Spot the difference

The actual and potential harm caused by an offence is a significant consideration in sentencing. It would be natural to expect that drug offending carries various levels of harm, and that the nature of the drug and its quantity are relevant to assessing the harm caused by a particular offence. However, in the absence of specific legislative guidance, it may be difficult to convince a court that an offence in respect of one drug is less serious than the same offence in respect of another drug.

In Adams v R [2008] HCA 15 (23 April 2008) this argument was presented but the Court held that there was an insufficient foundation, legal or factual, for it to be considered.

Gleeson CJ, Hayne, Crennan and Kiefel JJ jointly, after a slightly inaccurate summary in para 3 (inaccurate in that the contrast between the two legislative schemes mentioned there is not as great as suggested because harm-based arguments are available under each, and the classification of MDMA in New Zealand is not as the Court was advised), observed that there are difficulties in contending that offending involving one drug in a particular category poses more or less harm than the same offending involving another drug in that category:

“[9] 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 R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269 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.”

In New Zealand there has been some recognition of differences between drugs of the same class. In Albon v R 26/6/96, CA544/95 a scientific report was used to compare the potency of MDA with other class A controlled drugs, and in R v O’Donnell 1/8/96, CA101/96, a distinction was recognised between drugs of class A, according to whether they were addictive or non-addictive. But in R v Stanaway [1997] 3 NZLR 129; (1997) 15 CRNZ 32 (CA) it was held that the criminality must be assessed in the circumstances of each particular case and that potential for addiction may not be the predominant measure of perniciousness in the light of physical and psychological effects and other social considerations. In R v Arthur [2005] 3 NZLR 739; (2005) 21 CRNZ 453 (CA), the Court recognised, at para 13, that the distinction between the hallucinogenic and the non-hallucinogenic Class A drugs may be relevant, and for the purposes of the case recognised that methamphetamine was non-hallucinogenic.

The point made by the High Court of Australia in Adams v R is that submissions of this nature must be supported by evidence, before the court will even begin to grapple with how it should make distinctions between similar offending in respect of different drugs.