What happened
George Elias and Chafic Issa, together with Bassillios Pantazis (whose appeal was discontinued after his death), were members of a criminal network associated with Antonios (Tony) Mokbel. Mokbel was the central figure in "The Company", a sophisticated enterprise responsible for the manufacture and distribution of very large quantities of methylamphetamine. In March 2006 Mokbel was standing trial in the Supreme Court of Victoria on a presentment charging him with drug trafficking contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). On 20 March 2006 he failed to appear, a warrant issued, and the trial continued in his absence. On 31 March 2006 he was convicted and sentenced in absentia. He remained at large until arrested in Greece on 5 June 2007, continuing throughout that period to direct his drug business.
The conduct giving rise to the perversion charges involved substantial assistance to Mokbel's flight from justice. Elias and Issa jointly owned a property at Bonnie Doon, Victoria, where Mokbel was hidden until October 2006. They facilitated the supply of a large sum of cash to him. He was then moved to Elphinstone and transported by Pantazis to Fremantle, Western Australia. Elias and Issa met the group en route. Issa booked and paid for accommodation in South Australia and Western Australia. On 11 November 2006 Mokbel left Fremantle aboard a yacht bound for Greece; Issa engaged and paid a crew to refit and sail the vessel, while Elias procured equipment. In February 2007 Issa arranged the transfer of $120,000 cash and two passports; a forged passport derived from those documents was found on Mokbel at his Greek arrest.
Each appellant pleaded guilty in the Supreme Court of Victoria to multiple offences, including one count of attempting to pervert the course of justice. This is a common law offence for which the Crimes Act 1958 (Vic) fixes a maximum penalty of 25 years' imprisonment. The sentencing judge in each case imposed eight years' imprisonment on that count (cumulation and concurrency orders produced overall effective sentences not detailed in the joint judgment). At Pantazis' and Elias' sentencing hearings, and later before the Court of Appeal in Issa's case, submissions were advanced based on R v Liang (1995) 124 FLR 350. The appellants argued that the judge was required to treat as mitigating the fact that they could have been prosecuted either for the Commonwealth offence of attempting to pervert the course of justice in relation to Commonwealth judicial power (maximum 5 years) or as accessories after the fact to Mokbel's Commonwealth offence (also carrying a 5-year maximum under Victorian law).
The sentencing judges declined to reduce the sentences on that basis. The appellants appealed to the Court of Appeal of the Supreme Court of Victoria against the severity of their sentences. A five-judge bench (Warren CJ, Redlich, Hansen and Osborn JJA and Curtain AJA) was convened. That Court rejected the Liang submission both in its application to the Commonwealth offence and, in the alternative, to the State accessory-after-the-fact offence. It held that the maximum penalty for the accessory offence was inadequate to reflect the appellants' participation in a sophisticated and prolonged criminal combination striking at the heart of the administration of justice. The Court of Appeal also expressed the view that the Liang principle should be confined to alternative offences within the same jurisdiction. The appeals were dismissed.
Special leave to appeal to the High Court was granted. The matters were heard together. By notice of contention the Crown invited the High Court to hold that Liang does not state any principle known to the law. The joint judgment of French CJ, Hayne, Kiefel, Bell and Keane JJ accepted that contention, held that the sentencing judges had not erred, and dismissed both appeals.
Why the court decided this way
The High Court began from the statutory framework governing sentencing in Victoria. Section 5(1) of the Sentencing Act 1991 (Vic) contains an exhaustive statement of the purposes for which sentences may be imposed: just punishment, deterrence, rehabilitation, denunciation, protection of the community, or a combination. Section 5(2) lists non-exhaustive matters the court must take into account, beginning with "the maximum penalty prescribed for the offence" (s 5(2)(a)), current sentencing practices (s 5(2)(b)), the nature and gravity of the offence (s 5(2)(c)), and any aggravating or mitigating factor or other relevant circumstance (s 5(2)(g)).
The Court held that these provisions require the sentencing judge to sentence for the offence of which the offender has been convicted. Once an offender pleads guilty to the common law offence of attempting to pervert the course of justice, the judge's duty is to impose sentence for that offence, not for some other offence that might have been charged. The maximum penalty fixed by the legislature for the charged offence is a critical yardstick reflecting the legislative assessment of its seriousness. Careful attention must almost always be paid to it (citing Markarian v The Queen), although it is not decisive in every case and must be balanced against all other factors.
The Liang principle was said to rest on the idea that the prosecutor's choice of a more serious charge could "constrain" the court to impose a heavier sentence than it considered appropriate. The High Court rejected that premise. The maximum penalty does not operate as a straitjacket; the sentencing discretion remains wide and individualised. A judge is not required to impose an inappropriately severe sentence simply because the maximum is high. In the appellants' cases the sentencing judges had determined that eight years (less than one-third of the 25-year maximum) was appropriate to the nature and extent of their involvement in a scheme that enabled a major drug trafficker to evade justice for many months. There was no warrant to disturb those assessments by reference to lower maxima fixed for different offences.
A deeper objection was that the Liang principle is inconsistent with the separation of prosecutorial and judicial functions. The Court quoted with approval the joint reasons of Dawson and McHugh JJ in Maxwell v The Queen: a court may express a view on the appropriateness of a charge, but it must recognise that it is not exercising its own function and may be ignorant of legitimate prosecutorial considerations. To require a sentencing judge to treat the maximum penalty for a "more appropriate" uncharged offence as a mitigating factor or effective ceiling would compromise judicial impartiality. After conviction, the time for debating charging decisions has passed. Any abuse of process arising from the choice of charge must be raised before plea.
The Court also disposed of the fairness and consistency arguments advanced by the appellants. They had relied on statements in Green v The Queen about equal justice. The High Court held that parity is concerned with the equal treatment of co-offenders or participants in the same criminal enterprise for the offences with which they are charged. It is not engaged by comparing the maximum penalty for one offence with that fixed for a different offence. Likewise, the consistency spoken of in Hili v The Queen and Wong v The Queen is consistency in sentencing for the same offence, taking into account its distinct elements and maximum penalty. Reducing a sentence for a 25-year offence merely because a 5-year offence could have been chosen does not promote, and may undermine, consistency.
The Court observed that the Liang principle had been applied infrequently in Victoria and had been rejected in New South Wales (R v El Helou). It was not a long-standing, uniformly accepted rule of the common law. Even if it had been applied for more than 30 years, that history could not validate a rule inconsistent with the statutory sentencing regime and with the constitutional dimension of the separation of powers in Australia. The principle was therefore held to be without foundation.
Before and after state of the law
Before Elias v The Queen the Victorian Court of Appeal had treated the Liang principle as a "little-used, but nonetheless significant, sentencing principle of fairness". Winneke P in Liang itself had traced the idea to Scott v Cameron (a South Australian social security fraud case) and to observations of Drummond J in R v Whitnall. The principle was applied in R v Young (where the Commonwealth equivalent maximum of two years was treated as significant for a State perversion offence) and in R v Vellinos (where it was described as ensuring the prosecutorial discretion did not constrain the court to impose a heavier sentence than appropriate). Redlich JA in R v McEachran had criticised later glosses that required the alternative offence to be "more appropriate" rather than "as appropriate".
The principle had been confined to intra-jurisdictional offences by the Court of Appeal in the present matter, and it had been rejected outright in New South Wales in R v El Helou. The Sentencing Act 1991 (Vic) had been in force throughout, but its interaction with Liang had not been authoritatively resolved at High Court level. Commonwealth sentencing legislation and the Crimes Act 1914 (Cth) maxima had been treated by some intermediate courts as relevant yardsticks when State offences were charged.
After the High Court's decision the legal position is clear. No common law principle, and nothing in s 5 of the Sentencing Act 1991 (Vic), authorises or requires a sentencing judge to have regard to the maximum penalty fixed for an uncharged offence, whether Commonwealth or State, as a mitigating factor or effective ceiling. The maximum penalty for the offence of conviction remains the mandatory yardstick under s 5(2)(a). Prosecutorial charging discretion is to be respected; any complaint about the choice of charge must be ventilated before plea on abuse-of-process grounds rather than at sentence. Sentencing judges are relieved of the obligation to speculate about alternative charges that "properly, were not charged" (adopting Callaway JA's dissent in McEachran). The law now places greater emphasis on the offence as charged, the legislative assessment of its gravity, and the actual facts admitted by the plea or found by the judge. Current sentencing practices for the charged offence, not for analogous but differently constituted offences, are the relevant comparator under s 5(2)(b).
Key passages with plain-English translation
The joint judgment contains several passages that repay close attention.
First: "The starting point in any consideration of the imposition of criminal punishment must be that it is imposed for the offence for which the offender has been convicted. If it is right for the judge to take into account the circumstance that the offender's conduct might have resulted in conviction for a less serious offence, it is difficult to see why as a matter of principle the judge should not take into account facts disclosing a circumstance of aggravation that could have been, but was not, charged."
Plain English: Punishment is for what the person was actually found guilty of. Once you open the door to "they could have been charged with something smaller", you logically also open the door to "they could have been charged with something worse". That would turn sentencing into an untethered inquiry into all possible charges rather than the one before the court.
Second: "It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted."
Plain English: The fact that Parliament has set a high maximum does not force the judge to give a harsh sentence. Judges still have a broad discretion to fix a sentence that is just in all the circumstances; the maximum is a yardstick, not a command to be severe.
Third: the adoption of the Maxwell v The Queen passage set out in the key quotations above.
Plain English: Judges can say they think the charge is too high or too low, but they must realise they are only offering an opinion. They do not control charging decisions, and they may not know all the reasons why the prosecutor chose one charge over another. After a guilty plea, the judge's job is to sentence for what has been admitted, not to re-run the charging decision.
Fourth: the concluding sentence: "There is no warrant under the common law of sentencing for a judge to take into account the lesser maximum penalty for an offence for which the offender could have been, but has not been, convicted."
Plain English: This is the ratio. The Liang idea is not part of Australian law. Judges must stop treating alternative maximum penalties as automatic discounts.
What fact patterns trigger this precedent
The precedent is engaged whenever an offender, at sentence, invites the court to reduce the sentence by reference to the maximum penalty fixed for a different, less serious offence that could have been, but was not, charged. Typical triggers include:
- Overlapping State and Commonwealth offences arising from the same conduct (for example, State perversion of justice versus Commonwealth perversion in relation to federal judicial power).
- Choice between a general offence with a high maximum and a more specific offence with a lower maximum (as in Liang itself: general dishonesty obtaining financial advantage versus specific telecommunications fraud).
- Accessory or inchoate liability carrying a lower maximum than the principal or completed offence.
- Summary versus indictable alternatives, or offences that could have been dealt with summarily but were charged on indictment.
The principle from Elias prohibits treating the lower maximum as a mitigating factor or effective ceiling. It does not prevent a judge from taking into account the actual objective gravity of the conduct, including its duration, sophistication and effect on the administration of justice. Nor does it prevent the judge expressing a view, before plea, about the appropriateness of the charge. The precedent is not confined to Victoria; as a statement of common law sentencing principle by the High Court it applies nationally, subject only to any contrary statutory regime.
The fact pattern will not trigger the precedent where the alternative offence could not as a matter of law have been charged on the admitted facts (for example, jurisdictional defects or missing elements). The Court left open the precise availability of the Commonwealth and accessory charges on these facts but held it unnecessary to decide the point.
How later courts have treated it
Although the judgment itself does not cite post-2013 authority, its reasoning has been applied by intermediate courts to reject attempts to resuscitate the Liang principle. The High Court having declared that the principle is not part of the common law, later courts have treated Liang and its Victorian progeny (Young, Vellinos, McEachran) as overtaken. The statutory construction of s 5(2)(a) and (g) of the Sentencing Act 1991 (Vic) adopted in Elias has been followed so that only the maximum for the offence before the court is treated as the yardstick. Courts have cited the separation-of-powers passages from Maxwell v The Queen (as adopted in Elias) to decline invitations to sentence by reference to uncharged alternatives. The emphasis on sentencing for the offence of conviction, rather than for the underlying conduct divorced from its legal characterisation, has reinforced the primacy of the charged offence's maximum penalty and current sentencing practices for that offence.
Still-open questions
The judgment leaves several issues unresolved. First, the precise limits of judicial comment on charging decisions before plea remain open. While a court may express a view, the weight to be given to that view and the circumstances in which it is appropriate to do so are not exhaustively stated. Second, the interaction between the Elias principle and prosecutorial guidelines or prosecution policies that expressly require consideration of the least serious offence capable of reflecting the criminality is not addressed. Third, the position where the prosecution concedes that a lesser charge would have been more appropriate (as occurred to some extent in the Pantazis sentencing hearing) is not determined; the Court noted the prosecutor's acceptance that the accessory offence could have been charged but did not explore whether that concession altered the analysis. Fourth, the availability of abuse-of-process relief where a prosecutor selects a charge known to be disproportionate for an improper collateral purpose is preserved but not explored in detail. Finally, the judgment does not consider whether, in jurisdictions with different statutory sentencing regimes that expressly permit regard to "all the circumstances of the case", a differently worded provision might permit reference to alternative maxima. These questions will require future litigation, but the core proposition that sentencing occurs for the offence of conviction, not for an uncharged alternative, is now settled.