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Oliveira v The Queen [2020] WASCA 32

appeal against sentence — importing a marketable quantity of a border controlled drug offence contrary to s 307.2(1) of the Commonwealth Criminal Code — offence relates to 1.331kg of pure cocaine — original sentence imposed 8 years’ imprisonment with a 5 year and 4 month non-parole period — nature and circumstances of the offence — s 16A(1)(a) — sentencing judge erred in law in sentencing offender on the basis that in considering the severity of the offence and the nature and circumstances of its commission, sentencing judge was required and permitted to take into account ‘the position in which cocaine is regarded in the hierarchy of drugs’ being ‘at the top end of the scale of seriousness in relation to drugs’ — in identifying different commercial quantities of cocaine, heroin and methamphetamine, Parliament has made a judgement as to the seriousness of possession of particular quantities of those border controlled drugs — sentencing judge, by referring to the ‘hierarchy of drugs’ and in viewing cocaine, heroin and methamphetamine to be at ‘the top end of the scale of seriousness in relation to drugs’, has identified a hierarchy which is inconsistent with that provided for by Parliament — sentencing judge applied a judicially-constructed harm-based gradation of penalties which is inconsistent with the structure of div 307 of the Commonwealth Criminal Code — error is material and as it was taken into account by sentencing judge in considering severity of offence, on face of things it appears to have actually affected sentence imposed — re-sentence — guilty plea — s 16A(2)(g) — allowed 25% discount that would have otherwise been imposed — sentence imposed 8 years’ imprisonment with a 5 year non-parole period
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