Pidoto v O’Dea (2006) 14 VR 269 established that the type of drug of dependence involved is an irrelevant consideration in sentencing. It’s not possible to classify one substance in that category as being more or less ‘harmful’ than another.

The same point went to the High Court in R v Adams in 2008. In the decision (of five justices, just 18 paragraphs long) it was confirmed that trying to work out whether ecstasy, cannabis, amphetamine, cocaine or any other drug of dependence was more or less harmful than any of the others would require a sentencing court to embark on an analysis of social research that it would simply not be practical or efficient (if at all possible) to do.

Gleeson CJ, Hayne, Crennan and Keiffel JJ [at 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 [6],

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 Ming Tam Dang v R, the appellant set out as a ground of his appeal that the sentencing judge had impermissibly made such an assessment of the harmfulness of heroin and cannabis, falling into error.

The Court of Appeal affirmed the correctness of Pidoto v O’Dea (unsurprisingly, given that the earlier case was the 4:1 decision of five judges) and traced its later acceptance in Victorian law in R v D’Aloia, R v Karafilowski, R v Yacoub and DPP v McInness.

Bongiorno JA quoted R v Ferguson where a differently-composed Court of Appeal had said [at 399],

In R v Pidoto and O’Dea it was held that a sentencing judge erred if he or she imposed his or her own individual assessment of the perniciousness of the drug in question. Nothing said by the Court in Pidoto was, however, directed at remarks of a general character about the harm caused by trafficking in a drug of dependence.

Bongiorno JA continued [at 36]:

In the instant case, although the sentencing judge imposed a considerably lesser sentence upon Minh Tam Dang for cultivating cannabis than she did for trafficking heroin, she did not inappropriately compare the harm caused by one with the harm caused by the other. Her comments, quoted above, were of a general nature, not unlike those of the sentencing judge in Ferguson or of this Court in McInnes. She said that she must accord considerable weight to general deterrence for the crime of trafficking in heroin. She called it the ‘primary consideration’ in such sentencing. Her comments as to the effects of heroin and her references to the prisoners in this case being a ‘mother and a father of three young girls who would know the misery caused to other parents whose children had taken heroin’ were general comments in relation to this drug which did not offend the principle in Pidoto.

The appeal was dismissed.

It’s wrong for a sentencing court to sentence because of a perception that a particular drug trafficked or possessed is more or less harmful than others in the category of drugs of dependence. But practitioners should not ordinarily take objection to sentencing remarks of a general nature about the harm that drugs may do.