WA v Higgins

(2008) 200 A Crim R 302; [2008] WASCA 157

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Drug offences
4. › Possession with intent to sell or supply
5. › MDMA (ecstasy)
6. › Whether sentence manifestly inadequate
7. › Misuse of Drugs Act 1981 (WA), ss 6(1)(a), 34(1)(a)
1. Criminal Law
2. › Sentencing
3. › Drug offences
4. › Relative harmfulness of drug as sentencing consideration
5. › Whether relative harmfulness of prohibited drug relevant under Misuse of Drugs Act 1981 (WA)
6. › Weight to be accorded to relative harmfulness
7. › Distinction from quantity-based penalty regimes
8. › Misuse of Drugs Act 1981 (WA), ss 6, 7, 9, 11, 34
1. Criminal Law
2. › Sentencing
3. › Drug offences
4. › General deterrence
5. › Whether personal mitigating factors given undue weight at expense of general deterrence
6. › Whether media presence relevant to general deterrence
1. Criminal Law
2. › Sentencing
3. › State appeal against sentence
4. › Whether error having no effect on sentence justifies allowing appeal
5. › Criminal Appeals Act 2004 (WA), s 31(1)(a), s 31(4)

Quick Take

Under the Misuse of Drugs Act 1981 (WA), the relative harmfulness of a prohibited drug (other than cannabis) is not a mandatory irrelevant consideration when sentencing, but will not ordinarily be a factor to which much weight should or can be given. This distinguishes the WA position from the Victorian approach in Pidoto (where harmfulness was held to be irrelevant) and from the Commonwealth approach in Adams. MDMA should be treated as seriously as methylamphetamine, heroin and cocaine for sentencing purposes. A discount of 25% for personal mitigating factors in a commercial drug dealing case motivated solely by profit is excessive where general deterrence is the paramount consideration.