courts in respect of this kind of offending. Although the respondent had experienced difficulty because of his dyslexia and attention deficit disorder, neither was suggested to have contributed, in any way, to his offending behaviour. He had had the benefit of a supportive family throughout his life. He was not a young man. I have said that he was 35 years old at the time of sentencing. His lack of remorse for his offending behaviour is evident from the fact that he chose to plead not guilty to the charge against him. This was so even
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- though, as the sentencing judge said, the prosecution case was 'very strong'.
15 This is consequently one of those relatively rare cases in which the weight given to matters personal to the respondent, and the lack of weight given to the principle of general deterrence, were such as to amount to an error in principle. That error is underlined when regard is had to the comments made by the trial judge, quoted earlier in these reasons, concerning the issue of general deterrence. It is also underlined by the sentencing judge's acknowledgement that 'some people will say that I am overweighting [the discount that] I am about to give … for … personal factors'. The error is also made manifest by the inadequacy of the ultimate sentence of 4 years' imprisonment imposed by the sentencing judge (an issue to which I will shortly return when dealing with ground 4).
Ground 3
16 As to ground 3, the trial judge erred in reducing the respondent's prison term so as to reflect the forfeiture of his house, after, rather than before, giving effect to the transitional provisions. Clause 2(1) of the transitional provisions unambiguously provides that the sentencing court must impose a fixed term that is two-thirds of the fixed term that it would have imposed were it not for the operation of the transitional provisions. That involves a two-stage process. First, the court must consider what should be the appropriate sentence, after taking into account all relevant factors. Then, having arrived at that sentence, it must reduce it by one-third: Moody v French [2008] WASCA 67 [24] (Steytler P, Wheeler, McLure & Buss JJA).
17 In this case the error made no difference. Either way, the mathematics produces an outcome of 4 years' imprisonment. However, counsel for the appellant contended that the existence of the error entitles this court to re-sentence the respondent, even though the error had no effect on the sentence ultimately imposed. That is not correct. The Court of Appeal may only allow an appeal against sentence under s 31(1)(a) of the Criminal Appeals Act 2004 (WA) if, in its opinion, a different sentence should have been imposed: s 31(4). The existence of an error that had no effect on the sentence imposed would not justify this court in allowing an appeal. Ground 3 consequently fails.
Ground 4
18 That brings me to ground 4. When considering the adequacy of a sentence, it is necessary to view it in the perspective of the maximum
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- sentence prescribed by law for the crime (in this case 25 years' imprisonment and not, as the trial judge thought, 20 years' imprisonment), the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337, 342.
19 As to customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases, in an attempt to achieve consistency in sentencing: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] (McLure JA); Ziino [25] (Owen JA, Wheeler & Miller JJA concurring). I will consequently consider a number of the more recent cases involving MDMA.
20 In Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417, the court (Malcolm CJ, Wallwork & Anderson JJ) dealt with an offender who had been convicted, after trial, on one count of possession of methylamphetamine with intent to sell or supply, one of possession of amphetamine with intent to sell or supply and one of possession of MDMA with intent to sell or supply (current offences). The MDMA count involved 150 tablets amounting in all to some 36.78 g. The offender, whose age does not appear from the reasons of the court, was sentenced to a term of 6 years' imprisonment in respect of the methylamphetamine, 2 years' imprisonment in respect of the amphetamine and 3 years' imprisonment in respect of the MDMA. The sentences (which preceded the operation of the transitional provisions) were ordered to be served concurrently, but cumulatively upon a term of 2 years and 9 months' imprisonment then being served by the offender in respect of a charge of cultivating cannabis with intent to sell or supply (prior offence). However, after being sentenced by the trial judge and before his appeal against the sentences imposed in respect of the current offences was heard, the offender had successfully appealed against the sentence imposed in respect of the prior offence and that sentence was reduced to a term of 12 months' imprisonment. The appeal against the sentences imposed for the current offences subsequently failed when an application for an extension of time was refused.
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21 In Sinagra-Brisca v The Queen [2004] WASCA 68, the court (Templeman, Wheeler & McLure JJ) was concerned with an offender who had been convicted, after pleading guilty on the fast-track, on two counts of possession of MDMA with intent to sell or supply and two counts of possession of methylamphetamine with intent to sell or supply. The first MDMA offence (count 1) involved more than 10,000 ecstasy tablets weighing 2.4 kg and having a purity of about 27%. The tablets had a street value of around $500,000. The second MDMA count (count 4) involved 55 tablets weighing about 14 g and having a purity of about 18%. The first of the methylamphetamine charges (count 2) involved 5.06 kg of methylamphetamine ranging in purity between 21% and 50%, with the majority of it (4.625 kg) having a purity between 46% and 50%. The second methylamphetamine count (count 3) involved 800 g of methylamphetamine with a purity ranging from 28% to 70%. The offender was sentenced (prior to the operation of the transitional provisions) to terms of 17 years and 6 months' imprisonment on each of counts 1 and 2, to a term of 3 years' imprisonment on count 3 (although the trial judge said that, were it not for totality reasons, he would have imposed a sentence of 7 years' imprisonment) and to a term of 3 years' imprisonment on count 4. The term imposed in respect of count 3 was ordered to be served cumulatively on that imposed on count 1 but the other sentences were ordered to be served concurrently with that term. The offender was liable to have five motor vehicles forfeited (they were worth $124,000) and also quantities of cash and jewellery. He had a gambling problem and had been a user of MDMA. He had a low average IQ as well as significant deficits in verbal cognitive skills. A psychologist suggested that the expense associated with his drug use, gambling and debt probably contributed to his decision to engage in drug dealing. His appeal against sentence was dismissed.
22 In Colangelo v The State of Western Australia [2004] WASCA 294, the offender had carried on a drug trafficking business. He was a middle-range dealer. He was 23 years old. He pleaded guilty, albeit not on the fast-track, to three counts of possession of drugs with intent to sell or supply. Count 1 related to 53.32 g of methylamphetamine with a purity ranging from 9% to 48%. Count 2 related to 74 MDMA tablets, the purity of which was not stated. Count 3 related to 26.3 g of methylamphetamine with a purity of 37%. The offender was sentenced (after the transitional provisions had come into effect) to terms of 4 years' imprisonment in respect of count 1, 2 years' imprisonment in respect of count 2 and 2 years' imprisonment in respect of count 3. The first two terms were ordered to be served concurrently. The third was ordered to be served
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- cumulatively upon the other two. The appeal against sentence (which asserted a breach of the totality principle) was unsuccessful.
23 In Olomi v The State of Western Australia [2004] WASCA 304, the court (Murray, Templeman & Miller JJ) was concerned with an application for leave to appeal against sentence brought by an offender who had pleaded guilty on the fast-track to two counts of possession of drugs with intent to sell or supply. The first count related to 247 MDMA tablets weighing 53.85 g (the purity of which was not stated). The second related to 64.48 g of methylamphetamine (also of an un-stated purity). The offender (whose age does not appear from the reasons) was in breach of parole when arrested in respect of these counts. He had 987 parole days to serve. The offences had been committed partially to fund the offender's drug habit but mainly to make a profit of $30,000. The applicant (who was sentenced after the coming into effect of the transitional provisions, as was the fact with the remaining cases to which I shall refer) was required to serve a term of 32 months' imprisonment on each count, to be served cumulatively. Leave to appeal was refused.
24 In F v The Queen (which, as I have said, was relied on by the sentencing judge) the offender was convicted, after pleading guilty, on one count of attempting to have in his possession some 1,000 ecstasy tablets with a gross weight of 241.5 g (65.1 g pure) which had been imported into Australia contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). He had no relevant prior convictions and a good employment record. He had provided significant cooperation to the authorities. He had signed an undertaking to testify against a person based in the United Kingdom who had been involved in the importation of the drugs that had led to his conviction, if that person was to be extradited to Australia. He had also undertaken to provide evidence against a third person in Western Australia, relating to that person's alleged involvement in dealing with money believed to be the proceeds from the sale of drugs. He was sentenced to a term of 8 years' imprisonment with a non-parole period of 4 years. After a successful appeal, he was, as I have said, re-sentenced to a term of 5 years' imprisonment with a non-parole period of 2 1/2 years. I have earlier mentioned that this took into account his part co-operation and a deduction of 2 years from his head sentence (and 1 year from his non-parole period) in respect of future cooperation.
25 In The State of Western Australia v Andela [2006] WASCA 77, the 21-year-old offender had pleaded guilty on the fast-track to one count of possessing 500 MDMA tablets, weighing 138.5 g and having a purity of around 37% to 42%, with intent to sell or supply. The offender was in
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- full-time employment. He had no prior convictions. He had good references. He had been addicted to cocaine and had committed the offence in order to finance his drug habit. The sentencing judge imposed a term of 2 years' imprisonment, suspended for 2 years. After a successful State appeal, the offender was sentenced to a term of 18 months immediate imprisonment. The court (McLure JA, with whom Roberts-Smith & Buss JJA agreed) described the term of 2 years' imprisonment as lenient, but said that it had not been challenged by the Crown. The reduction to 18 months' imprisonment was in order to give recognition to the element of double jeopardy.
26 In Samuels v The State of Western Australia (No 2) [2006] WASCA 222, the offender was convicted, after a trial, on one count of possession of methylamphetamine with intent to sell or supply and one count of possession of MDMA with intent to sell or supply. He had possessed 23.5 g of methylamphetamine with a purity of 34% and 315.8 g of MDMA with a purity of around 21%. He was 33 years old at the time of sentencing. He had no previous convictions for similar offences and had not offended in any way since December 2001. He was categorised as operating at a level of 'mid-level commerciality'. He was sentenced (surprisingly) to a term of 4 years' imprisonment in respect of the MDMA and to a term of 5 years' imprisonment in respect of the much smaller quantity of methylamphetamine. The sentence imposed in respect of count 2 was ordered to be served partly cumulatively upon that imposed on count 1, producing an aggregate of 6 years' imprisonment. His appeal against sentence was dismissed.
27 In Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414, the court (Wheeler, McLure & Buss JJA) dealt with an appeal against sentence by an offender who had pleaded guilty to three drug offences. The first of these (count 1) was an offence of aiding the importation into Australia of a quantity of MDMA, being not less than the trafficable quantity, contrary to s 11.2(1) of the Criminal Code 1995 (Cth) and s 233B(1)(b) of the Customs Act. The second and third (counts 2 and 3) were offences of possession of MDMA with intention to sell or supply.
28 Count 1 involved 1,975 MDMA tablets with a gross weight of 414.9 g and a relatively low purity of 5.4%. The nett quantity of pure MDMA was 22.4 g. The offender had been party to arranging the importation of the MDMA tablets from the United Kingdom by air cargo to Perth International Airport. When the drugs arrived, they were sent to a specified address, where they were accepted by the offender's female acquaintance. The offender later took possession of the parcel from his
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- acquaintance and opened it. This gave rise to count 2. He was arrested as he was leaving the premises with the open parcel on the back seat of his car. At the time of committing the offences the subjects of counts 1 and 2, the offender had been on parole for offences of selling prohibited drugs and possession of prohibited drugs with intent to sell or supply. Count 3 involved some 2,498 MDMA tablets with a gross weight of 461.7 g and a purity ranging between 25% and 32%.
29 The offender was 30 years old at the time of committing the offences. He had lived on the streets since the age of 14 and had become addicted to heroin at the age of 15. He had then entered upon a life of crime and drugs. He was sentenced, on count 1, to a term of 6 years' imprisonment with a non-parole period of 3 years. He was sentenced to a similar term in respect of count 2, to commence after he had served 2 years' imprisonment on count 1. On count 3 he was sentenced to a term of 8 years' imprisonment, to commence after he had served 4 years' imprisonment in respect of the first two counts. This gave rise to a total of 12 years' imprisonment. His appeal against sentence was successful. The court set aside the order that the term of 8 years' imprisonment commence after the offender had served 4 years in respect of the first two counts. In lieu, it ordered that the 8-year term was to commence after the offender had served 2 years in respect of the first two counts. This gave rise to a total effective sentence of 10 years' imprisonment.
30 In Vagh v The State of Western Australia [2007] WASCA 17, the offender was convicted on three counts of possession of a prohibited drug with intent to sell or supply. He was also convicted, pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), of three minor offences. The first of the serious offences (count 1) related to 133.3 g of methylamphetamine with a purity ranging between 15% and 17%. The second (count 2) involved 58 LSD tablets. The third (count 3) involved 98 ecstasy tablets with a total weight of 30.65 g.
31 The appellant was 22 years old. He had no prior record. He had pleaded guilty to all three counts, although the pleas had not been made at the earliest opportunity and were not treated as fast-track pleas of guilty for the purposes of sentencing. He had supplied the 98 tablets at a cost of $2,350. He had not himself obtained any financial gain from that sale, although he had done so from other transactions. He was sentenced to terms of 3 years and 9 months' imprisonment on count 1, 1 year and 8 months' imprisonment on count 2 and 2 years and 1 month's imprisonment on count 3. The first two terms were ordered to be served concurrently. The third was ordered to be served cumulatively upon the
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- first two. Terms of 2 months' imprisonment were imposed in respect of each of the offences the subject of the s 32 notice. These were ordered to be served concurrently with each other but cumulatively upon the term imposed on count 3. This gave rise to a total sentence of 6 years' imprisonment. The offender's appeal against sentence was dismissed.
32 In Burke v The State of Western Australia [2007] WASCA 210, the offender was convicted on one count of supplying MDMA (count 1), one count of possession of MDMA with intent to sell or supply (count 2) and one count of possession of methylamphetamine with intent to sell or supply (count 3). He pleaded guilty to counts 2 and 3 but was convicted on count 1 after a trial. He pleaded guilty, on a s 32 notice, to one count of not having a motor driver's licence and one count of possession of methylamphetamine. Count 1 involved 300 MDMA tablets weighing 73.2 g with a purity of 33%. Count 2 involved 200 MDMA tablets weighing approximately 49 g with a purity of 32%. Count 3 involved 27.89 g of methylamphetamine with a purity of between 11% and 46%.
33 At the time of his offending the appellant was 22 years old. He suffered from depression. He was sentenced, on count 1, to a term of 3 years and 4 months' imprisonment. On count 2 he was sentenced to a term of 1 year and 9 months' imprisonment to be served concurrently with the term imposed in respect of count 1. On count 3 he was sentenced to a term of 2 years' imprisonment to be served cumulatively upon that imposed on count 1. This gave rise to a total sentence of 5 years and 4 months' imprisonment. On the appeal, Wheeler JA (with whom the other members of the court agreed) said that, given the appellant's relative youth and good antecedents, the total sentence was one of 'significant length'. However, apart from correcting a mathematical error on the part of the sentencing judge (which resulted in a reduction of 2 months), the court declined to interfere.
34 In Ziino, the offender was convicted, after a trial, on two counts of supplying MDMA to another and one count of possession of MDMA. The first count (count 1) involved 55.26 g of MDMA with a purity of between 32% and 38%. The MDMA had a street value of around $9,900. The second count (count 3, count 2 having related to a co-offender) involved 199 MDMA tablets with a total weight of 54.9 g and a purity of around 37%. These tablets had an estimated street value of $9,950. The third offence (count 4) involved 4 g of MDMA.
35 The offender was 40 years old at the time of the offences. He was found to have been in the 'middle' level of the 'commercial drug
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- hierarchy'. He was sentenced to a term of 6 years' imprisonment in respect of count 1. The sentencing judge said that the offender should receive a similar sentence on count 3 but, because of totality considerations, he was sentenced to a term of 1 year's imprisonment to be served cumulatively. On count 4 the sentencing judge imposed a further 12 months' imprisonment to be served concurrently with the other terms. This resulted in a total aggregate sentence of 7 years' imprisonment. Leave to appeal was refused.
36 In the course of reviewing some of the cases in his judgment in Ziino, Owen JA (with whom Wheeler & Miller JJA agreed) referred to Olomi as providing an example of the limited utility which particular decisions in previous cases provide. He said that, in that case, a substantial discount for the early pleas of guilty was given and the offender was treated 'very leniently'. He also remarked that the parties in Ziino had not disputed that a comparison with sentences imposed in heroin cases was appropriate and that those cases would suggest that the sentence imposed by the sentencing judge on count 1 was within the range of sentences that could have been expected. He also said [32] that the sentencing judge in Ziino had noted that MDMA is classified in the 'high category' of prohibited drugs due to the negative impact on the community of its use and trade. Leave to appeal was refused.
37 In the present case the respondent was in possession, for the purposes of sale, of a very significant quantity of MDMA. I have said that the tablets weighed 249 g with a purity of 33% and that they had a street value of around $50,000. The cash and drug paraphernalia found at the respondent's home justified the sentencing judge's conclusion that he was a 'high side mid-level' dealer. His motive was solely one of personal profit. The respondent did not plead guilty. He showed no remorse. There was consequently little in mitigation other than his good antecedents (which, I have said, could not carry a great deal of weight in the case such as this) and the forfeiture of his lawfully acquired house. In these circumstances, and having regard for the range of sentences customarily imposed in cases involving MDMA (leaving aside, for the moment, the questions where that drug ranks in the drug hierarchy and whether that ranking is a relevant consideration), the sentence imposed was, as I have said, manifestly inadequate.
Ground 1
38 Ground 1 raises an issue that, so far as I am aware, has not previously been raised in this jurisdiction. The appellant contends that the
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- sentencing judge made, or applied, a harm-based assessment when sentencing the respondent and that he erred in doing so. Counsel for the appellant submits that the relative harmfulness of a drug (cannabis aside) is an irrelevant consideration when assessing the seriousness of an offence under s 6(1) or 7(1) of the Misuse of Drugs Act for the purpose of sentencing. That has not been the approach adopted in this jurisdiction until now. However, counsel for the appellant contends, relying upon the decision of the Victorian Court of Appeal in R v Pidoto [2006] VSCA 185; (2006) 14 VR 269 and upon what was said by the High Court in Adams v The Queen [2008] HCA 15; (2008) 82 ALJR 718, that this is the effect of the relevant provisions of the Misuse of Drugs Act and that this court should construe that Act accordingly.
39 Counsel for the respondent agreed that what was said in Adams is applicable to the Misuse of Drugs Act. He, too, said that it is not open to a court, when sentencing an offender for an offence under that Act, to have regard to the relative harm of the prohibited drug in question. However, that is an issue that requires independent consideration by this court.
40 Before dealing with Pidoto and Adams, it is necessary to consider what the practice of this court has been until now, and on what it has been based. It is also necessary to analyse the legislation considered in Pidoto and Adams, being, respectively, the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Customs Act 1901 (Cth), in order to assess to what extent, if any, decisions in respect of those statutes are of assistance in construing the relevant provisions of the Misuse of Drugs Act. It is important not to lose sight of the fact that the question raised by ground 1 is, in the end, one of construction of the latter Act.
The practice in this jurisdiction concerning MDMA offences
41 When considering the practice in this jurisdiction, it is appropriate to start with Robertson (1989) 44 A Crim R 224. That case concerned s 6(1) and s 34(1)(a) of the Misuse of Drugs Act, neither of which has since been materially amended. The offender had been convicted, under s 6(1), on three counts of either sale of MDMA or possession of MDMA with intent to sell or supply. He was sentenced to a term of 4 years' imprisonment on each count, to be served concurrently. He appealed against the sentence imposed. The Court of Criminal Appeal (Malcolm CJ, Pidgeon & Walsh JJ) remarked (224) that the application raised, for the first time in the Court of Criminal Appeal, 'the necessity to determine the appropriate penalty to be imposed for the sale of MDMA and the possession of MDMA with intent to sell or supply'.
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42 The court said (228) that, in drug cases, the appropriate length of sentence is governed by a number of factors. The first of these was said to be 'The likely deleterious effect of the drug'. The court quoted (228) - (229), with apparent approval, the following extract from Fox R and Frieberg A, Sentencing - State and Federal Law in Victoria (1985) 558 - 559:
Early drug legislation did not differentiate, or differentiated only in passing, between various classes of drugs. Where a number of separate drugs were subsumed under the one penalty, courts in different jurisdictions adopted different approaches. One, applied by Victorian courts, was to assume that all drugs were of equivalent danger, this being inferred from the fact that the legislature had grouped them together. However, if the defendant wished to mitigate the sentence on account of the less deleterious nature of the drug, it was for him to introduce evidence in support. In South Australia, on the other hand, the courts did not commence with a presumption that all drugs were equally toxic, but required evidence in each case as to the nature and strength of the drug in question. Eventually they took judicial notice of the fact that not all drugs were equally harmful. Modern legislation displays a mixed approach to this problem.
43 The court next referred to R v Cronn and Bladon (1983) 34 SASR 555. In that case the South Australian Court of Criminal Appeal had re-assessed the harmfulness of amphetamines. It decided that, henceforth, they should be treated as 'in the middle range of drugs which attract the maximum sentence of 25 years' imprisonment, being more serious than hashish but less serious then heroin' (556, King CJ, Mohr J concurring). After referring to this, and a number of other matters (including expert evidence placed before it concerning MDMA), the court in Robertson said (230):
In our view, having regard to the evidence of Mr Richard Langham and the information set out in the literature provided by the Crown on the hearing of this application, we are of the opinion that MDMA (Ecstasy) should be treated as in the middle range of drugs which attract the maximum sentence of 25 years imprisonment, being more serious than cannabis resin derivatives, but less serious than LSD, cocaine or heroin.
44 In arriving at that conclusion, the court made no analysis of the relevant provisions of the Misuse of Drugs Act in order to determine whether 'the likely deleterious effect of the drug' was a relevant consideration under that Act. Instead, it appears to have assumed the correctness of the approach taken by South Australian courts, as summarised by Fox and Frieberg and as reflected in a number of the South Australian cases (although, since 1984, sentencing courts in South
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- Australia had been required by s 44(a) of the Controlled Substances Act 1984 (SA) to take into account the nature of the substance or goods involved in the commission of the offence).
45 Since Robertson, courts in this State have consistently taken into account the deleterious effects of prohibited drugs. They have also confirmed the existence of a hierarchy based on what were understood to be relative degrees of harmfulness. Examples are R v Reppucci (Unreported, WASCA, Library No 940404, 5 August 1994) 19 (Malcolm CJ, Franklyn & Anderson JJ concurring); Bellissimo; Krakouer v The Queen (1996) 16 WAR 1, 21; Darwell v The Queen (1997) 94 A Crim R 35, 40; and Guy v The Queen [2004] WASCA 9; (2004) 143 A Crim R 428 [31] (Templeman J, Wheeler & Wallwork JJ concurring). In Darwell, MDMA, and the amphetamine group generally, were re-assessed by Malcolm CJ, Kennedy and Franklin JJ. Methylamphetamine was found to be 'at the high end of the scale of seriousness in the hierarchy of prohibited drugs'. That drug was said (40) to be close enough to heroin and cocaine to be included in the same category. The court also said that 'it may now be appropriate to reconsider the classification of MDMA or ecstasy in the light to evidence regarding its deleterious effects. In Guy [31] (Templeman J, Wheeler & Wallwork JJ concurring), MDMA was referred to as 'part of the group of drugs known generally as amphetamines'. Templeman J, using the words of Malcolm CJ in Darwell, said that this group of drugs was regarded as close enough to heroin and cocaine to be included in the same category.
The Customs Act
46 At the time of the first decision in Adams, s 233B of the Customs Act made it an offence for a person to have possession of, or carry out certain actions in relation to, prohibited imports of narcotic goods without reasonable excuse. A 'narcotic good' was defined in s 4 as 'a narcotic substance described in the first column of Sch VI' to the Act. Two other columns in that schedule were respectively headed 'Trafficable Quantity' and 'Commercial Quantity'. Under the heading 'Trafficable Quantity', a weight was specified for each of the listed substances. Only some of the substances had weights listed next to them in the column headed 'Commercial Quantity'. Penalties were provided by s 235 of the Act (now repealed). These varied, depending upon the quantity of the drug involved. Where the quantity involved was not less than the commercial quantity, the offender was liable to life imprisonment and a fine not exceeding $750,000. Where the quantity involved was not less than the trafficable quantity, the maximum penalty was one of 25 years'
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- imprisonment and a fine not exceeding $500,000. In any other case the maximum penalty was a term of 2 years' imprisonment and a fine not exceeding $250,000.
47 These provisions were considered by Hulme J (with whom Bell J agreed) in R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284. He said [40] - [43], [45], [46]:
Common experience would suggest that there would have been a number of factors taken into account in the decision as to the weight(s) to be specified for the substances listed. Both potency and the potential of each drug to do harm are likely to have been included. It is not unlikely that there will have been some expert opinion considered in the determination of the substances and quantities specified. But whatever the reasons, the terms of the legislation to which I have referred amount to a clear statement as to the seriousness which Parliament attributes to possession of, or dealing with, not only the substances listed, but also particular quantities of those substances.
To take a few of the substances by way of example, Sch VI specifies as the minimum trafficable and commercial quantities the following:-
| Trafficable | Commercial |
| 100 grams | 100 kilograms |
| 2 grams | 2 kilograms |
| 2 grams | 1.5 kilograms |
| 0.002 grams | 0.002 kilograms |
| 0.5 grams | 0.5 kilograms |
In the face of this sort of detail it seems to me impossible, consistently with ordinary principles of statutory construction, for the Courts to say simply that heroin or cocaine are worse, or dealing in them more heinous, than dealing in MDMA. Quantities have to be taken into account and, by providing the same penalties for dealing in the respective trafficable quantities of each, Parliament has indicated that it regards dealing in, for example, 2 grams of cocaine, 2 grams of heroin, 0.002 grams of Lysergic Acid, and 0.5 grams of MDMA as seriously as one another. On a weight for weight basis, the importation of MDMA is more to be discouraged than
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- importation of either cocaine or heroin. Similarly, dealing in 1.6 kilograms of heroin, is more serious than dealing in a similar quantity of cocaine. The grouping of offences which occurred in R v Wong [(1999) 48 NSWLR 340] is a recognition of that fact.
While the situation may well be different if the statutory provisions took a different form, given the particularity of quantities which place a drug in one or other of categories for which different penalties are provided, it seems to me that the seriousness of an offence relating to a particular drug is to be judged primarily by the statutory provisions relating to it rather than by some impression, whether or not based on evidence in the particular or other cases, of how deleterious that drug is in comparison with others. Thus the seriousness of an offence relating to MDMA should be determined by reference to the statutory provisions relating to it, rather than by some comparison with heroin or cocaine.
…
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 just as, for example, an alteration in the frequency of offences of a particular type is. In that connection, statements as to where in the spectrum of illegal drugs, a particular drug falls, based no doubt on substantial judicial experience as to the impact of drugs falling within one category or another, have the potential to assist the sentencing process. Any departure from accepted wisdom in this regard may well be an indication of error and inspire a careful look at any sentence which follows. However, with respect to the remarks of Hidden J in R v Spillane [[1999] NSWCCA 280], such statements are not propositions of law, departure from which, of itself, constitutes error. A fortiori is this so if the judicial characterisation differs from the clear implication to be found in the particular statutory provisions under which a charge is preferred.
Furthermore, such considerations are necessarily subsidiary to the terms of the relevant statute.
48 Ipp JA agreed with Hulme J, but added some comments of his own. These included the following [17] - [19]:
I agree with Hulme J that a primary factor in determining the appropriate sentence will be the relevant statutory regime, and the sentencing tribunal will have due regard to the maximum penalty prescribed for the particular drug in question.
With respect to those who have expressed different views, I do not think that a person who commits a mid-range drug offence is entitled to a discount in comparison with the sentence that would be imposed for a similar offence, relating to heroin or cocaine, merely on the ground that a mid-range drug is a less harmful substance.
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- Where the maximum penalty for an offence involving one drug is the same as that for an offence involving another, it may be said in a very general sense that there is an equivalence between the two offences. But that will not be a particularly helpful observation as the quantities of the drugs involved will almost certainly differ, and the criminality to be attributed to the conduct involving a particular quantity of one drug will almost certainly differ from that involving a like quantity of the other drug. Accordingly, it will usually be futile to compare sentences imposed for one offence with another.
49 Poon was applied in R v Dang [2005] NSWCCA 430, in the context of an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). In that case Howie J (with whom Studdert & Whealy JJ agreed) said [29]:
This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: R v Nai Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284; R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493. The Drug Misuse and Trafficking Act does not distinguish in any way between cocaine and methylamphetamine: the maximum penalty for offences involving the two drugs is the same, as are the prescribed quantities.
50 Poon and Dang have since been re-considered in R v Corbett [2008] NSWCCA 42, in the context of drug offences contrary to Pt 9.1 of the Criminal Code Act 1995 (Cth). By the time that Corbett was heard, the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 had come into effect. That had moved the offence provisions relating to narcotic substances from the Customs Act to the Criminal Code Act. The structure of Pt 9.1 of the Criminal Code Act is the same as it was in the Customs Act. Harrison J (with whom McLellan CJ at CL agreed) said in this respect that:
[Part 9.1 of the Criminal Code Act] distinguishes between drugs in prescribing the threshold trafficable and commercial quantities, but otherwise makes no distinction as to the applicable maximum penalties. This type of regime is founded upon the legislature having made its own differentiation between various border controlled drugs (narcotic substances) in deciding upon trafficable quantities and commercial quantities of those that have been designated as a prescribed border controlled drug. According to the Crown's submission, it is not in these circumstances appropriate for a sentencing judge to superimpose a further differentiation between substances onto this regime.
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51 After referring to what had been said in a number of the cases, including Dang; R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493; and Poon, Harrison J went on to say [45] - [47]:
Section 314.4 identifies no less than 155 border controlled drugs and quantities. The only apparent common denominator between or among the substances listed in the section would appear to be the fact of that listing. So, for example, even though there is a clear and obvious connection between cannabis and cannabis resin, there is no such connection between either of those substances and cocaine or methadone. Similarly there is no obvious connection between morphine and mescaline. The substances are only connected by the common thread of legislative proscription.
Nor are any of the substances graded or ranked in comparison to any other or others, in terms of their known or perceived harmful effects, unit strength, addictive qualities, marketability, cost, price, availability, scarcity or any other apparently relevant characteristics. The only form of differentiation between or among substances appearing in the schedule is to be found in the marketable and commercial quantities allocated to them. As soon as a particular substance reaches a particular marketable or commercial quantity, it is to be treated, for the purposes of the Criminal Code, as being identical to every other substance in the schedule of a marketable or commercial quantity respectively. Importation of a commercial quantity of Dipipanone (2kg) exposes the importer to the same potential penalties of life imprisonment or a fine of $825,000 or both as the importer of .005kg of 3-Methylthiofentanyl.
Unfortunately, neither the Criminal Code in general nor s 314.4 in particular gives any insight into the process by which or pursuant to which it was determined how or why the listed substances should variously be criminalised, depending upon the quantity concerned. In terms of a sentencing exercise, however, this would appear to have at least one important consequence. Except by reference to quantity, there would appear to be no scope for judicial or forensic enquiry about the individual characteristics of any of the listed substances. For example, even with the benefit of the most highly respected expert opinion that listed substance 'A' is socially, pharmacologically, or in every other relevant way wholly benign or alternatively exceedingly dangerous, there does not appear to be a legitimate avenue for the use of that information to inform the sentencing discretion or to substantiate a submission. In terms of a House v The King analysis, it seems to me that such opinion would be extraneous or irrelevant and immaterial. Regardless of what view one might have about it as a matter of policy, there would appear clearly to be a legislative foreclosure upon the ability of this Court to differentiate between the listed substances other than by reference to the quantities involved. The learned sentencing judge clearly fell into error on this analysis to the extent that he explored issues intended to ascertain 'judicial experience' and 'accepted wisdom' on the characteristics of GBL.
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52 The third judge in Corbett, Hulme J, after referring to what he had said in Poon, went on to say [7], [8]:
From time to time particular offences have become more common, either throughout the state or in particular towns or parts of it. It is an accepted practice for criminal courts to respond to such increases in offending of a particular type by increasing sentences for such offences and this without any change to the legislative proscription of the conduct or any increase in the penalty prescribed. I acknowledge that the topic of the frequency of offending may not be intended to be encompassed within references to the 'harmfulness of the drug'. However, one would have expected that Parliament in setting the penalties and quantities that it has would have reflected in them not merely any undesirable physical consequences of the use of a particular drug but also matters such as the impact of the drug in terms of the ease and frequency of dealings in it and the magnitude of the rewards for doing so.
Secondly, it is not uncommon in provisions of the New South Wales Crimes Act to find a reference to 'aggravating circumstances', a definition of such circumstances so as to include conduct or events of disparate types, and the imposition of higher maximum penalties if any of those circumstances are present. But the fact that such an increased penalty is attracted whichever of the circumstances of aggravation is present has not led the courts to the conclusion that each should be judged as harmful as the others and an offence involving one as inherently as serious as an offence involving another. Of course, section 314.4 and similar schedules in other statutes in their references to quantities include a degree of definition not generally possible when circumstances of aggravation are being discussed and regard must be had to that definition. Nevertheless it does not seem to me that the definition leads to the conclusion that sentencing courts are required to depart from the degree of flexibility they adopt in other circumstances. So long as the statutory provisions are given primary attention, other factors may be taken into account in judging the seriousness of dealing in one type of drug rather than another. Thus I do not agree with the statement of Harrison J that, 'As soon as a particular substance reaches a particular marketable or commercial quantity, it is to be treated, for the purposes of the Criminal Code, as being identical to every other substance in the schedule of a marketable or commercial quantity respectively'.
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
53 Section 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) makes it an offence to traffic '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 one of life imprisonment plus a fine of not more than 5,000 penalty units. Section 71AA of that Act makes it an offence to traffic in 'a quantity of a drug of dependence … that is not less than the commercial quantity
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- applicable to that drug of dependence … '. That offence carries a maximum sentence of 25 years' imprisonment. Section 71AC makes it an offence to traffic 'in a drug of dependence'. That offence carries a maximum term of 15 years' imprisonment.
54 The words 'drug of dependence' are defined in s 4 of the Act. That definition takes the reader to sch 11 of the Act. This lists a large variety of drugs. The drugs of dependence are those specified or included in a class of drugs specified in column 1 of Part 1 or column 1 of Part 3 of that schedule and any fresh or dried parts of any plants specified in column 1 of Part 2 of that schedule. The terms 'commercial quantity' and 'large commercial quantity' are defined in s 70 of the Act. The definitions once again take the reader to sch 11, which specifies quantities of pure drug under these respective headings in columns 2 and 3. Part 3 of sch 11 deals with drugs of dependence that are contained in or mixed with another substance or with some other drug or drugs of dependence. Subparagraph (c) of the definition of 'commercial quantity' provides that:
(c) In relation to a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule 11 -
(i) if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 2A of that Part of the Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or
(ii) in any other case means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;
(d) In relation to two or more drugs of dependence, means an aggregated commercial quantity of those drugs[.]
- Similar provisions are made in subparagraphs (b) and (c) of the definition of 'large commercial quantity', save that the definition refers to different columns in Part 3 of sch 11.
55 These, and other, provisions of the Drugs, Poisons and Controlled Substances Act were considered by the Victorian Court of Appeal (Maxwell P, Callaway, Buchanan, Vincent & Eames JJ) in Pidoto. In that case, the court was confronted with the issue whether it was relevant for the sentencing judge to consider the harm associated with the drug the subject of the trafficking charge in that case. The court said [2] that this gave rise to two related questions, as follows:
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- (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?
56 Maxwell P, Buchanan, Vincent and Eames JJA, in a joint judgment, summarised their conclusions as follows [3] - [6]:
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.
57 The majority said [8] that, so far as the threshold question was concerned (whether the harmfulness of the drug was a relevant consideration), they shared the view expressed by Winneke P (with whom
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- Phillips JA & O'Bryan AJA agreed) in R v Casey [2002] VSCA 117 that it was:
… non-productive in sentencing offenders to speak of graduations of seriousness depending upon the substance involved. Courts should always 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.
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 R v Tsolacos (1995) 81 A Crim R 434, 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 … '.
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 … (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 (See eg R v Darwell (1997) 94 A Crim R 35 at 40; R v Budiman (1998) 102 A Crim R 411 at 416, and the cases there cited.). Had such a legislative scheme been implemented, the gradation in maximum penalties would then have been fixed according to harmfulness, not quantity.
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- 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 Sch 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) …
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
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- province of expert advisory committees and the ministers they advise, not of judges and magistrates.
60 The majority went on to examine the legislation in the United Kingdom (Misuse of Drugs Act 1971 (UK)), and in New Zealand (the Misuse of Drugs Act 1975 (NZ)) which adopts a harm-based classification. They went on to say [35]:
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.
61 Next, the majority said [37] that they saw no parallel between the question under consideration and that addressed by the High Court in Ibbs v The Queen (1987) 163 CLR 447. They said, in this respect [37] - [39]:
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 an appropriate penalty 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 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.'
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 Sch 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.
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62 The majority went on to say [42] and [43]:
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 (ss 71, 71AA and 71AC) … 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.
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.
63 The majority then said [49]:
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.
64 They went on to say [53] that 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. Then, after referring to Cronn (where the court had categorised a drug as falling within 'the middle range' of seriousness), they said [58] - [63]:
(2) A person who is convicted of a crime referred to in subsection (1)(a) -
(a) being a crime -
(i) relating only to cannabis; and
(ii) not relating to cannabis resin or any other cannabis derivative or to any prohibited drug or a prohibited plant other than cannabis,
is liable, if sentenced by the District Court or the Supreme Court, to a fine not exceeding $20 000 or to imprisonment for a term not exceeding 10 years or both; or
(b) is liable, if sentenced by a summary court, to a fine not exceeding $5 000 or to imprisonment for a term not exceeding 4 years or both.
(1) If a person is charged before a court of summary jurisdiction with -
(a) an offence under section 6(1) in respect of a quantity of a prohibited drug referred to in Schedule III that is less than the quantity specified in that Schedule in relation to that prohibited drug;
(b) an offence under section 7(1) in respect of a number of prohibited plants of a particular species or genus referred to in Schedule IV that is less than the number specified in that Schedule in relation to that species or genus; or
(c) an offence under section 7A(1),
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- then, except in a case where the person is charged with conspiring to commit the offence, the summary conviction penalty for the offence is that set out in section 34(2)(b).
(2) A court of summary jurisdiction that tries a person summarily for a charge of an offence referred to in subsection (1) must be constituted by a magistrate sitting alone.
(3) If a person charged before a court of summary jurisdiction with an offence that may be dealt with summarily under subsection (1) is, under section 5 of The Criminal Code, committed for trial or sentence in respect of the offence, the court to which the accused is committed may deal with the charge despite -
(a) the quantity of the prohibited drug to which the charge relates being less than the quantity specified in Schedule III in relation to that prohibited drug; or
(b) the number of prohibited plants of a particular species or genus to which the charge relates being less than the number specified in Schedule IV in relation to that species or genus.
84 The relevant provisions of s 5 of the Criminal Code (WA) read as follows:
(1) This section applies if -
(a) a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and
(b) a person (the 'accused') is charged before a court of summary jurisdiction (the 'court') with committing the
- indictable offence in circumstances where the summary conviction penalty applies to the offence (the 'charge').
- (2) Despite section 3(2), the court is to try the charge summarily unless -
(a) on an application made by the prosecutor or the accused before the accused pleads to the charge, the court decides under subsection (3) that the charge is to be tried on indictment; or
(b) this Code or another written law expressly provides to the contrary.
(3) The court may decide the charge is to be tried on indictment if and only if it considers -
(a) that the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused;
(b) that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and the accused is to be tried on indictment for one or more of those other offences;
(c) that a co-accused of the accused is to be tried on indictment;
(d) that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and others and the accused or one of the others is to be tried on indictment for one or more of those other offences; or
(e) that the interests of justice require that the charge be dealt with on indictment.
…
(8) If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.
(9) If the court -
(a) convicts the accused of the offence charged after a plea of guilty or otherwise; and
- (b) considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,
- the court may commit the accused to a court of competent jurisdiction for sentence.
(10) An accused who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.
…
85 Section 11 of the Misuse of Drugs Act enacts a presumption of intent to sell or supply. That section provides that, for the purposes of s 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in sch V in relation to the prohibited drug. Section 11(b) makes similar provision (referring to sch VI) for the purposes of s 7(1)(a). Schedule V lists a number of prohibited drugs. In each case the amount in grams required to give rise to the presumption is stated. For example, in the case of lysergic acid diethylamide or LSD, the amount is 0.002 g, in the case of cocaine, heroin and methylamphetamine, the figure is 2 g and in the case of cannabis resin the figure is 20 g. In each case the prescribed amounts were arrived at after consultation with the Department of Health and Medical Services and the Government Health laboratories. They also accord substantially with recommendations of a 1976 joint Police and Health Minister's Conference: Parliamentary Debates, above, 2363. In his second reading speech (Parliamentary Debates, above, 2363), the Minister said that the provisions of the Bill were in line with the spirit of some of the recommendations made by the Australian Royal Commission of Inquiry into Drugs. That Commission's report (Report of the Australian Royal Commission of Inquiry Into Drugs, The Williams Report (1980)) mentioned four factors affecting the determination of the maximum penalty that should apply to a particular offender. These were:
i. the quantity in which the drug involved was present;
ii. whether the drug was cannabis;
iii. whether the drug was held for sale or other commercial dealing; and
iv. whether [the offence] is a 'first offence' [as defined] …
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- Factors i to iii are reflected in the structure of the Misuse of Drugs Act: see s 6, s 7, s 9, s 11 and s 34. The fourth is a well recognised sentencing principle of universal application.
86 The second reading speech in respect of the Misuse of Drugs Bill (Parliamentary Debates, above, 2366) also discloses that the legislation was not targeted at drug addicts but was 'aimed at cutting off the market supply' and 'aiming at those so far protected profiteers behind the scenes'.
87 Section 32A of the Misuse of Drugs Act (inserted into the Act by the Misuse of Drugs Amendment Act 1990) provides for the making of a drug trafficking declaration. Subsections (1) and (3) of that section read as follows:
(1) If a person is convicted of -
(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -
(i) serious drug offences;
(ii) external serious drug offences; or
(iii) offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;
or
(b) a serious drug offence in respect of -
(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or
(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,
- the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
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- (3) In this section -
'external serious drug offence' means -
(a) offence against a law of the Commonwealth, of another State, or of a Territory, which offence is prescribed to correspond to a crime under section 6(1), 7(1), 33(1)(a) or 33(2)(a); or
(b) offence against -
(i) the repealed section 233B of the Customs Act 1901 of the Commonwealth; or
(ii) a law of the Commonwealth, which offence is prescribed to correspond to an offence against that repealed section;
88 The quantities specified in sch VII and sch VIII were said by the responsible Minister, in the course of his second reading speech in respect of the Misuse of Drugs Amendment Bill 1990 (Western Australia, Parliamentary Debates, Legislative Assembly, 22 November 1990, 7653), to reflect what 'would usually be … a street value of approximately $15,000'. That amount was said to be 'an indication that large scale drug activities are being carried out from which substantial profits would be derived'.
89 The making of a drug trafficking declaration has significant consequences. Section 8 of the Criminal Property Confiscation Act 2000 (WA) (which replaced the Crimes (Confiscation of Profits) Act 1988 (WA)) provides that, when a person is declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act as a result of being convicted of a confiscation offence (defined to mean, amongst other things, an offence against a law in force in Australia that is punishable by imprisonment for 2 years or more) that was committed after the commencement of the Act, the following property is confiscated:
(a) all the property that the person owns or effectively controls at the time the declaration is made;
(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
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Analysis
90 There are significant differences between the Misuse of Drugs Act, on the one hand, and the Victorian and Commonwealth legislation considered in Poon, Corbett, Pidoto and Adams, on the other. The Customs Act (and now the Criminal Code Act) considered in Poon, Corbett and Adams sets a range of penalties that are determined by reference to specified quantities of different drugs. The Drug, Poisons and Controlled Substances Act considered in Pidoto does likewise. The Misuse of Drugs Act, on the other hand, although providing uniform maximum penalties (save in the case of cannabis) does not distinguish between different quantities of the various drugs listed in setting those penalties, other than by s 9. As will be apparent, that section identifies the offences that may be charged before a court of summary jurisdiction (and, hence, be subject to the lower maximum penalties provided for by s 34(2)(b), unless those offences are dealt with pursuant to s 5(3) or s 5(9) of the Code). Section 9 aside, the quantities specified in the Misuse of Drugs Act are relevant only for the purposes of s 11 (the presumption of intent to sell or supply) and the making of a drug trafficking declaration under s 32A(1).
91 The appellant's contention that differences in the relative harm caused by different drugs (with the exception of cannabis) are irrelevant for the purpose of sentencing under the Misuse of Drugs Act rests essentially upon the following propositions:
(a) cannabis aside, the maximum penalties provided by the Act do not discriminate between different drugs;
(b) summary jurisdiction, and the potential application of summary penalties, varies depending upon the differing quantities of the drugs in question; and
(c) the difficulties facing courts attempting to make a harm-based assessment are so great that the legislature could not have intended that they should undertake a task of that kind.
92 If proposition (a) is considered in isolation, it is plain from cases such as Ibbs that the inclusion of several categories of possible offending under one provision imposing a single maximum penalty carries no implication that each category is as heinous as another. As the court in Ibbs pointed out (452), heinousness of conduct 'depends not on the statute defining the offence but on the facts of the case'. The fact that dealings in different drugs carry the same maximum penalty says no more, of itself, than that the legislature envisaged that, in each case, the
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- circumstances of the particular offending might be such as to justify a sentence of imprisonment for 25 years.
93 If proposition (b) is looked at in isolation it might be thought to provide a slender basis for inferring a legislative intention that the relative harm caused by a particular drug is an irrelevant consideration. There are many indictable offences in the Code (and elsewhere) in respect of which a summary conviction penalty is provided. Examples are assaults occasioning bodily harm (s 317), assaults with intent (s 317A), burglary (s 401), fraud (s 409) and various forms of stealing and like offences (s 426). I have earlier set out the provisions of s 5 of the Code that require a court of summary jurisdiction, when dealing with an offence charged in that court in respect of which provision has been made for a summary conviction penalty, to try the charge summarily unless either s 5(2)(a) or s 5(2)(b) is applicable (s 5(2)) and to sentence the offender in accordance with the summary court penalty unless it commits the accused to a higher court for sentencing (s 5(8)). The only distinction between the ordinary run of offences of that kind and offences under the Misuse of Drugs Act is that, in the case of s 9, the legislature has chosen to limit summary jurisdiction by reference to maximum quantities of prohibited drugs. Moreover, even these quantities are not necessarily determinative. The summary court may decide that, notwithstanding the quantity involved, the offence is so serious that a greater penalty is required: s 5(3)(a) and s 5(9)(b) of the Code.
94 Proposition (c) has not troubled the courts in this jurisdiction in the past: see, for example, Robertson, Reppucci, Bellissimo, Krakouer and Darwell.
95 However, these propositions cannot be looked at in isolation. They must be looked at together, taking into account the context, structure and evident purpose of the relevant provisions of the Misuse of Drugs Act and also what has been said by the High Court or in other jurisdictions, to the extent that it is capable of application to the Misuse of Drugs Act.
96 As to context, and what has been said elsewhere, there is no single view of what is the preferred approach to the assessment of penalty for offences involving trafficking in drugs. Some suggest that 'courts have long recognised that in assessing the objective seriousness of a drug offence it is necessary to have regard to the drug's potential for harm': see Zahra P, Arden R, Ierace M, Schurr B, Drug Law in New South Wales (2nd ed, 1998) [11.3.3] and cases there referred to. However, others refer to the difficulties, for courts, in assessing this kind of harm and point to
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- the many forms of harm associated with the drug trade. For example, the Model Criminal Code Officers Committee (MCCOC), in their report, 'MCCOC/SCAG Draft Model Criminal Code, Chapter 6, Serious Drug Offences, October 1998', suggest (page 14) that the 'illicit traffic in cannabis is associated with the same evils of corruption, violence and financial derelictions of the black market economy as the illicit traffic in heroin or amphetamines'. The authors of that report distinguish between harm to users, on the one hand, and more general harm caused by traffickers, on the other, and say that, when trafficking or commercial production is at issue, rather than offences of use, there is no justification for distinguishing, for example, between cannabis and other controlled drugs. They say, in this last respect (page 15):
Reconsideration of the issue has not persuaded the Committee to depart from its view that cannabis traffickers should face the same penalties as those who traffic in other controlled drugs. The history of corruption, violence and murder associated with commercial cannabis production and distribution in Australia run contrary to any suggestion that the evils associated with commercial cannabis trafficking are of a lesser order than those associated with the traffic in heroin.
• the profit expected from illegal activity,
• the damage to the community, including:
- financial impact through the functioning of a black market and the diversion of funds from legitimate to illegal business enterprise,
- flow on crime such as property crime to finance use, and crimes of violence resulting from market competition and disputes;
• the damage done to the individual user.
98 The Minister's second reading speech at the time of the introduction of the Misuse of Drugs Bill provides limited assistance in divining the legislative purpose underpinning the relevant provisions of the Misuse of Drugs Act. I have said that the legislation was aimed at 'cutting off the market supply' and at 'profiteers behind the scenes'. I have also said that, when dealing with the jurisdictional issue, the Minister did no more than
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- summarise the effect of s 9 of the Bill. Also, I have mentioned that the Minister said that the provisions of the Bill were in line with the spirit of 'some' of the recommendations made in the Williams report. Unfortunately, he did not say which recommendations. However, as I have earlier pointed out, it seems that three of the four factors identified by the Williams report as affecting the determination of the maximum penalty that should apply to a particular offender found their way into the scheme and structure of the Act (and that the fourth was anyway applicable). As will be apparent, these focused on the quantity of the drug, whether it was cannabis and whether it was held for sale or commercial dealing. I have also mentioned that that structure is reflected in s 6, s 7, s 9, s 11 and s 34 of the Misuse of Drugs Act.
99 Further (but also limited) assistance is provided by the explanatory memorandum to the Misuse of Drugs (Methylamphetamine) Amendment Bill 2007 (WA). That Bill proposed an amendment to Sch III of the Misuse of Drugs Act which, as I have said, is relevant to the determination of the court of trial. The amendment altered the quantity of methylamphetamine that could be the subject of an offence tried summarily in a magistrate's court. The material part of the explanatory memorandum reads as follows:
Currently, if one is in possession of an amount of less than 6.0 grams of Methylamphetamine, the matter can be determined summarily in a Magistrates Court.
That is in contrast to Item 11 of the Schedule III, which determines that if one is in possession of an amount less than 4.0 grams of Amphetamines the matter can be determined summarily in a Magistrates Court.
Methylamphetamine is now much more potent than it has been in recent years, with new era drugs evolving onto our streets in the form of 'Ice', 'Crystal Meth' and 'Rock' with a purity of somewhere between 80-90%, and in the case of 'Crystal Meth' or 'Rock', it is harder to cut and has significant effects on users.
Amphetamine has a much lower purity rate and is far less volatile than these 'new era' drugs.
Methylamphetamine is a scourge, accounting for a vast number of crimes being committed in our society.
The intent of this bill is to have continuity between the possession of Amphetamine and Methylamphetamine, so that our Law Enforcement Officers dealing with drug offenders can charge without having to differentiate the weight of the two prohibited drugs before processing offenders to the appropriate Court.
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- Potentially, an Offender in possession of 5.9 grams of Methylamphetamine would be dealt with summarily in a Magistrates Court and face a significantly reduced sentence.
Whereas if that same offender was in possession of 5.9 grams of Amphetamine they would be liable, if sentenced by a District Court, to a fine of up to $100,000 or to imprisonment for a term not exceeding 25 years or both.
Therefore, I propose that this matter be given serious consideration by members in the fight against drugs.
100 The explanatory memorandum highlights the significance of quantity of the drug concerned to the issue of jurisdiction and to that of penalty. It also demonstrates that the legislature has taken relative harm to users into account in setting the quantities for these purposes. It is relevant, in this respect, to note that the quantity of MDMA specified in Sch III is also 4 g (as is the quantity of cocaine). No quantity is specified for heroin. Consequently an offence involving a dealing in that drug cannot be tried summarily.
101 There is accordingly weight in the contentions advanced on behalf of the appellant. The uniformity of maximum penalties in respect of drugs other than cannabis (and in the case of offences dealt with summarily, in respect of drugs other than heroin) and the fact that the jurisdictional divide is quantity based, when taken together with the specialist nature of the PAC and the NDPSC (as the bodies having responsibility for the relevant schedules) is suggestive of an intention that the courts were not required to embark upon an investigation of their own into issues of relative harm (especially when regard is had to the difficulty of doing so). Notwithstanding this, I am not persuaded that these contentions are so compelling that the long-standing practice in this jurisdiction should be overturned by concluding that relative harm is a mandatory irrelevant consideration under the Misuse of Drugs Act. The reasons of the majority in Pidoto, and of the High Court in Adams, concerning the statutory schemes there considered do not have the same force when considered in the context of the different provisions of the Misuse of Drugs Act, where the only quantitative provisions affecting penalty are those that go to jurisdiction.
102 However, it seems to me, for a number of reasons, that relative harm to users, although not a mandatory irrelevant consideration, will not ordinarily be a factor to which much weight should, or can, be given.
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103 As the High Court pointed out in Adams, harm to users and society is a protean concept, with the social evils of trading in illicit drugs extending far beyond the physical consequences to individual consumers. The effect of a drug on a user is not one on health only. As the majority pointed out in Pidoto, drugs affect the user's behaviour and social interactions in a wide variety of ways. Those, in turn, have the capacity to affect persons around the user, and even the general community, in a wide variety of ways having different social and economic costs that are not easily measured, at least in the absence of evidence (which will alter as knowledge and circumstances alter).
104 Even harm to a user is not easy to assess. As the majority in Pidoto said ([20] - [22]), this might encompass such matters as the likelihood and speed of dependency, the difficulty involved in breaking that dependency, physical and psychological harm (an area that is constantly being re-assessed as new research becomes available), the social effects of dependency and the probable behaviour of users while under the influence of the drug.
105 It is important also to bear in mind that harm will vary with the strength of individual doses, something that will not always be known to the user, or even the dealer. Moreover, additives with which drugs are mixed may or may not themselves be toxic. Whether or not they are and, if so, to what extent, may also not be known to the user, or even the dealer. Also, the experience of the courts has been, and evidence in this case suggests, that there is an increasing tendency towards poly-drug use. If users can be persuaded to try one drug, they can often be persuaded to try another. Illicit drugs are sometimes taken to counteract the after effects of other illicit drugs. Dealers in drugs may deal in a range of different drugs, depending upon supply and demand.
106 Consequently, when regard is had to the factors that I have identified, in particular the uniform maximum penalties contemplated by the legislature (subject to the limited exceptions specified), it is difficult to imagine that the legislature could have intended relative harm to be a matter of much significance for sentencing purposes. Even if the legislature had no opinion on that issue, for the reasons I have given it is difficult to see how the courts could make any reliable assessment of relative harm without the benefit of extensive evidence. Moreover, the assessment would endure only for so long as the evidence remained unchanged. The primary objective underpinning the legislation is undoubtedly that of deterring those who trade in drugs and that
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- consideration has, as I have stressed, always been accorded the greatest weight when sentencing drug offenders.
107 In the end, as I have earlier remarked, the real question is what sentence should be imposed by the court in respect of the particular offence before it, having regard to the maximum penalty provided for that offence and taking into account the circumstances of the offence (including prevalence) and of the offender and the need to deter those who traffic in any form of illicit drugs.
MDMA
108 Before leaving this issue, I should make some additional comments on the way in which offences involving MDMA have been dealt with in this jurisdiction. I should also comment on evidence that was placed before us concerning that drug.
109 Since the decision of the Court of Criminal Appeal in Darwell, each of methylamphetamine and MDMA has been categorised as being at 'the high end of the scale of seriousness in the hierarchy of prohibited drugs' and in the same category as heroin and cocaine: Darwell [40] (Malcolm CJ, Kennedy & Franklyn JJ concurring); Guy [31] (Wheeler J, Templeman J & Wallwork AJ concurring); Ziino [32] - [33] (Owen JA, Wheeler & Miller JJA concurring).
110 This categorisation has not always been uniformly applied on my reading of the cases, although, even putting to one side differences between offenders and offences, comparisons are not easy, as the purities of the respective drugs are not always stated. Also, where there are multiple offences, courts do not always approach the individual sentences in the same way as they would if the offence concerned was the only offence in respect of which the offender fell to be sentenced. There are also some exceptions to the general pattern of sentencing. One notable exception is Samuels, where the sentence for a large quantity of MDMA (315.8 g with a purity of around 21%) was less than that imposed for a much lesser quantity of methylamphetamine (23.5 g with a purity of 34%). However, the appeal in that case was only against the aggregate sentence of imprisonment imposed and the sentencing judge was the same sentencing judge who imposed the sentence in this case. The sentence may consequently have reflected his personal opinion concerning the lesser harmfulness of MDMA, an opinion that is not shared by other sentencing judges (or by the legislature) and which is contrary to the determination of the Court of Criminal Appeal in Darwell, since applied in this court.
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111 However, allowing for the limitations in this process of comparing cases, on my reading of them the cases seem generally to support the proposition that, since Darwell, MDMA has usually been treated as seriously, for the purposes of sentencing, as methylamphetamine, heroin and cocaine. That seems to me to be apparent from Sinagra-Brisca (where there were counts concerning both MDMA and methylamphetamine); Colangelo (MDMA and methylamphetamine); Olomi (MDMA and methylamphetamine); Vagh (methylamphetamine, LSD and MDMA) and (to some extent) Burke (MDMA and methylamphetamine).
112 I have said that the opinion of the sentencing judge conflicts with evidence concerning the drug. The appellant placed before us, by leave of a single judge of this court (and with the consent of the respondent), evidence relating to MDMA which, he suggested, was relevant if we should find it necessary to re-sentence the respondent. The evidence consisted of two affidavits. The first is by Associate Professor David Joyce. The second is by Detective Sergeant Brett Baddock.
113 Professor Joyce is a Professor of Pharmacology and Medicine at Queen Elizabeth II Medical Centre, Nedlands in Western Australia. He specialises in clinical pharmacology and toxicology. He suggests that MDMA's pharmacological effects are basically those of the amphetamine family, although less potent than amphetamine or methylamphetamine. He also suggests that MDMA users do not tend to repeat doses, and escalate the amounts of the dose, to the extent that methylamphetamine users may. That, he says, is because the users perceive that the 'socialising' effects of MDMA (its effects include increased self confidence, a sense of well-being, talkativeness, increased physical activity, an increased likelihood of involvement in risky behaviour and heightened interest in sexual activity) are not reproduced as well with repeated doses. However, he says that there is evidence that even the relatively modest exposures that occur during recreational use have long-term adverse effects on the brain.
114 Professor Joyce also says that MDMA can produce a syndrome known as severe amphetamine intoxication, as with any other amphetamine. He says that it can also produce a condition known as the 'serotonin syndrome', characterised by confusion, elevated body temperature, unstable cardiovascular function, destruction of muscles and kidney failure. This syndrome has a high mortality rate. Deaths from MDMA are reported wherever there is significant use. Serotonergic syndrome (which I take to be the same as serotonin syndrome) is more
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- likely with MDMA than with methylamphetamine. On the other hand, serious heart and circulatory disturbances are more likely with methylamphetamine.
115 Professor Joyce says that MDMA is a drug of dependence but has a lower dependence potential than methylamphetamine. He reports (contrary to the trial judge's understanding) that intoxication with stimulants (including MDMA) results in confidence, aggression, tendency to take risks and distrust of others that underlie the high rates of violent crime and traffic accidents that accompany stimulant use. However, he considers that it is possible that MDMA is less likely than the other common amphetamines to cause violence, because it is less likely to be used in high repeated doses. Stimulants, including MDMA, are now among the commonest drugs detected in Western Australian drivers apprehended on suspicion of drug intoxication, although they are usually present with other drugs that also have potential to affect driving.
116 Importantly, Professor Joyce suggests that it is likely that MDMA users will be attracted to potent amphetamine-type stimulants, like methylamphetamine, when MDMA fails to reproduce its effect. Among Western Australian drivers, methylamphetamine is one of the commonest drugs to accompany MDMA. He says that MDMA has a characteristic withdrawal state including social withdrawal, a sense of not feeling well, inattention, lack of energy, low mood and disturbed sleep (which may include protracted insomnia, excessive sleep or falling asleep suddenly), translating to increased accident risk as well as a tendency to self-treat with methylamphetamine.
117 Detective Sergeant Baddock is the team leader of the Illicit Drug and Clandestine Laboratory Investigation Team within the Organised Crime Squad, formerly known as the Drug Squad. He has had dealings with numerous illicit drugs, including methylamphetamine, amphetamine, LSD, heroin, MDMA, cannabis and steroids.
118 Detective Sergeant Baddock says that the purity of MDMA tablets can vary greatly from over 80% to less than 10%. He says that the usual purity at the time of use is around 30% to 40% and that it is common for MDMA tablets to contain other illicit drugs such as methylamphetamine, ketamine and manufacturing by-products. He has annexed to his affidavit reports by the Australian Crime Commission in respect of, amongst other drugs, MDMA for the years 2003 - 2004, 2004 - 2005 and 2005 - 2006. These reports confirm what Detective Sergeant Baddock has said. They also provide additional information. The reports, particularly the most
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- recent of them, reveal that Australia has the highest rate of MDMA consumption, per capita, in the world. This is estimated at approximately 100,000 tablets nationally, each weekend. MDMA is the third most common illicit drug used in Australia.
119 Historically, the majority of MDMA in Australia has been imported. However, in the last few years a number of clandestine laboratories have been detected. Research in 2006 revealed that the majority of regular MDMA users considered that drug as either 'very easy' or 'easy' to obtain. Seventy-two percent of respondents were able to purchase other drugs from the same source in conjunction with MDMA. The highest rates of recent MDMA use are believed to be amongst persons aged 20 to 29 years, who have also a tendency to engage in poly-drug use.
120 The reports also reveal that tablets sold under the guise of MDMA may contain various additives, including methylamphetamine. Some tablets may contain no MDMA at all. The report reveals that, although the capacity of users to discern substances has increased, substances other than MDMA, particularly methylamphetamine, will continue to be misrepresented as MDMA. The report records that the adaptability of criminal groups diversifying into drug markets and utilising established trafficking routes will also influence embarkation points for attempted importation.
121 It seems to me that this evidence supports the proposition that there is no basis for making any significant distinction, for sentencing purposes, between MDMA and other drugs such as methylamphetamine, amphetamine, heroin and cocaine, so far as there is scope for any such distinction. This is particularly so with respect to methylamphetamine.
Disposition of the appeal
122 That brings me back to the present case. I have already concluded that the sentence imposed by the sentencing judge was manifestly inadequate. In any event, the respondent must be re-sentenced because grounds 1 and 2 have been made out.
123 We were invited by counsel for the respondent, if we were to re-sentence the respondent, to take into account the disappointment and distress occasioned to him by the fact that his present entitlement to periods of home leave will necessarily be deferred if his sentence is increased. His parole will also be deferred in that event. These seem to me to be ordinary consequences of any successful State appeal in respect of which no special allowance is required. However, it is necessary to
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- take into account the usual principles applicable to State appeals: The State of Western Australia v Collier [2007] WASCA 250 [18] - [23] and Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260. These are applicable notwithstanding the enactment of s 41(4)(b) of the Criminal Appeals Act (inserted into that Act by the Criminal Law and Evidence Amendment Act 2008 (WA), which came into operation on 27 April 2008). The appeal in this case was commenced on 10 July 2007: see, in this respect, The State of Western Australia v Richards [2008] WASCA 134.
124 In the circumstances of this case, involving dealing in a substantial quantity of MDMA, for profit, by a person engaged in the 'high side mid-level' range of dealing, it seems to me that, in the absence of any plea of guilty or remorse, a sentence of 5 years and 6 months' imprisonment should now be imposed, after allowing for the operation of the transitional provisions. Were it not for the application of the principles applicable to State appeals and for the fact of the forfeiture of the respondent's lawfully acquired property (the appellant accepts that the appellant had, at the time of sentencing, accrued a right to have this taken into account in accordance with the law as it then stood), I would have imposed a longer term.
Conclusion
125 It follows that I would allow the appeal, set aside the sentence imposed by the sentencing judge and substitute, in lieu, a sentence of 5 years and 6 months' imprisonment, with effect from 7 June 2007, with eligibility for parole.
126 McLURE JA: I agree with Steytler P.
127 MILLER JA: I agree with Steytler P.
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