A sentencing judge's reference to the harmfulness of heroin in sentencing for a quantity-based drug importation offence under the Customs Act 1901 (Cth) is an error following R v Pidoto & O'Dea, but the error is immaterial where the judge independently assessed the offence as of the utmost seriousness by reference to the maximum penalty. A considered forensic decision by defence counsel not to seek a separate trial, made after evaluating advantages and disadvantages, weighs against a finding of miscarriage of justice on appeal, particularly where the Crown case was strong independently of the co-accused's inadmissible admissions.
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