THE STATE OF WESTERN AUSTRALIA -v- HIGGINS [2008] WASCA 157 (24 July 2008)

THE STATE OF WESTERN AUSTRALIA -v- HIGGINS [2008] WASCA 157 (24 July 2008) - WASCA 2008 case summary — Zoe

[75]

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 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) [1999] NSWCCA 420; 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.

[83]

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.

[85]

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'.

[105]

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.

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 province of expert advisory committees and the ministers they advise, not of judges and magistrates.

[115]

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

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

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

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

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

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

[124]

The appellant's entire argument is based on the factual assertion that 'MDMA ... is less harmful to users and to society than heroin'. The quantities in contemplation for the purposes of that comparison are unspecified. How much MDMA is being compared with how much heroin? Other aspects of the meaning of the proposition are equally unclear. Harm to users and society is a protean concept. Counsel had understandable difficulty explaining exactly what the proposition means, let alone demonstrating, by evidence available to the sentencing judge or matters of which a court could take judicial notice, that it was true. What kinds of user, and what kinds of harm to society, are under consideration? The social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers. As the Victorian Court of Appeal pointed out in Pidoto (at 282 [59]) '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'. Furthermore, in relation to some of these matters, scientific knowledge changes, and opinions differ, over time. Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken.

An equally serious difficulty for the appellant's argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties. In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme. This problem was recognised by the Court of Criminal Appeal of New South Wales in R v Poon ... A similar problem in relation to Victorian legislation underlay the decision in Pidoto noted above.

Of course, the fixing of a maximum penalty is not the end of the matter, as was emphasised in Ibbs v R ... But there is nothing in the Customs Act, or the evidence, or the demonstrated state of available knowledge or opinion, which requires or permits a court to sentence on the basis that possessing a commercial quantity of MDMA is in some way less anti-social than possessing a commercial quantity of heroin. Furthermore, the sentencing judge's primary consideration was deterrence. That is not said to involve error. Why there should be a difference in that respect between heroin and MDMA was not explained.

The appellant has failed to demonstrate either a legal or a factual foundation for the contention that he should have been sentenced on the basis that MDMA is less harmful than heroin.

[126]

Even if the difficulties analysed in the joint judgment in relation to the meaning of that factual proposition ... are put aside, the appellant did not demonstrate that the factual proposition was in any sense true. He did not point to any evidence before the sentencing judge suggesting that the factual proposition was true. He did not identify any evidence as to its truth which he was in a position to call before the court having the responsibility of re-sentencing him. He relied upon a statement by the Supreme Court of the Australian Capital Territory (R v Crocker (1992) 107 FLR 63 at 68) that there was 'no justification on the evidence ... for treating MDMA as being more harmful than cannabis', but that was a tentative statement of what the evidence before that court did not establish, as opposed to what it did establish, and it was not directed to a comparison between MDMA and heroin. He also relied on a statement by the Western Australian Court of Criminal Appeal that MDMA was 'less serious than LSD, cocaine or heroin' (Robertson v R (1989) 44 A Crim R 224 at 230). That statement was based on evidence given by an expert before the sentencing judge in that case, and on information set out in literature provided by the Crown on the hearing of the application for leave to appeal against sentence. The evidence was not described, although the submissions of counsel based on the literature, assuming it to have been admissible, were quoted. A finding of fact by one court does not bind another in unrelated proceedings. It does not appear open to take judicial notice of the proposition stated by the Western Australian Court of Criminal Appeal: it was made nearly 20 years ago, and the field is likely to be one in which, unfortunately, human experience has become much more extensive, although not necessarily decisive. Hence it is not a proposition of which judicial notice could be taken, at least without further inquiry. That is equally true of cases which the appellant submitted showed the courts resisting acceptance of the contrary of the appellant's proposition. The appellant also relied on the contention that while judicial notice had been taken of the harmfulness of heroin, there were no equivalent instances of judicial notice being taken about the harmfulness of MDMA. This is not a legitimate mode of reasoning, in the absence of demonstration (which did not take place) that the courts taking judicial notice about heroin had in mind a comparison with MDMA; even if that had been demonstrated, this reasoning from silence would be highly questionable.

It follows that the appellant did not demonstrate either that MDMA was 'less harmful than heroin', or that there was any chance that the re-sentencing court would accept that proposition. The appellant was thus not able to show that if the appeal were allowed there would be any difference in the appellant's sentence.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (223 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- HIGGINS [2008] WASCA 157 (24 July 2008)

The practice in this jurisdiction concerning MDMA offences

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

The judgment of the High Court in Adams

Legislation Cited (15)

Cases Cited (11)