Under the statutory regime in Part 9.1 of the Criminal Code Act 1995 (Cth), a sentencing judge may not treat a border controlled drug as being of a 'lesser order' than other listed drugs based on perceived harmfulness; the seriousness of the offence must be determined by reference to the statutory provisions, particularly the prescribed quantities and maximum penalties. However, the question of whether harmfulness is wholly irrelevant or merely a secondary consideration was expressly left open pending the High Court's determination in R v Adams. The Court's exercise of the residual discretion not to intervene despite demonstrated error illustrates the strong protection afforded to offenders who have been permitted to remain in the community and have substantially complied with their sentence.
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