R v Pidoto & O'Dea [2006] VSCA 185

R v Pidoto & O'Dea [2006] VSCA 185 - VSCA 2006 case summary — Zoe

[24]

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

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

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

18 It would have been possible for Parliament in enacting (or later amending) the DPCS Act to create a hierarchy of trafficking offences based not on the quantity of the drug trafficked but on the harmfulness of the drug. Parliament might, for example, have adopted a three-level hierarchy of the kind which was in 1981, and is still, in force in both the United Kingdom and New Zealand.[10] (Some Australian courts have developed a hierarchy of their own, with drugs of dependence being classified as "high", "medium" or "low" according to the nature and extent of the harm caused.[11]) Had such a legislative scheme been implemented, the gradation in maximum penalties would then have been fixed according to harmfulness, not quantity.

19 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.

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

21 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.

22 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.

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

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

[41]

38 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".

39 In short, the whole structure of the trafficking provisions, and the very precise content of the relevant columns in Schedule 11, leads inevitably to the conclusion that, other things being equal, trafficking in a commercial quantity of drug of dependence A is no more nor less serious than trafficking in a commercial quantity of drug of dependence B.[31]

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

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

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

43 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.

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

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

Application to other DPCS offences

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

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

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

A practical impossibility

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.

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

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

52 Some substances, such as cannabis, which were widely regarded only a few years ago as not particularly harmful or potentially dangerous to the user, are now viewed with greater concern. In the South Australian case of R v Tideman[35], decided in 1976, Bray CJ described cannabis as having a "comparatively innocuous character". Since that time, there is evidence that the tetrahydrocannabinol content of the material available in the community has increased, and it has been recognized that a range of extremely serious physical and mental consequences can be associated with cannabis-use.[36] In 2006, it might well be concluded - on a careful consideration of the empirical evidence, and the research that has been conducted since 1976 into the characteristics and effects of cannabis, both long and short-term - that cannabis can no longer be described as "comparatively innocuous", even allowing for the comparative judgment involved.[37]

53 Of course, to the individual who experiences a psychotic response on ingesting cannabis, or the victim who is assaulted by a person acting under its influence, [38] any relative classification is entirely irrelevant. Such reactions may be less frequent, and the personal and social damage resultant from the use of the substance may be less severe, than is the case with other drugs, but there is a powerful argument that those who trade for financial advantage in a drug known to be potentially harmful should not be able to mitigate their conduct by arguing that the risks to users of that drug are statistically lower than those associated with other drugs.

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

[42]

"... [P]rosecutions with respect to dangerous drugs, in our view, stand altogether differently. A judge cannot begin to assess the evil or harm caused to society or to individuals by drug taking, drug handling, or drug distribution, until there are placed before him adequate details of the composition and strength of the drug in question and an authoritative and reliable description of its likely effects - long term and short term, psychological and physical. In some cases, it may be important for the judge also to be informed, in general terms, of the magnitude of the illegal operations of manufacturing or importing and supplying the dangerous drug to members of our community, and the difficulty of the control of those operations by law enforcement agencies.

Plainly, evidence upon many of these topics will not infrequently be irrelevant in the proof of the charge, but when the question of sentencing arises, it will be essential for evidence of this kind to be placed before the judge. It seems to us that it is the responsibility of the prosecution, in the first instance, to lead such evidence as is in their possession and will enable the sentencing judge to form an appreciation, not only of the prisoner's conduct, but also of the drug with which that conduct was concerned. In many cases, the presentation of such evidence will entail the calling of an expert who can offer an up-to-date evaluation of the plethora of facts and opinions emanating from doctors, scientists and social workers month by month all over the world. It is, in our view, unsatisfactory for a judge to find himself left to perform his own research and formulate his own opinions and conclusions upon such arcane matters. What we can read in books, journals and reports about drugs is no doubt useful as background and as providing the basis for suggestions for further enquiry, but it would, in our view, be entirely wrong if those readings were to take the place of sworn expert testimony, properly presented and tested."[40]

[47]

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

59 As we suggested earlier, questions arise as to whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user's behaviour and social interactions, or the overall social and economic costs to the community. Little assistance can be derived, in our view, from a consideration of classifications of seriousness employed by courts in the past which were, necessarily, based on limited experience and anecdotal evidence and appear not to have been informed by empirical studies or by the specialist knowledge now available.[44]

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

61 If some classification of seriousness is to be made on the basis of the perceived characteristics of particular drugs, this task should only be undertaken after clear identification of the criteria upon which the assessments are to be made. We do not regard the experience - individual and collective - of judges and magistrates as affording any basis whatever for a court to form, let alone act on, a view about the relative harmfulness of a particular drug. This is simply not a subject to which the doctrine of judicial notice has any application, less still the doctrine of precedent. After all, a conclusion about the harmfulness of a particular drug is a conclusion of fact.[45]

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

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

An important change, but not entirely novel

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

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

[65]

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

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

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

The sentence appeals

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

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

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

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

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

[75]

Re-sentencing

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

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

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

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

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

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

[76]

93 In my opinion, the sentencing discretion was reopened in both these appeals. If the learned sentencing judge was entitled to differentiate between ecstasy and other drugs of dependence, in a way that worked against the appellants' interests, he was obliged to warn counsel that he proposed to take that course. The matters adverted to in the latter part of the passage set out at [81] above went beyond a matter of notoriety or obviousness of which no warning was required.[66] Alternatively, if his Honour was not so entitled, he took into account an irrelevant consideration in a material way.[67] In R. v. O'Dea there are also the reasons given by Maxwell, P., Buchanan, Vincent and Eames, JJ.A. at [84] - [87].

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

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

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

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

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

be followed.[72] I do not understand the joint judgment to be inconsistent with this paragraph.

[77]

[1] [2002] VSCA 117.

[2] At [27]. Winneke P cited with approval what had been said by Wood CJ at CL in R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355 at 362.

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

[4] At 436.

[5] Drugs Poisons & Controlled Substances (Amendment) Act 1983 s.7(1).

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

[7] ibid at 5300.

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

[9] Victoria, Parliamentary Debates, Legislative Assembly, 16 August 2001, 28-9 (Mr Hulls, Attorney-General).

[10] See [25]-[36] below.

[11] See eg. Darwell v R (1997) 94 A Crim R 35 at 40; Budiman (1998) 102 A Crim R 411 at 416, and the cases there cited.

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

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

[14] The Classification of Cannabis Under the Misuse of Drugs Act 1971 (Advisory Council on the Misuse of Drugs, March 2002) [1.2]-[1.4].

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

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

[17] See the Council's website: www.drugs.gov.uk/drugs-laws/acmd

[18] HC 1031, published 31 July 2006.

[19] At 3.

[20] At 15 [24].

[21] At 46 [105].

[22] [2005] 3 NZLR 739.

[23] At [2].

[24] At [5].

[25] At [8].

[26] At [17].

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

[28] See [81]-[83].

[29] [1987] HCA 46; (1987) 163 CLR 447.

[30] At 452.

[31] For a similar analysis in New South Wales, see R v Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284 at 295 [43] per Hulme J.

[32] Section 71AC is quantity-based where the drug in question is a drug for which a commercial quantity is specified and to which s.71AA therefore applies: see [45] below.

[33] Like s.71AC, s.72B is quantity-based where the drug in question is a drug for which a commercial quantity is specified.

[34] Or, in the case of cultivation of cannabis, the number of plants.

[35] R v Tideman (1976) 14 SASR 130 at 135.

[36] Even by 1993 the Court of Criminal Appeal was able to say: "The harmful effects of the use of marijuana are becoming better known..." R v Pastras (1993) 65 A Crim R 584 at 590.

[37] We note in this regard the recently-published World Drug Report of the United Nations Office on Drugs and Crime. Chapter 2 of that Report is entitled "Cannabis: Why We Should Care". See www.unodc.org.

[38] See eg. World Drug Report at 177-183.

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

[40] At 449-450.

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

[42] (1983) 34 SASR 555.

[43] At 556 (emphasis added).

[44] As to the need for "appropriate studies" to be undertaken, see R v Bowers (1997) 97 A Crim R 461 at 464 per Ireland J.

[45] cf. Vairy v Wyong Shire Council [2005] HCA 62; (2005) 80 ALJR 1 at [2]- [4] per Gleeson CJ and Kirby J.

[46] Unreported, 24 February 1988.

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

[48] At 324.

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

[50] At 201 (emphasis in original).

[51] (1979) FLR 386 at 399.

[52] At 204 (emphasis added).

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

[54] At 324.

[55] ibid

[56] [1999] VSCA 159.

[57] See [8] above.

[58] At [24].

[59] (1997) 189 CLR 579.

[60] At 604.

[61] At 604-5.

[62] See s.70 and column 2 of Part 3 of Schedule 11 to the Act.

[63] R v Li [1998] 1 VR 637 at 643 per Winneke P; R v Downie and Dandy [1998] 2 VR 517 at 523 per Callaway JA.

[64] [1989] HCA 18; (1989) 166 CLR 466.

[65] At 482.

[66] Compare R. v. Downie and Dandy [1998] 2 V.R. 517 at 523.

[67] House v. R. [1936] HCA 40; (1936) 55 C.L.R. 499 at 504 - 505; Cranssen v. R. [1936] HCA 42; (1936) 55 C.L.R. 509 at 519 - 520; R. v. Taylor and O'Meally [1958] VicRp 46; [1958] V.R. 285 at 289.

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

[69] See, however, R. v. Poon [2003] NSWCCA 42; (2003) 56 N.S.W.L.R. 284 at 285 [1], 295 [45] and 297 [56].

[70] [1987] HCA 46; (1987) 163 C.L.R. 447 at 452.

[71] Compare [37] - [38] above.

[72] An example that was mentioned in the course of the argument in the present appeals is the statement in R. v. Brown [2002] VSCA 207; (2002) 5 V.R. 463 at 478 [57] second sentence.

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