Nguyen v The Queen [2016] VSCA 198

CRIMINAL LAW - Mitigating factors - Risk of deportation - Illegal resident - Expired visa at time of sentence - Difficulty drawing comparison to cases involving offender with existing visa - No error in not taking risk of deportation into account - Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288; Da Costa Junior v The Queen (2016) 74 MVR 489; Konamala v The Queen [2016] VSCA 48; Schneider v The Queen [2016] VSCA 76, discussed - Migration Act 1958 (Cth) ss 41, 501, 501CA.

SENTENCING - Principles - Current sentencing practice ('CSP') - Consistency in sentencing - Jurisdiction of appellate court to correct CSP - Not limited to where determinative of appeal - Not limited to Crown appeal - Role of CSP in providing yardstick for range of sentences - Fairness as a matter of judicial discretion in not re-sentencing prisoner according to proposed increase in sentences - CSP for cultivation of commercial quantity of narcotic plant - Sentences in upper category of seriousness unduly low - Compressed range of sentences for mid-range offending - Current sentencing inadequate - Need for higher sentences for mid-range offending - Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658; Ashdown v The Queen [2011] VSCA 408; (2011) 37 VR 341; Harrison v The Queen (2015) 74 MVR 58; Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658; DPP v Werry (2012) 37 VR 524; Poyner v The Queen (1986) 66 ALR 264; R v Pidoto [2006] VSCA 185; (2006) 14 VR 269, Nguyen v The Queen [2010] VSCA 127, discussed.

CONSTITUTIONAL LAW - 'Matter' as federal requirement for jurisdiction - Limitation of 'matter' not applicable to State courts - DPP v Werry (2012) 37 VR 524, discussed - Australian Constitution.

For the Intervenors (Law Institute of Victoria and Criminal Bar Association)

1 On 4 September 2015 the appellant pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, two charges of theft of electricity and one charge of trafficking in a drug of dependence. Following a plea hearing on 23 September 2015, the appellant was sentenced as follows:[1]

[Drugs, Poisons & Controlled Substances Act 1981 s 72A]

[Drugs, Poisons & Controlled Substances Act 1981 s 72A]

[Crimes Act 1958 s 74]

[Crimes Act 1958 s 74]

[Drugs, Poisons & Controlled Substances Act 1981 s 71AC]

[Drugs, Poisons & Controlled Substances Act 1981 s 71AC]

5 years' imprisonment with a non-parole period of 4 years

Compensation Order ($11,395.45 to Energy Australia) on Charge 2.

Compensation Order ($5,419.10 to AGL Retail Energy) on Charge 3.

Forfeiture Order pursuant to s 32(1) of the Confiscation Act 1997.

Disposal Order pursuant to s 77(1) of the Confiscation Act 1997.

2 x Compensation Orders pursuant to s 86 of the Sentencing Act 1991.

Forensic Sample Order pursuant to s 464ZF(2) of the Crimes Act 1958.

2 In his application for leave to appeal against sentence, the appellant relied upon two grounds of appeal. On 18 January 2016, Maxwell P granted leave to appeal solely on the first ground.[2] That ground is as follows:

1. The sentence imposed on charge 1, orders for cumulation on charges 2, 3 and 4, total effective sentence and non-parole period is manifestly excessive in view of:

a. The appellant's personal circumstances:

i. First time offender;

ii. Relative youth at 28 years of age at the time of the offending;

iii. Early plea of guilty;

1. Impact of incarceration on mental ill health including during a two month period of 23 hour 'lock down' whilst on remand;

v. Prospects for rehabilitation; and

vi. Deportation.

b. The objective seriousness of the offending:

1. Role confined to knowledge of growth method and provision of instruction;
2. No evidence of quantum of financial betterment to be expected.
3. Orders for cumulation on charges 2, 3 and 4 were excessive and offended principles of totality because those offences were substantially related to the offending at charge 1.

3 Prior to the hearing of the appeal, the appellant sought leave to add a second ground of appeal. I would grant that leave. Under proposed ground 2, the appellant submits that the sentencing judge erred in failing to take into account in mitigation the burden on him of his likely deportation at the conclusion of his term of imprisonment.

1. The appellant relied upon his role as being of a lesser order than a principal within the criminal enterprise and various mitigating factors personal to him, to support his ground that the sentence was manifestly excessive. The appellant placed particular reliance upon current sentencing practice ('CSP'), submitting that the sentence imposed was not in conformity with existing sentencing standards as reflected in a number of cited cases and the Sentencing Advisory Council's ('SAC') Major Drug Offences Report ('Drug Offences Report').[3] The seriousness of the appellant's conduct placed him in the mid category for this offence.
2. CSP plays an important role in ensuring that there is reasonable consistency in the sentencing process, that like cases are treated in a like manner, different cases are treated differently and sentencing principles are applied in a consistent manner. CSP does not mark the outer boundaries of the sentencing discretion, but it does provide a yardstick against which the impugned sentence could be measured. None of the matters upon which the appellant relies supported the conclusion that the sentence did not bear an appropriate relativity to CSP. The appellant failed to demonstrate that the sentence was beyond the range of sentences reasonably open to the learned judge under the existing sentencing standards.
3. As to ground 2, I entertain serious reservations as to whether, by analogy, one can invoke the reasoning from Guden v The Queen,[4] Konamala v The Queen,[5] Da Costa Jnr v The Queen[6] and Schneider v The Queen,[7] as to the mitigatory relevance of the appellant's prospect of deportation. In each of those cases the offender at the time of sentencing had an existing visa to reside in Australia. The circumstances of those offenders appears qualitatively different from the appellant who is not lawfully resident in Australia, because his or her visa has expired. It is however, unnecessary to finally resolve that question. I would grant leave to appeal on the second ground, but I am neither persuaded that his Honour made an error in dealing with the appellant's risk of deportation or that that it should have resulted in a different sentence.
4. In response to the appellant's contention that the sentencing judge was constrained by prevailing sentencing standards to impose an even lower sentence than that fixed by the sentencing judge, the Director of Public Prosecutions (the 'Director') submitted that CSP for the mid category of seriousness of cultivating a commercial quantity of cannabis required correction as it was too narrow and too low. In my opinion, it is clear that there is a need to correct CSP, though not necessarily for all of the reasons the Director initially advanced. The argument on the substantive appeal showed that like cases for the mid category of seriousness of the offence of cultivation of a commercial quantity of narcotic plant are not dealt with in a like manner, the objective seriousness of the offence has not been adequately reflected in CSP, and there is a lack of consistency in the application of sentencing principles. Tate and Whelan JJA, whose reasons I have had the benefit of reading in draft, have reached the same conclusion. I regard the present appeal as an appropriate occasion to provide a warning that, in the future, sentencing courts should, by increments, increase the sentences to be imposed for such offending in the mid category of seriousness.
5. For the reasons that follow I would dismiss the appeal.

5 At the time of offending, the appellant was 28 years old. He was raised in Vietnam and arrived in Australia in May 2011 under a family-sponsored visitor visa. The appellant's mother and two sisters live in Australia. He overstayed that visa, and, since 14 May 2011, has been an illegal immigrant in Australia.[8] He married his wife, an Australian citizen, in 2014.

6 Between 1 October 2014 and 12 March 2015, the appellant, along with a number of other associates, engaged in the cultivation of a commercial quantity of narcotic plant across two properties and organised hydroponic equipment for the cultivation of narcotic plant at a third property. The appellant was living in a house in Maidstone ('the Maidstone house') and his mother owned a house in Ardeer ('the Ardeer house'). There was a further house in Tarneit ('the Tarneit house'), about which the appellant had discussions with his associates and was seen visiting in January 2015.

7 The appellant and his associates were the subjects of an extensive investigation between 20 October 2014 and 12 March 2015 by the Australian Crime Commission, involving the monitoring of over 11,550 phone conversations and surveillance. The phone conversations concerned the cultivation of cannabis, including growing techniques; when to water plants; when to provide nutrients and chemical to the plants; methods on how to identify a bug infestation on the plants; and how to dry the narcotic plant leaves when harvested. On 12 March 2015, police executed search warrants on the Maidstone, Ardeer and Tarneit houses.

8 The search of the Ardeer house revealed that three rooms had been modified for the purposes of narcotic plant cultivation, including false walls concealing the hydroponic set up in each room. Plasterboard and black plastic covered the windows in these rooms. A reticulated watering system was set up to water and feed the narcotic plant plants. High powered lighting and chemicals were used to assist the growth of the plants. One hundred and eleven plants in various stages of growth were located at the Ardeer house, weighing 17.5168 kilograms in total. A van registered to the appellant was also seen in the driveway of the Ardeer house on three occasions in the month prior to the search.

9 The search of the Tarneit house uncovered a hydroponic set up for the cultivation of narcotic plants in five rooms. High powered lighting was suspended from the ceiling. There was a reticulated watering system, and modifications to internal walls had been made. One hundred and thirty plants in various stages of growth weighing a total of 21.42 kilograms were seized.

10 Two hundred and forty-one narcotic plant plants were seized in total from the Ardeer house and the Tarneit house, weighing a combined total of 38.9368 kilograms. This amounted to approximately 2.5 times by the number of plants, or 1.5 times by the weight of the plants, the threshold for a commercial quantity.[9] Although the quantity of plants in each house was sufficient to found a charge of cultivation of a commercial quantity of cannabis, charge 1 on the indictment was laid on the basis of the quantity of the plants cumulatively cultivated at the Ardeer and Tarneit houses.

12 Equipment for the purpose of theft of electricity was located at the Ardeer house, including one electrical bypass; 34 light globes; 35 light shrouds; 36 electrical transformers; and two power boards. $11,395.45 worth of electricity was stolen using the electrical bypass between 1 October 2014 and 12 March 2015. This constituted charge 2.

13 During the search of the Tarneit house, the police found one electrical bypass; 67 light globes; two power boards; 81 electrical transformers; and 25 light shrouds. The electrical bypass at the Tarneit house was used to steal $5,419.10 worth of electricity between 13 February 2015 and 12 March 2015. This constituted charge 3.

14 At the Maidstone house, the police located hydroponic equipment including 213 light shrouds; eight electrical transformers; 143 light globes; five power boards; and five tubs of assorted light fittings. Also located at the Maidstone house was 320.7 grams of narcotic plant (cannabis) in the appellant's possession for the purposes of sale. This constituted charge 4.

15 It is convenient to first address ground 2 as the appellant did on the appeal.

16 The appellant submits that the sentencing judge was wrong not to take into account the burden on him of the risk of his deportation at the conclusion of his term of imprisonment.

17 The appellant overstayed his family-sponsored visitor visa after its expiry on 14 May 2011. He has been an illegal immigrant in Australia since that time. Having married an Australian citizen on 1 July 2014, the appellant hoped to remain in Australia under a partner visa and had thus far been unsuccessful in obtaining a partner visa. Legal advice from an immigration lawyer was provided to the appellant that, should he be sentenced to a term of imprisonment for more than 12 months, his partner visa application may be refused on character grounds. The advice also records that a previous application lodged on the appellant's behalf was rejected on account of the charges he faced. That advice was tendered on the plea, and the sentencing judge noted the contents of that letter.[10]

18 In his sentencing remarks, the judge noted the appellant's status as an illegal immigrant. He said: [11]

[Defence counsel] submitted that any sentence higher than 12 months' imprisonment would result in your deportation to Vietnam. That matter is an administratively [sic] factor outside my control, and whilst noting the potential impact deportation will have on you and your family, it is not a factor in your favour. You have offended whilst being an illegal immigrant. The principles of general and specific deterrence combined with denunciation of your conduct must result in a term of imprisonment for you.

19 The appellant relies upon these remarks as disclosing error. He submits that his position is analogous with the circumstances considered in Guden,[12] that serving a sentence while under the expectation of deportation following completion of the sentence increases the burden of imprisonment that would otherwise be felt by an offender.

20 In Guden, the Court considered the relevance of the prospect of an offender's deportation as a sentencing consideration:[13]

In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender's deportation is an irrelevant consideration in the sentencing process. As a matter of principle, the converse must be true. Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.

It follows that, subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining an appropriate sentence. The Queensland Court of Appeal pointed out in Simard that this is not a sentencing consideration which can be called in aid by an offender who has Australian citizenship. But, with respect, this is simply an illustration of the infinite variety of personal circumstances which fall for consideration.

As the Crown properly conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the NSW Court of Criminal Appeal in Kwon that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the court there did, this may well be viewed as a serious 'punishing consequence' of the offending.

Of course, as this Court made clear in Griffiths, the sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed - as in Griffiths - as 'a completely speculative possibility'.

What Nettle JA said in R v Tabone, in relation to the comparable question of the risk of confiscation of property following a conviction, applies with equal force here. That is, in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.

22 The Director submits that the reasoning in Guden should not be applied as there is a qualitative material difference between an offender who does not possess a visa and has no prospect of getting one, and one who enjoys legal residence in Australia and faces the risk of deportation. He also submits that no submission was made on the plea that the appellant's burden of imprisonment would be made harder due to his potential deportation and that in any event the judge implicitly took that fact into account in his reasons. Finally he submits the factor was not a mitigating factor of particular significance.

23 I do not consider from the broad tenor of the judge's remarks that the judge took into account any burden that might be caused by the risk of deportation. That it was not considered is rendered the more likely because it was not the focus of attention on the plea.

24 It is therefore necessary to consider whether the prospect of deportation should have been taken into account as a mitigating factor. I turn first to the relevant provisions of the Migration Act 1958 (Cth) ('the Act') under which the appellant's potential claim to lawful residence in Australia might arise. The appellant originally arrived in Australia under a family sponsored visitor visa, namely, Visa Subclass 679. Clause 679.611 under sch 2 of the Migration Regulations 1994 (Cth) ('the Regulations'), as was in force at the relevant time, stated that a 'family sponsored visitor visa', was subject to condition 8503 of sch 8 of the Regulations. Condition 8503 provides that the holder of the relevant visa will not after entering Australia, be entitled to the grant of a substantive visa, other than a protection visa.

25 Section 41 of the Act gives the relevant Minister a discretion to waive the 'no further stay' condition:

41 Conditions on visas

(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

...

(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

26 The Minister's discretion to waive that condition constitutes the first prerequisite to the grant of a partner visa.

27 The appellant argues that the Act generally discloses a policy inimical to the grant of a visa in his circumstances. Although not strictly applicable to the appellant as he does not yet have a visa, s 501(3A) of the Act, amended in 2014,[15] provides in mandatory terms that the Minister must cancel a visa granted to a person if certain conditions are satisfied:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

28 Section 501(6)(a) of the Act provides that a person does not pass the character test if 'the person has a substantial criminal record (as defined by subsection (7))'. Section 501(7) relevantly provides:

(7) For the purposes of the character test, a person has a substantial criminal record if:

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of 12 months or more; ...

29 On the face of it, even if a partner visa were to be, or had been granted, on the basis of s 501(3A) and s 501(6)(a) of the Act, the appellant's expectation of being deported following a term of imprisonment exceeding 12 months, appears to be well founded. Section 501CA, however, confers upon the Minister a discretion to revoke any decision made under s 501(3A) to cancel a visa. Section 501CA relevantly provides:

501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision; and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

...

30 The Minister thus retains a broad discretion to revoke the original decision to cancel a visa if, despite the person failing the character test, 'there is another reason why the original decision should be revoked'. It would likely follow that the onus of proving that the Minister should so exercise his discretion to revoke the cancellation of an existing visa should be borne by the person whose visa was cancelled.

31 Furthermore, a person whose visa has been cancelled is entitled to seek a merits review of a decision not to revoke the cancellation. Section 500(1)(ba) of the Act provides:

Applications may be made to the Administrative Appeals Tribunal for review of ... decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

32 This Court has recently considered the effect of the changes made to the Act and the migration regime since Guden. In Konamala,[16] after referring to one of the passages set out above in Guden,[17] the Court said:[18]

Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner's personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.

In Guden it was recognised that - subject always to the state of the evidence before the sentencing judge - the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant's position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so.

33 In Da Costa[19] this Court compared the position before the 2014 amendments to the Act with the current position:[20]

Now, as previously, the offender knows that he is at real risk of deportation because of his conviction of the criminal offence. Now, as previously, he must live with the uncertainty surrounding what will be a discretionary decision by the Minister. Previously, the relevant discretion related to cancellation of the visa. Now, the discretion relates to revocation of the cancellation decision. (The Minister being bound by statute to cancel the visa, no occasion arises at that point for any consideration of the circumstances of the individual.)

It is neither necessary nor appropriate for the Court to investigate whether, in practice, the process will be different. We assume that, under the former provisions, when the Minister was considering whether to cancel a visa, submissions were made on behalf of the offender that no such decision should be made. It must be assumed that, in the future, an application for revocation as a cancellation (assuming the provisions do not change again in the meantime) will be supported by the very same considerations as would hitherto have supported a submission that no cancellation decision should be made.

34 The Court concluded in Da Costa that, while the applicant was correct to argue that the changes to the Act constituted fresh evidence, it was not persuaded that a different sentence should be passed. Critical to that determination was the consideration that it was 'a matter of speculation as to what the responsible Minister may or may not do when an application for revocation is made following the automatic cancellation decision.'[21] The same outcome resulted in the recent decision of Schneider.[22]

35 The appellant, at the time of sentencing, resided illegally in Australia, having overstayed his visa since May 2011, and his initial application for a partner visa had been unsuccessful. In Guden, Konamala, Da Costa and Schneider, the offender at the time of sentencing had an existing visa to reside in Australia. The appellant here did not. I entertain serious reservations as to whether, by analogy, one can invoke the reasoning from those cases. The nature of the expectation an offender may enjoy of remaining in Australia where the offender resides in Australia legally under a visa at the time of sentencing, but whose visa is liable to be cancelled and who lives with the uncertainty of not knowing whether an application for the revocation of the decision to cancel the visa will succeed, does appear qualitatively different from that of an offender who is not lawfully resident in Australia, because his or her visa has expired. In the former circumstance, the cancellation of an existing visa could be said to be attended by a sense of real loss of the prospect of settling in Australia which the offender had previously secured. In the latter circumstance, the offender has not lost an existing right, but only the possibility of securing a visa. What may be said is that the offender's prospect of settling in Australia has been diminished.

36 I find it unnecessary however to determine whether that qualitative difference between the appellant and an offender legally residing in Australia disentitles the appellant to call in aid in mitigation that prison will be more burdensome because of the risk of deportation. It is entirely speculative whether the Minister may grant a waiver of the 'no further stay' condition so as to enable the appellant to pursue an application for a partner visa. Even if the appellant's risk of deportation was a relevant mitigatory factor, it was not of an order that leads me to conclude that a different sentence should be imposed.

37 I would grant leave to appeal on this ground, but the ground cannot be upheld.

38 Under ground 1, the appellant first submits that the sentencing judge gave inadequate weight to one or more of a number of specified matters, resulting in a manifestly excessive sentence.

39 The appellant first contends that the sentencing judge failed to give sufficient weight to particular personal mitigatory circumstances of the appellant. The mitigating features relied upon by the appellant included his difficult personal background, in particular his separation from his mother and sisters following their departure to Australia when he was 15 years old, his early plea of guilty, the absence of any prior convictions, and his relative youth. He argues that his prospects of rehabilitation were strong given his general good character, completion of high school education and engagement in full-time work in the hospitality industry until 2010 before his arrival in Australia. He notes further that, as a condition of his immigration visa, he was unable to work in Australia.

40 The sentence judge, in his sentencing remarks delivered on the same day as the plea, referred to matters personal to the appellant. He made explicit reference to the appellant's age, guilty plea, the acceptance of personal responsibility for the offending, that he was willing to facilitate the course of justice, his mental health, and his visa status. The judge took into account in mitigation that the appellant had committed the offences at the relatively young age of 28,[23] and had no previous convictions.[24] The judge referred to the appellant's early history in Vietnam, in particular the separation of his parents when he was 15 years' old due to the presence of considerable family violence.[25] He noted that the appellant continued to receive the support of his wife, mother and sisters. He also took account of the reference by the appellant's sister indicating the appellant's remorse and how helpful he had been to her family.[26]

41 Notwithstanding that the judge addressed each of these matters raised on the plea, the appellant argues that the absence of specific reference to his prospects of rehabilitation in the sentencing remarks, reinforces the proposition that they were not given adequate weight. As to such a complaint, this Court has often had cause to observe that the absence of reference to a specific matter in sentencing reasons does not of itself establish that it has been overlooked or that its absence necessarily bespeaks error. There is no obligation upon the judge to refer to every matter taken into account in the instinctive synthesis of material factors undertaken in sentencing.[27] Nothing said by his Honour suggests that he was not alive to the appellant's prospects for rehabilitation. Moreover, the absence of reference to the appellant's prospects of rehabilitation in his sentencing remarks, is readily explained by the fact that his counsel on the plea, said only as to rehabilitation that the appellant's previous good character leads to 'consideration of [is] his prospects for rehabilitation and risk of reoffending and the burden of incarceration'. Nothing else was said on this issue. Given the focus of attention on the plea by the appellant's counsel was as to the high risk of deportation and the sort of sentence that might avoid that risk, it is not surprising that rehabilitation was not the subject of greater attention.

42 The appellant further argues that a mitigatory feature of special significance which was given less prominence than it deserved was the unusual burden of imprisonment borne by him. In support of this submission the appellant relies upon his major depression and anxiety, diagnosed in the psychological assessment undertaken by Dr Watson-Munroe ('Watson-Munroe report'). Consistently with the position taken on the plea, the appellant does not rely upon his diagnosis of depression as a sentencing consideration enlivening the principles in R v Verdins.[28] He submits that his anxiety is exacerbated by the prospect of deportation from Australia after he serves his term of imprisonment. He also relies upon the impact of the riots at the Metropolitan Remand Centre ('MRC'), following which he spent a period of two months in 23 hour 'lock down' involving his confinement to a cell. It is submitted that, while he serves his time of imprisonment, the appellant is unlikely to receive the kind of treatment he requires given the limited resources available and his lack of proficiency in English. Additionally, he points to his isolation in custody given his limited grasp of English and the difficulty he faces in supporting his wife, who suffers from bipolar disorder, while in custody. It was submitted during the hearing that, if the Court was inclined to re-sentence the appellant, the recent diagnosis of the appellant's mother with cancer and the need to care for her was an additional factor in mitigation to be taken into account. Save for the last of these matters, all of these considerations were raised on the plea.

43 The judge stated in his sentencing remarks that he took into account the Watson-Munroe report tendered on behalf of the appellant in which the psychologist had opined that the appellant was suffering from major depression with features of anxiety disorder. The report also stated that the appellant's symptoms were compounded by his being in custody, that the rigors of his confinement had been exacerbated by the MRC riots, his extended confinement in his cell and the prospect of likely deportation to Vietnam. Each of these matters was emphasised by the appellant's counsel on the day that sentence was imposed. In circumstances where defence counsel eschewed any submission that the appellant's mental illness caused or contributed to the offending and thereby enlivened the principles in Verdins, it was not necessary that the judge say any more than that he had taken into account the appellant's psychological state in the context raised by the psychologist.

44 I am not persuaded that the sentencing remarks or the sentence imposed demonstrate that his Honour failed to give sufficient weight to any of these aspects of the appellant's personal circumstances.

45 The second primary argument raised by the appellant is that the sentence was beyond the range permitted by CSP which constrained the judge to impose a lower sentence. The issue of CSP had been explored at some length on the plea. The parties had made submissions on the basis of the SAC's Sentencing Snapshot 165, dated August 2014, for the offence of commercial cultivation ('SAC snapshot').[29] The prosecution submitted that, while the Sentencing Snapshot was of less utility than it might otherwise have been, as it predated this Court's guideline judgement in Boulton v The Queen[30] regarding the imposition of a Community Corrections Order as an alternative to custodial punishment, it indicated that terms of imprisonment for this offence extended from five months to six years. Attention was drawn to the median term of imprisonment of two years and three months' imprisonment, and the most common term of imprisonment being two to three years' imprisonment.[31] On the basis of the use of two properties in the offending, plants in various stages of growth and the presence of a number of co-offenders, the prosecution submitted that the appellant's offending was 'mid-range'. Defence counsel submitted that the appellant's offending fell short of mid-range offending on the basis that the commercial quantity involved in his case was only 1.5 times the threshold for a commercial quantity, by the weight of the plants.

46 The judge's sentencing remarks reflect careful consideration of the relevant aggravating and mitigating features of the case. As to the aggravating factors present in the factual matrix, the judge placed considerable emphasis on the gravity of the offending and the appellant's culpability for it. He referred to authority which emphasised that the maximum penalty for the offence of 25 years' imprisonment reflected the relative seriousness of the offence of cultivation of a commercial quantity of cannabis.[32] He set out a list of factors which elevated the seriousness of the appellant's offending above the lowest category of offending:

The seriousness of your offending or in this particular offending is

(a) the planning involved,

(b) the period of time engaged with is approximately six months,

(c) the fact that there are two separate grow houses involved in your offending,

(d) the leftover equipment, if I can use that term, the equipment for this type of activity which was found at your own home in the garage,

(e) the commercial quantity is either two and half times by the number of plants, or 1.5 times by the weight of the plants, and

(f) the diversion of power and the set-up generally of the houses indicates a level of sophistication.[33]

47 He also stated that he had taken into account CSP.[34] He determined that general deterrence and denunciation were to be given significant weight in offences of this nature. That finding contributed to his conclusion that the 'objective seriousness of [the appellant's] offending disqualifies a community corrections order as an appropriate penalty, either on its own or in combination with a term of imprisonment'.[35]

48 On appeal, the appellant pressed the submission that his total effective sentence, and secondly his individual sentence on charge 1, were inconsistent with CSP by reference to the three cases mentioned in Maxwell P's reasons for granting leave to appeal, namely, Latif v The Queen,[36] McGrath v The Queen[37] and Barton v The Queen.[38] Each of those cases involved greater quantities of narcotic plant but lower sentences were imposed. He now place particular reliance upon the SAC's Drug Offences Report, in particular for the offence of cultivating narcotics, examining current sentencing practice from 2008-09 to 2012-13,[39] which took into account multiple charges faced by an offender convicted of commercial cultivation. In the 403 cases in which sentences were imposed on a charge of cultivation of a commercial quantity of a narcotic plant in the Drug Offences report,[40] the median term of imprisonment was two years and three months, for sentences where cultivating a commercial quantity of narcotic plants was the principal charge.[41] The appellant submits that the sentence imposed upon him was disproportionate to the objective seriousness of the offending as reflected by the current sentencing practice so disclosed. While conceding that his role was that of an 'organiser', as described by the judge on the plea, the appellant maintains that his offending was 'towards the lower end' of the spectrum.

49 It is necessary to determine a primary question which was much in issue as to the role of the appellant in the cultivation. That will inform the question as to the category of seriousness of the appellant's conduct and in turn will identify the relevant CSP that must be considered.

The role of the appellant; the category of the appellant's offending

50 On the plea, the appellant's counsel admitted that the appellant was in possession of the two crops, was cultivating them, and was to benefit financially from their ultimate sale. Thus on the appeal the Director contended that all of the admitted facts indicated that the appellant played a role comparable to that of a principal. The appellant contended that he could only be described as an 'organiser,' but not a principal.

51 Appellate courts will seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence. Hayne J described this range as the 'permissible range of disposition' in AB v The Queen.[42] In Nash v The Queen,[43] and again in Vernon Board v The Queen,[44] this Court cited the passage from Anderson v The Queen,[45] as to the importance of current sentencing practices in the identification of the sentencing range applicable to the case at hand and which reaffirmed and endorsed the statement by Redlich JA in Ashdown v The Queen[46] that:[47]

... it is [current sentencing practice], as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge

52 It was also said in Ashdown that there may also be a further narrowing of the range by asking whether the offence falls towards the lowest end, the middle or the upper end of that applicable range. Such focus upon the relevant range of sentences, or in times gone by, to the 'tariff' or 'going rate', provides guidance as to an indicative range for the category of seriousness of the subject offence and implies that the range is not unlimited.[48]

53 Although it was not in issue on the appeal that the judge was correct to place the appellant's offending above the lowest category, the appellant asserted that he should have been placed toward the low end of the mid category of seriousness of this offence. The appellant submits that while the cultivation can properly be described as a sophisticated operation, involving two premises for cultivation and a third house storing the cultivated product and additional equipment, the appellant was not to be treated as though he was a principal in the offending.

54 The appellant submits that the prosecution evidence as to the nature of his role was extremely limited. He submits that it was not established that he attended the Tarneit house on more than one occasion and the Ardeer house on three occasions. The prosecution, he asserts, offered no evidence as to his involvement in setting up the Ardeer or Tarneit houses for the purpose of cultivation or in growing the crop beyond instructions he had provided for its propagation in phone conversations. While it was acknowledged on the plea and accepted on appeal that the appellant was motivated by financial gain from the ultimate sale of the crop, he argues that there was no evidence of the quantum of financial betterment he could have expected from the offending. Further, in oral submissions, counsel for the appellant submits that it was not open on the evidence to hold the appellant responsible for the financial investment required to secure the equipment and material necessary for cultivation or for the equipment found in his possession in his home. The appellant also submits that there was no evidence as to his responsibility for setting up the electrical bypass on charges 2 and 3.

55 The Director submits the detailed list of factors relied upon by the judge demonstrated the gravity of the offence. He argues that the judge was correct to apply those factors to the appellant and to accord considerable significance to the number of plants on each property and the number of properties involved. The appellant having pleaded guilty to the charges and having admitted on the appeal that the facts enabled his role to be characterised as an organiser, the Director submits that the absence of additional evidence, to which the appellant draws attention did not alter the admitted character of his offending. The Director drew upon the lesser sentence imposed on a co-offender who pleaded guilty to a single charge of cultivation of a commercial quantity of cannabis. An Quoc Chu was described as a crop sitter, was 55 years old, without prior convictions and also lacked the status of an Australian resident. He was sentenced to twelve months' imprisonment. The Director contends that the nature of his offending did not place it at the lower end of the scale of seriousness of the mid category of this offence, but well within the mid-range of seriousness of this offence.

56 Whether an offender should be characterised as a principal or as discharging functions similar thereto is ultimately to be assessed on a case by case basis. It will not always be the case that a criminal enterprise will have a hierarchical structure or that the role played by each participant will be clearly delineated. Even where it is, the particular role may not possess all of the same characteristics as other principals within the enterprise.

57 The agreed facts tendered on the plea established the appellant's intimate connection with two of the three premises involved in the offending, the appellant resided in the Maidstone house and his mother owned the Ardeer house.[49] There was no evidence that the appellant received instructions to perform the acts he had undertaken in furtherance of the criminal enterprise; rather, the evidence, namely, the considerable number of phone calls between the appellant and the other offenders, pointed strongly to the cultivation of narcotic plants being undertaken, at least in large part, under the appellant's tutelage. The monitored phone conversations disclosed the general nature of his offending conduct. In those conversations, the appellant gave highly technical and critical advice as to the propagation of the crop, essential to the commission of the offences. I have earlier referred to their general content.

58 The scale of the operations was considerable. Sophisticated hydroponic equipment was used in the two premises and elaborate steps of concealment were taken. The theft of electricity amounted to the considerable sum of $16,814.55. Only the appellant was charged with the theft of electricity. By his plea of guilty to theft of the electricity over the entire period for both properties, he indicated his acceptance of responsibility for an integral aspect of the operations from the commencement of cultivation and throughout its entire duration.

59 The appellant's Maidstone house contained sophisticated equipment, including a large number of light shrouds; electrical transformers; light globes; power boards; and assorted light fittings, being equipment of the sort that that been used in the two houses converted for hydroponic cultivation. This equipment gave further support to the inference that his role in the operations was a prominent one in the enterprise of cultivation. If he did not own or have any financial interest in the property found in his possession, no such assertion was ever made during the plea. The Mercedes van, registered to the appellant, was seen in the driveway of the Ardeer house on three occasions in the month prior to the search.

60 On the plea the appellant's counsel made much of the fact that there was no evidence that he set up the electrical bypass systems, that there was no evidence of what his financial benefit from the crops would be, described by his counsel as 'betterment,' and no evidence of his specific role in the hierarchy. But unlike most pleas, no assertions from the Bar table,[50] or evidence was forthcoming that sought to qualify or explain the inference which the prosecutor submitted was to be drawn from the admitted facts, namely that the appellant played a leadership role and was an organiser. The appellant was either unwilling to provide instructions to his counsel or have them revealed, which would have disclosed the nature of his relationship with others (if there were any) that he implied by his submission on the plea had an interest in or may have benefitted from the crop. He refrained from explaining the extent of his prospective financial betterment, his role in the theft of the electricity, or the reason for his possession of the large amount of hydroponic equipment found in his home.

61 On the appeal, counsel who now appears for the appellant, maintained the position that the absence of such evidence meant that the inferences to be drawn from the admitted facts were limited. In particular it is submitted that it could not be said that the appellant's role was akin to that of a principal and that a distinction between an organiser and a principal was required. I do not accept either of these contentions.

62 It was not for the Crown to undertake some general burden of proving all facts relevant to sentence.[51] Where an offender wishes to limit the extent of the inferences to be drawn from established facts or to rely upon further facts in mitigation to qualify the conclusions that would otherwise be drawn from the admitted facts, the practical burden of proof falls upon the offender as the party seeking to rely on that fact.[52] That is to say it is for the offender to prove matters favourable to him or her where a contested issue arises.[53] As I have said, that burden is often discharged by assertion made from the Bar table during the plea if the sentencing judge is prepared to act upon such submissions.[54] If the judge intimates that he or she is not prepared to do so, the offender must adduce evidence of that fact.

63 The admitted facts demonstrated that the appellant was an organiser with a financial interest in the crop and was to be regarded as equivalent to a principal. It was for the appellant to at least assert facts if he wished to contest that characterisation.[55] He made no attempt to do so.

64 The aggravating features which the judge took into account well supported the finding that the gravity of the offending was high and fell well within the mid-range of seriousness. More than a thousand of the intercepted telephone calls concerning cultivation of cannabis did not relate to either premises the subject of the charges, thus demonstrating that the appellant's charged offending could not be regarded as isolated conduct. Although the sentencing judge did not say that he found the appellant to have played a leading role, or one akin to a principal, the evidence which the judge summarised, dictated that conclusion. As counsel who appeared on the appeal submitted, the sentence that was imposed was consistent with a finding that the appellant played a leading role and was culpable as a principal. In my opinion the sentencing judge was well entitled to approach the issue in that way. The CSP that was relevant was that applicable to a principal involved in cultivation of a commercial quantity of a narcotic plant.[56]

Approach to the comparable cases and current sentencing practice

65 Before turning to the competing contentions as to what is demonstrated by the cases cited and the Drug Offences Report, it is necessary to say something as to the important function which current sentencing practice and comparable cases play in advancing the underlying value of equality under the law and the search for unifying principles in the task of sentencing.

66 The joint reasons of French CJ, Crennan and Kiefel JJ emphasised in Green v The Queen[57] that the notion of 'equal justice' embodies the norm expressed in the term 'equality before the law' and has been called 'the starting point of all other liberties.'[58] They quoted with approval the passage from the joint reasons in Wong v The Queen[59] that 'equal justice requires identity of outcome in cases that are relevantly identical' and 'requires different outcomes in cases that are different in some relevant respect.'[60]

67 Gleeson CJ stated in Wong that the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency. Gleeson CJ said:[61]

All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.

68 The plurality in Hili v The Queen,[62] approved this statement, saying that the search for that consistency requires that sentencing judges must have regard to what has been done in comparable cases.[63] The statement of Gleeson CJ in Wong was again repeated with approval in the joint reasons in Elias v The Queen.[64]

69 In R v Pham,[65] comparable cases were stated to serve a twofold purpose. The first, that such decisions may 'provide guidance as to the identification and application of relevant sentencing principles'.[66] The second, to decide whether they yield 'discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence'.[67] These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles.[68] By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.[69]

70 In Ashdown[70] I referred to the requirement in s5(2)(b) of the Sentencing Act that the sentencing court must have regard to current sentencing practice.[71] The term is to be understood as a particular, though not exclusive, reference, to the kinds of sentences that are imposed for that offence in  comparable  cases.[72] The Sentencing Advisory Council has defined it 'as those sentences imposed over a recent period of time on "like" cases.'[73]

71 The need for the judge to be provided with what has been done in other (more or less) comparable cases was stressed in the joint reasons in Barbaro v The Queen.[74] In Hili, the plurality referred to Director of Public Prosecutions (Cth) v De La Rosa[75] and the use of information about sentences that have been passed in other cases, that history of sentencing establishing a range of sentences that have in fact been imposed. The importance of the sentencing patterns disclosed by that history were recognised by the plurality in Hili to be of considerable significance, in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.[76] As the plurality state in Hili, Barbaro and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed. Past sentences provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.[77]

72 Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen[78] Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with 'relevant comparators'.[79]

73 Cases are likely to be  comparable  where the objective seriousness of the offender's conduct is similar to that of the subject offence. As I said at [51], appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of [80]e offence.80

74 None of this is to say that the range of sentences so disclosed is necessarily the correct range, or otherwise determinative of the upper and lower limits of sentencing discretion. As the plurality stated in both Hili and Barbaro, the history of sentences in other cases from which a range may be drawn does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits.[81] The past does not fix the boundaries within which future judges must, or even ought, to sentence. As this Court has so often repeated,[82] CSP does not create a ceiling or floor beyond which a judge may not go. A judge may conclude that the gravity of the offending is deserving of a sentence higher or lower than any previously imposed for an offence of that category of seriousness.

75 The cases which were the subject of specific submissions on the leave application and which were further addressed on appeal may now be considered in the light of the appellant's role in the cultivation. Both parties were able to draw upon cases which supported their submissions, thus demonstrating that the sentencing standards for mid range offending are quite inconsistent. Some of the cases considered involved conduct which fell outside the relevant category of seriousness for the subject offence but they nevertheless provided assistance in identifying indicative outer limits of the appropriate sentencing range. Neither party suggested that there was some feature of the case that required the judge to fix a sentence that fell outside existing sentencing standards

76 The first case was McGrath.[83] The offender was sentenced on one charge of cultivation of a commercial quantity of cannabis, one charge of theft of electricity and one charge of possession of drugs. The total effective sentence was two years and eight months' imprisonment, with a non-parole period of 16 months. On the individual charge of commercial cultivation, a sentence of two years and six months' imprisonment was imposed. The prisoner had pleaded guilty to cultivating 8.5 times the threshold for a commercial quantity, namely 211.96 kilograms (175 plants). The offending was undertaken alongside at least four co-accused. Three separate properties were involved, a factory, a Williamstown premise and the prisoner's residential home. He was described as the principal for the crop grown at his own home. He was found to have played a significant role for the second property and a limited role for the third property. He was paid $6000 in his role for the cultivation of the crop. The operations involved sophisticated hydroponic equipment. The period of offending was seven and a half months. The mitigating factors bearing upon McGrath's case were his relative youth, his prospects of rehabilitation and his lowered moral culpability for the offending as he suffered from a serious drug addiction and was in a precarious financial situation at the time of the offending.

77 In Latif,[84] the offender Azmi was sentenced on one charge of cultivation of a commercial quantity of narcotic plant to two years and four months' imprisonment, with a non-parole period of 15 months. He pleaded guilty to cultivating 1.61 times the threshold for a commercial quantity, namely 161 plants.[85] One property was involved, and sophisticated hydroponic equipment and an electrical bypass were used. The offending was undertaken alongside two co-accused. Azmi was found to have played a lesser role than his two co-offenders, the latter being described as the principals of the operation. He was said to have rented the factory and paid for shipping containers. There was evidence that not only had he been seen to attend the premises on a number of occasions, but that he had also been seen tending to the plants by placing nutrients into the watering system. The period of offending in Azmi's case was 19 days. There were compelling mitigating factors obtained in Azmi's case. These included the existence of a dysthymic depressive illness attracting the principles in Verdins, his previous good character and his relative youth, being 27 years old at the time of the offending. He also was found to have good prospects of rehabilitation and enjoy family support.

78 In Barton,[86] the offender was sentenced on one charge of cultivation of a commercial quantity of narcotic plant to two years' imprisonment, with a non-parole period of nine months. He pleaded guilty to cultivating 5.3 times the threshold for a commercial quantity, namely 132 kilograms (160 plants).[87] The offending was undertaken individually. One property was involved. The period of offending was some five months. The mitigating factors were his entrenched and significant addiction to cannabis, it being accepted that the crop was grown partially for his own use. Barton was also found to have suffered from long-standing depression. He had no relevant prior convictions, exhibited remorse and had good prospects of rehabilitation.

79 By contrast, in Bui v The Queen,[88] the offender was sentenced to a total effective sentence of five years' imprisonment, with a non-parole period of three years. On the individual charge of cultivation of a commercial quantity of cannabis, he received a term of four years and six months' imprisonment. He pleaded guilty to cultivating two times the threshold for a commercial quantity, namely 56.54 kilograms (94 plants). The appellant was a principal, the offence took place over a period of three months, he had a history of prior very similar offending, and there were no significant mitigating factors. The offending was undertaken individually, with financial gain being the sole motivation. One property was involved, with sophisticated hydroponic equipment used on the premises. The period of cultivation of the crop was two months. Bui had arrived in Australia as a refugee 20 years ago and, at the time of the offending, was 65 years' old. He also had relevant prior convictions, having been sentenced to a suspended sentence of twelve months' imprisonment and a Community Corrections Order of twelve months' duration for trafficking narcotic plant in circumstances very similar to the present offending where three rooms in a house had been converted to cultivation.

80 In Nguyen v The Queen,[89] the offender was sentenced on the charge of cultivation of a commercial quantity of narcotic plant to a term of three years' imprisonment, with a non-parole period of two years. He pleaded guilty to cultivating approximately two times the threshold for a commercial quantity, namely the yield weight of 47.3 kilograms.[90] The offending was undertaken in a group, with the accused being described as the principal cultivator. The crop was grown on one property, with extensive and sophisticated hydroponic equipment and an electrical bypass on the premises as well as on a second property set up for the purpose of commercial cultivation. The period of the offender's involvement in cultivation was three months. Strong evidence in favour of mitigation was found, the offender suffering from post-traumatic stress disorder and major depression. He had no prior convictions, had exhibited remorse and had good prospects of rehabilitation. The table of cases annexed to this case showed that only one sentence greater than the sentence imposed in Bui had ever been imposed.

81 The respondent relied upon the 2013 decision of Nguyen v The Queen.[91] The offender in that case cultivated a commercial quantity of narcotic plants in large numbers over three locations. In all, well over 1,000 plants were discovered. The offender had no prior convictions. He was 60 years of age at the time of sentence and had come to Australia as a refugee from Vietnam. After a trial he had been found guilty of four charges of cultivating a narcotic plant in a commercial quantity, one charge of trafficking in a narcotic plant and four charges of theft of electricity. The County Court judge imposed a total effective sentence of six years and nine months' imprisonment with a non-parole period of four years nine months. On each of four charges of cultivation of a commercial quantity of narcotic plants the appellant was sentenced to five years' imprisonment. He was sentenced to a term of one year nine months' imprisonment on each of the four charges of theft. This Court found that the sentences imposed were not manifestly excessive.

82 It was observed in Bui that since 2007, sentences imposed for the offence of cultivating a commercial quantity of narcotic plants where the offender was a principal range from 15 months (where the offender received a discount for agreeing to give evidence against a co-offender) to six years nine months.[92] Sentences both higher and lower than that imposed on the appellant for commercial quantities comparable or higher to that for which the appellant was charged, namely, two and half times by the number of plants, or one and a half times by the weight of the plants, could be identified.

Drug Offences Report examining sentences from 2008-09 to 2012-13

83 The limitations upon the proper use of statistics and sentences passed in other cases are well known. They can and should provide guidance and stand as a yardstick against which to examine a particular sentence, but they are not to be regarded as some sort of 'benchmark'. Bearing in mind this limitation, the respondent argued that as the sentencing statistics in the Drug Offences Report were compiled on the basis of the total effective sentence imposed in each case, their application to the present case, in which the total effective sentence included the sentences imposed for theft of electricity and trafficking, was limited. Further, it was said that the appellant was treated appropriately for the severity of his offending, reflected by the fact that the median term of imprisonment imposed in the second cluster of 202 cases ('Cluster 2')[93] was higher than the sentence imposed on the appellant. The imposition of a sentence of two years and six months' imprisonment on the charge of commercial cultivation upon the appellant was said to be consistent with the sentences imposed for mid-range offending.

84 It was recognised by both parties that the Drug Offences Report contains two relevant clusters of cases involving commercial cultivation.[94] In the first cluster of 201 cases ('Cluster 1'), all of the offenders were crop-sitters or played an ancillary role. They were typically involved in a short period of offending and were relatively youthful offenders with less likelihood of previous criminality. The median term of imprisonment for Cluster 1 cases was two years.[95] In Cluster 2 cases, 77 per cent of offenders played a principal or proprietary role. There was typically a longer duration of offending, involving offenders older than 35 years of age and with a criminal history. The median term of imprisonment for Cluster 2 cases was three years.[96] The appellant submitted that, having regard to the qualitative nature of the offender and the offending reflected by each cluster, his personal circumstances and his role was more akin to Cluster 1 cases. The total effective sentence he should have received, it was submitted, should have fallen toward the lower end of the spectrum, either in Cluster 1 or in the bottom range of Cluster 2. For reasons I have already given this submission cannot be sustained.

85 Cluster 1 and Cluster 2 in the Drug Offences Report rely upon total effective sentences for offending which included the primary offence of cultivation of a commercial quantity of cannabis.[97] The total effective sentences are likely to also include a charge of theft of electricity but it is unlikely that a sentence for trafficking (on which the appellant was also sentenced) will also be found within most of those total effective sentences. Had the appellant not received an additional sentence for trafficking, the appellant's total effective sentence would have been three years' imprisonment, the median term of imprisonment for Cluster 2 cases. As the appellant's role is properly to be characterised as mid-range offending involving participation akin to that of a principal, the Cluster 2 cases show that the sentence imposed on the appellant, fell within CSP.

86 It is plain enough that CSP as exposed by this analysis does not show that a sentence of two years and six months' imprisonment on charge 1 was beyond a sound exercise of the sentencing discretion. The sentence imposed does bear an appropriate relativity to the existing range of sentences that have been imposed for this category of seriousness of the offence. For mid-range offending, the Drug Offences Report is an indicator that a total effective sentence of three years and six months' imprisonment which includes a sentence of two years and six months' imprisonment on charge 1 was reasonably open.

Cumulation of part of the sentences for theft of electricity and trafficking

87 The appellant also submitted that as charges 1, 2 and 3 arose from conduct on the same two properties, the judge's orders for cumulation of three months' imprisonment on each of charges 2 and 3, was also excessive. During oral submissions, the appellant conceded that the product of each houses involved a commercial quantity and, as such, the principle of totality would not necessarily be offended by some cumulation in respect of charges 2 and 3.

88 The submission that the orders for cumulation were excessive cannot be sustained. The offence of commercial cultivation of a narcotic plant and the offence of theft of electricity are commonly found to arise from the same set of facts and orders for cumulation on the charges of theft of electricity are not unusual.[98] What is less common is the combination of sentences for those offences with a sentence for the offence of trafficking.

89 I would adopt as apposite to the present case, the observations made in Nguyen v The Queen[99] by Kaye AJA (as his Honour then was), with whom Redlich and Whelan JJA agreed,[100] as to the significance of orders of cumulation of terms of imprisonment for theft of electricity upon a sentence of cultivating a narcotic plant in a commercial quantity The thefts were sophisticated, and premeditated. They were for the purposes of undertaking an enterprise, the motive for which was greed. The thefts increased the profitability of the illicit enterprise and were also designed to conceal the enterprise from detection. The principles of denunciation and general deterrence were therefore of significance.

90 In respect of charge 4, the appellant submits that 6 months cumulation of that sentence was excessive in light of his absence of prior convictions and because his conduct arose against the background of charge 1. I reject that submission. The appellant's engagement in trafficking indicated more expansive involvement than cultivation alone. It was a discrete offence. As such, the appellant's trafficking in addition to the other offences with which he was charged served to emphasise that general deterrence and denunciation loomed large in the sentencing synthesis. The orders of three months cumulation of each of the sentences of electricity and six months' cumulation on the trafficking charge was well within a sound exercise of the sentencing discretion and did not offend the principle of totality. Those orders did not result in a total effective sentence that was excessive.

91 The contention that the non-parole period was excessive is also without substance. Although there is no usual ratio between the head sentence and the non-parole period, sentencing practice shows that ratios 'between 60 and 66% and up to 75% of the head sentence are not regarded as uncommon'.[101] Sentencing practice provides a guide for the sentencing judge as to what ratio may be appropriate.[102] It bears noting that the non-parole period imposed in the instant case was approximately 72 per cent of the total effective sentence. That ratio is far from unusual.

93 The Director foreshadowed on the leave application that he would submit on the appeal that CSP for the mid category of seriousness of cultivating a commercial quantity of cannabis, into which the appellant's conduct fell, required correction as, despite the increasing prevalence of the offence, it remained too low and too narrow and had given rise to inconsistency in sentencing of such offenders. Maxwell P relied on this consideration in support of the grant of leave.[103]

94 On the hearing of the appeal the Director submitted that regardless of the outcome of the appeal this was a case in which it was appropriate for the Court to state that there should in the future be an upward correction in sentencing for this category of the offence. At the invitation of the Court, the Law Institute of Victoria ('LIV') and the Criminal Bar Association ('CBA') filed joint submissions as interveners on this issue. They contend that this is not the occasion to correct current sentencing practice, if it should be corrected, as it would not be determinative of the appeal. They drew upon the dissenting reasons of Ashley JA in Ashdown, that the Court should decline to entertain the Director's submission on the ground that the issue was 'not before the Court requiring its determination and that the jurisdiction to quell that dispute is not engaged'.[104] They submit that it is only on a Crown appeal, and then only in circumstances where the prisoner has pleaded not guilty, that an appellate court may undertake this course. Otherwise, a correction to sentencing practice could not result in the imposition of a higher sentence in the case before the Court.

95 During the course of oral submissions the LIV and CBA appeared to qualify this submission. They acknowledged that on both prisoner's and Director's appeals the Court of Appeal may express views on matters of sentencing standards 'that may not necessarily determine the appeal' but that it must be related to the appeal 'in more than a theoretical fashion.' It was contended there was no sufficient nexus in the present case between the examination of CSP for mid category offending which had been explored on the substantive appeal and any possible correction of CSP for that category of offence. Therefore the Court should refrain from any commentary upon the adequacy of CSP.

96 For the reasons that follow, each aspect of that submission must be rejected. The circumstances in which an appellate court may address the adequacy of CSP are not so circumscribed.

97 First the contention that an appellate court may not correct CSP unless it is determinative of the appeal is inconsistent with the established line of authority referred to in my judgment in Ashdown,[105] with whom Maxwell P agreed, and to which I shall make some further reference. In Winch v The Queen,[106] a prisoner's appeal which preceded Ashdown, the Court expressed the view that sentencing standards for the offence of recklessly causing serious in injury 'by glassing' was too low though it was not determinative of the appeal. The reasoning in Ashdown has been approved or applied in a number of subsequent decisions of this court.

98 In Director of Public Prosecutions v Werry,[107] a bench of five judges, by way of dicta, affirmed the entitlement of an appellate court to express its views as to the adequacy of current sentences in an appropriate case. I agree with the conclusions reached by Tate and Whelan JJA in their respective reasons, that there is nothing said in Werry that precludes a decision in this appeal that CSP for this offence should be increased in the future.

99 The view that CSP may be reviewed and increased in the future was again stated in Director of Public Prosecutions v Daing.[108] In Director of Public Prosecutions v CJA[109] and again in Anderson v The Queen,[110] it was recognised that where one of the circumstances set out in Ashdown exists, a review of CSP may be warranted.[111] In Hogarth v The Queen,[112] a prisoner's appeal, the Court, applying Ashdown, expressed the opinion that CSP for aggravated burglary was inadequate, and should be uplifted though it was not determinative of the appeal. In Harrison v The Queen,[113] also a prisoner's appeal, the Court applying Ashdown found CSP with respect to negligently causing serious injury in driving a motor vehicle was too low and stated that it should in the future be increased though it did not affect the outcome of the appeal. By definition the prospect of a warning that in the future CSP should be corrected will not be determinative of the appeal.

100 All of the above cases including Winch, that applied the reasoning in Ashdown, were prisoner's appeals.

101 Appeals, whether on the ground of manifest excess (prisoner's appeal) or manifest inadequacy (Crown appeal), will be dismissed where it is found that the sentence imposed fell within the range that was reasonably open, but that does not preclude the appellate court from exercising its jurisdiction to provide guidance as to CSP.

102 Second, the cases to which I shall now turn also illustrate that a warning that there should be a future upward correction in the sentencing standard applies to both prisoner's and Crown appeals. The joint reasons of the High Court in Poyner v The Queen,[114] that an intermediate court of appeal may, by way of warning, indicate that in the future, sentencing for a particular offence should be incrementally increased were given in the context of a prisoner's appeal. Poyner had appealed to the New South Wales Court of Criminal Appeal against his sentence. Street CJ delivering the judgment of the New South Wales Court of Criminal Appeal observed that the prisoner challenged the sentence imposed on the basis that it was markedly greater than the pattern of sentences for that category of offending.[115] The Chief Justice evaluated the significance of the sentencing pattern that had been demonstrated by the cases to which the court had been referred and said 'that it was timely to correct that sentencing pattern and to indicate the level of sentence appropriate for facts such as the present' and that the sentencing pattern 'should be corrected by this Court in the exercise of its jurisdiction in that regard.'[116] His Honour identified a number of factors - all being reasons subsequently listed in Ashdown[117] - that justified that course.[118] The sentence originally imposed was significantly reduced though not by so much as to conform with what was found to be an inadequate existing sentencing standard. That, it appears, gave rise to the appeal to the High Court.

103 The 'jurisdiction' to correct CSP to which Street CJ referred in Poyner in the course of the prisoner's appeal, was the jurisdiction to establish matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons'.[119] The power extends to doing what is necessary to avoid errors or inconsistency in sentencing. An appellate court may do so by establishing standards of sentencing or by indicating an appropriate sentence range or a category of seriousness of an offence, the jurisdiction not being confined to circumstances where the individual sentence before the court is corrected.[120]

104 An example of the court's overarching jurisdiction may be found in R v Pidoto[121] where the prisoner's appeal was allowed and the prisoner resentenced. Callaway JA observed: [122]

One of the functions of an appellate court is to decide the instant case. What I have written so far discharges my obligation in that regard. Another function of an appellate court is to decide more far reaching questions of law and practice. That is the function discharged by the other members of the Court in their judgment. I agree with it in part, particularly their Honours' identification of the difficulties faced by sentencing judges in forming a reliable opinion about the relative harmfulness of trafficking in different kinds of drugs of dependence.

105 The joint reasons of the High Court in Poyner drew upon the judgment of Bray CJ in R v Barber[123] and Nader J in Breed v Pryce.[124] Both were prisoners' appeals against sentence. They were specifically referred to as examples of appeals where the Court had expressed the view that past sentences for a particular offence were too low. In both cases a warning was given that in the future there should be an upward trend in sentencing. The High Court described those cases as providing useful guidance as to the course that may be followed but added that such cases 'do not state a binding principle'.[125]

106 There are decisions of other intermediate appellate courts to the effect that such a warning may be given in prisoner's appeals where the outcome remained unaffected by the warning. For example in R v D,[126] a prisoner's appeal, Doyle CJ reviewed sentencing standards in cases involving multiple counts of serious sexual offending, all of which included unlawful sexual intercourse. He then corrected the sentencing standard in these terms:[127]

This review of the decisions of this Court leads me to think that in future the sentences imposed for cases like this should be increased for persons who commit such offences in the future. By this I mean cases involving a course of conduct including unlawful sexual intercourse with a child, and committed by a person in a position of trust and authority.

107 In the prisoner's appeal in Hampton v The Queen[128] Hulme J, with whom Beazley JA (as she then was) and Latham J agreed, approved the observations in R v McIvor,[129] also a prisoner's appeal in which Howie J (with whom Tobias J agreed) said:[130]

In support of the third ground of appeal the applicant has called in aid sentencing statistics and they reveal, as is often the case, that the sentences actually imposed do not appear to reflect the statutory maximum penalty of 20 years. The sentencing statistics are frequently being used to displace the maximum penalty so that the sentencing court and this Court are being asked to have regard to the highest sentence that has been imposed in order to determine the appropriate sentence to be imposed in the instant case. The statistics indicate to me that the range of sentences being imposed for multiple armed robbery offences is too low

... Some of the sentences on their face seem to me to be manifestly inadequate in light of the large number of offences for which sentence was being imposed or that were being taken into account. ...

108 In the prisoner's appeal in Stock v The Queen,[131] Schmidt J delivering the primary judgment of the Court referred to the Crown argument that the sentence review on which the applicant had relied, itself showed that sentences being imposed on offenders for the relevant offence might be considered to be too light and that the position should be corrected by an incremental upward trend in penalties.[132]

109 The assertion that the court's jurisdiction to correct CSP is limited to cases where the prisoner has pleaded not guilty rests upon the further false assumption that a court is bound to give effect to the expectation of the prisoner who has pleaded guilty, that he would be sentenced in conformity with existing CSP. It is erroneous to think that appeals proceed upon the basis that the appellate court may not apply a sentence standard that is higher than the prevailing standard on a prisoner's appeal where the prisoner has pleaded guilty.

110 This appeal was conducted on the basis that, the respondent having pleaded guilty, the adequacy of the appellant's sentence should be assessed in accordance with CSP. If he fell to be resentenced, he should be sentenced in accordance with prevailing sentencing practice.[133] While fairness to the prisoner will ordinarily dictate that course, it does not have to always be so. The joint reasons of the High Court in Poyner state that the approach of giving of a warning before increasing a sentencing standard is 'not a binding principle.'[134] Hence it was observed in Ashdown, that giving a warning that a sentencing standard would in the future be uplifted was 'not necessarily a prerequisite for increasing the prevailing standard of sentence before increasing the range of penalties'.[135] A prisoner's plea of guilty does not bar consideration of the adequacy of existing practice and the application of a corrected standard to the appeal then under consideration.

111 Doyle CJ in R v D[136] did not consider it necessary for the court to always give a warning before increasing the range of penalties for a particular type of offending. In addition to Poyner v The Queen, Doyle CJ cited the reasons of King CJ in Yardley v Betts and other authority for that position.[137] He then said:[138]

Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.

112 The Court in Hampton v The Queen[139] took issue with the statement by Howie J in McIvor[140] that the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that the Court might think is appropriate. Hulme J, with whom Beazley JA (as she then was) and Latham JA agreed, said:[141]

Such an approach is adopted when a court has to sentence for an offence decades or so old and sentencing standards have changed in the interim. However to adopt it as a general proposition would be to emasculate the role of this Court in ensuring that sentencing levels are appropriate and, if too low, are adjusted upwards. Among the most obvious examples of this are the decisions of this Court in R v Henry and R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 and although both of those cases were decided by 5 judge benches, such a Court has no more power than does the Court when constituted by 3 judges. Furthermore, it is difficult to reconcile Howie J's remarks with the observations of 5 members of the High Court in Poyner v R.

113 The reference by Hulme J to the observation in Poyner appears to be a reference to the statement that 'there is no binding principle' that a warning must be given. Hence in Ashdown, it was said that the Crown will not 'usually seek to justify the sentence imposed'[142] by inviting the Court to apply a higher standard of sentence than the existing standard. The absence of a binding principle requiring a court to give warning before increasing a prevailing standard of sentences for particular crimes has been confirmed or applied on numerous occasions.[143]

114 Considerations of fairness that may arise on either a prisoner's or Crown appeal will usually explain why an intermediate court of appeal chooses not to visit a prisoner with the proposed increase in the standard of sentence. That is however a matter of discretion, not binding principle.[144] Statements of this Court that fairness dictated in a particular case that a prisoner who had pleaded guilty should not be visited with an uplifted sentencing standard reflects merely the unchallenged assumption upon which the Courts will ordinarily be invited to and do proceed. None of those cases involved consideration of the issue which in such a way as to be binding on future courts.[145]

115 Courts, moved by considerations of fairness, generally determine the appeal by reference to the existing sentencing practice rather than a standard that the Court considers should in the future apply. But an appellate Court does not approach an appeal on the basis that the prisoner cannot be sentenced on the basis of a corrected sentencing standard. For example in Director of Public Prosecutions v Faure,[146] a Crown appeal was allowed in this Court on the ground that the sentence was wholly disproportionate to the gravity of the offence and was manifestly inadequate. The prisoner had pleaded guilty. He submitted that any change in sentencing standards should be introduced gradually and in the future. In rejecting that submission the Court said that any inconsistency between the new sentence the Court was to impose and existing practice, since the maximum penalty had been increased, was to be explained on the basis that the Court distinguished those decisions since the maximum had been increased.[147]

116 The possibility that existing sentencing standards may be corrected has the potential to affect the outcome of the appeal. It would be antithetical to an appellate court's overarching duties, were the court to be denied jurisdiction to correct an existing sentencing practice because the offender assumed that the impugned sentence would necessarily be assessed according to existing sentencing practice. The fact that a prisoner has pleaded guilty does not deprive an appellate court of jurisdiction to impose a sentence in accordance with the sentencing standard that the court thinks appropriate rather than the existing sentencing practice. On a prisoner's appeal based upon a ground of manifest excess, even though the sentence imposed manifestly exceeded CSP, the application of a corrected sentencing standard may result in the appeal failing or in the sentence being reduced but by an amount less than would have been required had CSP applied. On a prisoner's appeal, if for any reason the court is considering imposing a more severe sentence than the sentence first imposed, the court must give the appellant a warning that the appellant faces that possibility.[148]

117 No reason having been shown why this Court should not address the adequacy of CSP for cultivation of a commercial quantity of a narcotic plant, I turn then to the reasons advanced by the Director as to why there should be a correction to the prevailing standards for offending falling within the mid category of seriousness of the offence.

Does CSP for mid category seriousness for the offence of cultivation of a commercial quantity of a narcotic plant require correction?

118 Drawing upon the circumstances enumerated in Ashdown, the Director submitted that current sentencing practice should in the future be uplifted. In his written submission the Director contended that the offence has become more prevalent; that there has been a persistent error in the manner in which the relevant category of offender has been treated; and the objective seriousness of particular conduct has been wrongly categorised. In oral argument the last of these arguments was not pressed. Rather senior counsel further submitted that CSP discloses that the band of sentences for mid category seriousness for this offence is not only too low but is compressed and too narrow. He also submitted that CSP failed to adequately address the objective seriousness of this category of the offence resulting in significant inconsistency in the application of sentencing principles and the manner in which this category of the offence has been treated.

119 In granting leave Maxwell P observed that a review of sentence appeals concerning this offence revealed that similar or lower sentences had been imposed for offending involving much greater quantities of cannabis. There were also comparable cases where lower sentence have been imposed. Thus, the ground of manifest excess was considered at least arguable. The President considered however that the appeal provided an opportunity for the Court to consider the adequacy of CSP to which he had drawn attention some time previously in Nguyen v The Queen.[149] Maxwell P drew attention to three 'Sentencing Snapshots' published by the SAC for the offence:

The President concluded that the ground of manifest excess in this case raised the question whether sentences being imposed for this offence adequately reflect the objective seriousness of the offending.

120 The first SAC Snapshot published for this offence in March 2008 dealt with the five years commencing 2002-3.[153] In that year 15 people were charged with this offence. In the following four years the number varied between 51 and 68 people. It showed that terms of imprisonment ranged from 1 year to 6 years while the median length of imprisonment was 2 years 6 months.[154] The average length of imprisonment ranged from 2 years 1 month in 2003-4 to two years 11 months in 2002-3.[155] What is of significance is the fact that the median and average sentences have not materially altered over the period between 2002 and 2015.

121 The Sentencing Snapshot for the period 2004-05 to 2008-09 for this offence[156] shows that in each of the years considered, the number of persons charged with this offence varied between 50 and 69, the average length of imprisonment ranged from 2 years and 1 month to 2 years and 7 months.[157]

122 During the period of this Snapshot, this Court published its decision in Pidoto[158] which held that it is the quantity of the drug of dependence which justifies its characterisation as 'commercial' and not any property of the drug in question.[159] The Court adverted to the fact that the view had prevailed that cannabis and its derivatives were less dangerous than many other prohibited drugs and that sentencing courts had acted upon that basis,[160] but that more careful consideration of the empirical evidence had led to recognition that cannabis could no longer be described as 'comparatively innocuous'.[161] The Court referred to sentences under the Drugs Poisons & Controlled Substances Act 1981 which showed that offences committed with respect to drugs such as heroin had been treated for sentencing purposes as 'inherently more heinous and serious than offences involving cannabis'.[162] The Court emphasised that the sentencing court is precluded from bringing to bear any view about the tendency of the drug of dependence to cause harm.

123 By the commencement of this millennium, judicial perceptions as to the harmfulness of cannabis had changed and commercial trafficking in cannabis was recognised to be notorious although in some jurisdictions it was still regarded as a soft drug.[163] In Clohesy v The Queen[164] Buchanan JA said:

The possession of a commercial quantity of cannabis is a serious offence. Its gravity is reflected in the maximum penalty that Parliament has assigned to it. As the Full Court said in R v Pastras:

Those who have experience in the administration of the criminal justice system know that the prolonged use of marijuana can cause great harm, particularly to psychologically vulnerable individuals.

Leniency is not to be shown to a person who deals in marijuana on the basis that the drug is harmless. The legislation is predicated upon it being harmful . The principle of general deterrence is of special importance in relation to the crime of possession of a commercial quantity of a narcotic drug. Generally the offence requires the imposition of an immediate custodial sentence, which would usually only be avoided by exceptional countervailing factors.[165]

124 The Sentencing Snapshot for the period 2006-07 to 2010-11,[166] shows that the number of persons committing this offence in each of the years increased to 84 in the final year of that period under review.[167] The average length of imprisonment imposed during this period ranged from two years one month to two years seven months. Thus the average sentence remained in substance the same as for the previous period.

125 The period 2008-09 to 2012-13 for this offence were reviewed by the SAC in its Drug Offences Report.[168] The total number of offences each year maintained the increased level shown in the final year of the previous period reviewed. As with the previous two periods, there was little difference in the average sentences. The Cluster 2 analysis to which I have already made extensive reference (concerning principals) showed the median term of imprisonment to be 3 years and the range of sentences to be between 6 months and 6 years and 9 months,[169] the latter being the highest sentence imposed for offending in the uppermost category of seriousness.[170]

126 The SAC also undertook an analysis for the five year period 2010-11 to 2014-15.[171] During this period this offence was charged on 414 occasions with the median at 2 years.[172] In the final year, 2014-15, there was a noticeable reduction in the number of persons sentenced for this offence following the steady upward trend in previous years. The reduction in the last year coincided with a reduction across the board for sentences for all criminal offences in the Supreme and County Courts. The SAC suggested that the reduction in cultivation offences for that year needed to be considered in that context. The Director submitted this year to be an anomaly attributable to unrelated factors which are not indicative of a decrease in the prevalence of this type of offending.

127 Senior counsel for the LIV and CBA, whilst acknowledging that between 2010 and 2014 the number of cases per year hovered between 82 and 99, pointed to the decrease in the number of cases in the final year which it was submitted should not be ignored as an anomaly.

128 If reliance is placed upon the prevalence of an offence as warranting an increase in CSP, the frequency of the offence at the time that the impugned CSP became settled becomes relevant. A relevant question then is whether there has been an increase in the prevalence of the offence since that time. As CSP appears to have remained relatively static since at least 2004, the substantial increase in the number of offences from 2008-09 assumes a particular significance. That increase in the number of offences remained constant until 2014-15. But there is presently uncertainty as to why there was a significant reduction in the number of offences in the last year. I accept the LIV submission that the increased prevalence of the offence over the preceding six years must be viewed with some caution and should not be acted upon unless it can be shown that the trend of increased prevalence has resumed.

129 In his submissions the Director confined attention to the median and average sentences for this offence since 2010, contending they had remained steady. But the first two snapshots to which I have referred are of at least equal importance in that they show that CSP has remained relatively steady since 2004 notwithstanding the continuing increase in the number of offences throughout this decade save for 2014-15.

130 CSP as reflected by the statistics and comparable cases shows that offenders who were principals or organisers of others and who cultivated crops at the upper end of the mid category had never received a sentence above five years three months and very commonly received sentences in the two to three year range. Sentences falling at the lower end of this range were also imposed on crop sitters who actually fell within the lowest category of seriousness. Thus it was submitted there had been no adequate distinction drawn in sentencing practice between the lowest category of seriousness reserved for offenders such as crop sitters and who generally had no financial interest in the crop and those who were principals or organisers.

131 The Crown produced Tables A and B on the appeal which examined cases falling into each of the three categories of seriousness of offending. Those Tables indicated that a number of individual sentences were as low as two years for this mid category of seriousness of the offence of cultivation of a commercial quantity.

132 The LIV and CBA submit in their written case that the Director has not identified a particular category of this offence that requires correction but complains in the broad about CSP for this offence. In oral submission it was further contended that the Director now limited his submission to the upper category of seriousness of this offence as imposing a floor to this offence which is too low. I do not accept that this was the purpose of the Director's submission. The Director eschewed any intent to focus upon the adequacy of CSP for the upper category, maintaining that his argument was confined to the mid category of this offence into which the appellant fell. As Whelan JA observed during oral argument, the Director only sought to use the sentences imposed in the upper category to demonstrate the primary submission that sentencing for mid-category offending has been compressed in part because of the ceiling fixed by sentences in the highest category.

133 The Director referred to a series of cases[173] showing that in the upper category of seriousness where there are many times the commercial quantity threshold, there appears to be an upper limit around 5 years and 3 months which has not changed significantly over time. These cases illustrate the fact that CSP has effectively settled on an upper limit on sentences for this offence. It was said that this ceiling has had the effect of suppressing the lowest and mid-category seriousness offending into a narrow band of between one and three years resulting in demonstrable inconsistency in the application of that narrow band to the two categories of offending. Thus a court sentencing for the mid-category of this offence would be constrained to impose a sentence within the narrow band, otherwise the sentence would equate with sentences applied to the upper category of offending. The Director further submitted that at the bottom end of the range the sentences imposed have overlapped with sentences in the lowest category applied to persons who are no more than crop sitters. Senior counsel described the sentences in the mid category of seriousness to be a 'mess' and 'all over the place.' CSP permitted like cases to be treated unequally.

134 In his written case the Director had advanced the circumstance that 'the objective seriousness of particular conduct had been wrongly categorised', but in oral argument it was explained that the complaint was not that there had been an error in categorisation of the offending conduct, but that there had been a consistent error in evaluating the objective seriousness of offences falling within mid-category seriousness. That remained the focus of the Director's submission.

135 The LIV and CBA submitted there was no such error; that one should have regard to the relative commercial nature of different drugs of dependence; that the financial return from cultivation of cannabis is substantially lower than commercial importation or trafficking in other drugs of dependence. Reliance was placed upon the principle discussed in Director of Public Prosecutions v Maxwell.[174] Allied to this point was the submission that the weight of cannabis reaching the consumer is considerably lower than at the point of cultivation. It is said that the financial realities of cultivation are relevant to the objective gravity of the offence, to specific and general deterrence and to community protection. I reject the contention that the financial return from cultivation of a commercial quantity of cannabis explains or could justify existing CSP.

136 Pidoto makes clear that no distinction in harmfulness is to be made between a narcotic plant and other drugs of dependence. As Pidoto further explains, the quantity which Parliament specified as the amount constituting a 'commercial quantity' of a particular drug was lowered by the Sentencing and Other Acts (Amendment) Act 1997. The amount specified for each drug of dependence was determined by calculating how much of that drug was necessary to produce a profit of between $100,000 and $250,000.[175] The statutory presumption was that the quantities selected as the 'commercial quantity' for each drug of dependence would lead to a 'consistency of monetary value' across the range of drugs. Therefore the starting point is that the profit return from a bare commercial quantity of each drug is of the same order. That is not to say that evidence of the financial reward received or anticipated by an offender is of no relevance to the objective gravity of an offence involving a drug of dependence, particularly if the amount derived or to be derived is unusually high or low.

137 It was a matter of significance that the LIV and CBA accepted in oral argument that based upon the analysis of the SAC and the further information furnished by the parties, that sentencing in the relevant area could be described as 'chaotic' and demonstrated inconsistent sentencing in relation to both crop sitters and principals. Despite conceding the unsatisfactory and inconsistent standards for both crop sitters and principals, it was submitted that an absence of numerical equivalence did not necessarily demonstrate inconsistency in the application of principle. It was conceded during argument that the inconsistencies in sentencing for this particular category of seriousness of the offence was indicative of an inconsistency in the application of sentencing principles. All other things being equal, it was accepted that if someone was a principal and a beneficiary of the cultivation, then absent unusual circumstances, sentencing principles would dictate a particular range of sentencing outcomes if the relevant sentencing principles were applied with consistency.

138 The substantive appeal involved a detailed examination of current sentencing practice for a mid-category offence of cultivation of a commercial quantity of a narcotic plant. The examination of comparable cases and the Drug Offences Report informed an assessment of the existing range of sentences for this category of the offence and whether the sentence imposed fell within or outside that sentencing practice. This information revealed the narrow breadth of the applicable range and the inadequate demarcation of this standard from the lower and upper categories of seriousness for this offending. Consideration of these issues on the substantive appeal leads inexorably to the conclusion that some guidance as to principle and correction to the sentencing standards for this category of offending is urgently needed.

139 It is instructive that over the last decade this Court has directed attention to the seriousness of this offence, its increasing prevalence and the inadequacies of the existing practice. A useful starting point is Doan v The Queen.[176] T Forrest AJA (with whom Nettle and Harper JJA agreed) said:[177]

The offence of cultivating a commercial quantity of cannabis is a serious offence carrying a maximum of 25 years imprisonment. Whilst there is no doubt that the role played by the appellant was of a menial nature, it was nonetheless necessary for the crop to flourish. The maximum penalty fixed by parliament unambiguously demonstrates how seriously the community views this conduct (see DPP v Duong). Recently in this Court emphasis has been placed upon the importance attached to sentencing judges having regard to the maximum sentence fixed by Parliament (see Nguyen v The Queen, DPP v CPD). This court has also emphasised recently that general deterrence is an important consideration in sentencing for this type of offence (The Queen v Mason) and that the link between general deterrence and the increasing prevalence of this offence is readily apparent.

140 Nettle JA (with whom Harper JA agreed) further observed that there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations so that 'an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.'[178]]

141 Next in Nguyen v The Queen[179] Maxwell P said:[180]

As has been regularly pointed out in sentencing decisions, this is an offence for which Parliament has set the highest fixed maximum in the criminal calendar: 25 years' imprisonment. As Buchanan JA noted in DPP v Duong, the maximum of 25 years shows unambiguously how seriously the community, through the Parliament, views this conduct.

And it is of course irrelevant which drug is being cultivated. So much was made clear by the decision of this Court in Pidoto. Since that 2006 decision the sentencing regime has remained unchanged. There has been no move to establish a scheme under which the sentencing court is expected to decide whether one drug is more harmful than another. As the Court said in Pidoto, this is a quantity-based sentencing regime. Although quantity will not bear an arithmetical relationship to sentence, the quantity involved is a very significant matter in sentencing for these offences.

This Court has referred regularly in the last 12 months to the obligation of sentencing judges to have regard to the maximum sentence fixed by Parliament. As the Court said in DPP v CPD:

The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty.

In Duong, Buchanan JA said:

Generally this offence requires substantial punishment. The increasing number of hydroponic crops of cannabis detected in the last few years is material ...

In The Queen v Mason, his Honour said:

General deterrence is an important consideration in sentencing for the offence of cultivation of a commercial quantity of cannabis.

The link between increasing prevalence and general deterrence is self-evident.

142 Maxwell P then recorded the Crown's acknowledgement that a sentence of three years' imprisonment with a minimum of two was common for the offence and that such a sentencing practice was not consistent with what Parliament intended by setting such a high maximum. He then said:

According to the Sentencing Advisory Council's Sentencing Snapshot No 48 for this offence, over the five years 2002-03 to 2006-07 102 people were imprisoned for this offence. The prison terms ranged from one year to six years. The most common term imposed was two years, and the median was two years and six months. In only one of the 102 cases did the sentence exceed five years. (Five years is, of course, only 20 per cent of the maximum).

It may be that the figures up to 30 June 2007 reflect a pre-Pidoto view that cannabis was, relatively speaking, a harmless drug, or at least less harmful than other drugs of dependence. That view might partly explain what seems on the face of it to be a very low sentencing practice. But as Buchanan JA said in Duong:

The grave harm which cannabis grown by modern methods can inflict has been noted by many judges. Generally the offence requires substantial punishment.

What the Sentencing Advisory Council has published reflects a statistical range in which sentencing for the offence over that five-year period was capped at six years. An upper limit of six years seems impossible to reconcile with the statutory maximum of 25 years, since the figures for the five year period presumably include some cases of the more serious kind. It seems to me that the Victorian community would be entitled to ask why sentences for this offence have been consistently under - or well under - one-fifth of the maximum.[181]

143 Referring to the table of sentences for this offence annexed to the reasons for judgment Maxwell P then observed that the decisions set out in the table

raise real questions about sentencing consistency for this offence and also about whether current sentencing practice can be viewed as adequate in the light of the statutory maximum.[182]

144 The table of sentences set out in Nguyen v The Queen[183] was referred to in Bui where Redlich and Whelan JJA observed that despite the maximum penalty for the offence being 25 years, the appellant was able to call upon comparable cases and the Drug Offences Report to advance an argument that current sentencing practice cannot accommodate the sentence imposed in this case. The appellant argued that that sentence was at the very top end of sentences for this offence and the Crown accepted that it was at the top end. They observed in passing that the fact that such a submission could be made may indicate that something has gone astray in current sentencing practice, at least in the case of offences that fall within the more serious category of the offence.

145 CSP for cultivation of a commercial quantity of cannabis has remained static for more than a decade. That standard predates the Court's decision in Pidoto in 2006 despite the fact that the sentencing standards pre-Pidoto had been informed by the view that cannabis was a relatively less harmful drug.

146 The relevant statutory regime which has fixed the quantity of narcotic plant by reference to its realisable monetary value and the maximum penalty of 25 years demonstrate the seriousness with which the legislature views this offence. The materials published by the SAC for all offences which carry a maximum penalty of 25 years imprisonment show that the median sentence for cultivation of a commercial quantity of a narcotic plant for the period July 2009 to June 2014 including this particular category of the offence is 2.25 years, which is the lowest median for any of these offences and by a considerable margin.

147 The range of sentences for this particular category of seriousness of an offence became compressed at a low level, perhaps more than a decade ago. The sentence given to the appellant for mid category seriousness of offending was the same as that given to other offenders guilty of much less serious conduct. On the other hand, sentences can be found of the same order which were imposed for offending significantly more serious than that of the appellant. CSP has not adequately distinguished between significantly different degrees of criminality.

148 Not only is the range compressed but it is also apparent that the highest sentences imposed on a principal for cultivating a commercial quantity together with the lowest sentences imposed for cultivating a large commercial quantity have become a ceiling for the offence of cultivating a commercial quantity. CSP of the last decade does not reflect the objective seriousness of mid category offending having regard to the sentencing regime and the maximum penalty.

149 Despite the number of occasions this Court has commented upon the low level of CSP for this offence, CSP has remained the same. The sentencing range is not only low, but very narrow. The ceiling for the highest category has depressed sentences in the mid category so that the latter merges with offending in the lowest category. These sentencing norms have long ago replaced the maximum penalty as the guide to the seriousness of the offence. As a result, offenders who are principals in such offending are able to draw upon standards of sentencing that are entirely inappropriate to their degree of criminality.

150 Consistency in the application of the correct legal principles in sentencing, 'fundamental to the administration of criminal justice', means as the High Court said in Hili v The Queen - 'the treatment of like cases alike, and different cases differently'.[184] Sentences imposed upon offenders who fall within the mid category of seriousness do not reflect consistency in the applications of principle. There has been inadequate emphasis given to general and specific deterrence and denunciation. Consequently the standards set do not adequately reflect the objective seriousness of the offending or the offender's moral culpability for engaging in such criminal conduct for profit that is so harmful to the community.

151 The current sentencing regime has persisted for far too long. It has wrongly informed community thinking and left misconceptions unaltered in some parts of the community about the seriousness of such conduct.

152 For the immediate future, sentencing courts must, by increments, increase the sentences for mid category offending so that the range of sentences is uplifted and substantially expanded. To enable the identification of the correct sentence for particular offending conduct, CSP for that category of seriousness of the offending must be sufficiently broad to encompass a wide range of criminal conduct within that category of the offence. The corrected range should include sentences that have previously been reserved for offending which fell at the lower level of the upper category of seriousness. The uplifted range should not include sentences that have previously been reserved for less culpable offenders such as crop sitters falling toward the upper end of the lowest category.

153 In this case, from the time the leave application was heard, it was assumed that the appeal would be conducted on the basis that we would not increase the appellant's sentence although, as I have remarked, I consider that we would have jurisdiction to do so. As I would not uphold either ground the appeal must be dismissed.

Introduction and summary ................................................................................................

DPP v Werry and the requirement of a 'matter' ...............................................

'Matters' define federal jurisdiction .............................................................

State judicial power ...........................................................................................................

Limits drawn from the defining characteristics of a court of a State ........................

Constitutional constraints on sentencing .......................................................................

Commenting on adequacy of current sentencing practice ...........................................

An alternative reading of Werry .......................................................................................

154 I have had the benefit of reading, in draft form, the reasons of Redlich JA and those of Whelan JA.

155 For the reasons Redlich JA gives, I agree that neither of the grounds of appeal relied upon here[185] are made out and that the appeal should be dismissed.

156 I wish to add some observations of my own about the basis on which a State appellate court has jurisdiction to express a view as to the adequacy of current sentencing practice ('CSP'). Whelan JA places some reliance upon the decision of this Court in Werry[186] with respect to its requirement that the question of the adequacy of CSP 'must arise in the context of a "matter" which is before the court on the appeal'.[187] In my view, to require that the court have before it a 'matter', in the constitutional sense, is to misapply a federal requirement to State courts. If the Court in Werry intended to use the term 'matter' with its established constitutional meaning, I consider, with great respect, that the Court was plainly wrong.[188] If, however, the Court in Werry intended to use the term 'matter' in a loose sense, despite it having a technical meaning under the Commonwealth Constitution, its reasoning may be supportable although the use of the term 'matter' would, in my view, best be avoided in this context. On this alternative reading, adopted by Whelan JA,[189] the issue of the adequacy of CSP must, in a general sense, be a live issue between the parties on the appeal and one that the Court is required to address in that context. It is not necessary that an answer to that question in itself be determinative of the appeal.

157 As Redlich JA notes, on a prisoner's appeal, although the sentence imposed may have been inconsistent with CSP (because it is argued to be manifestly excessive), it may fall below a sentencing standard that appropriately reflects the principles applicable to that category of offending, and the appeal may fail. I agree with Redlich JA that the question of the adequacy of CSP for the offence of cultivation of a commercial quantity of a narcotic (cannabis) was properly raised in this proceeding and that, for the reasons Redlich JA gives, the CSP for a mid-category offence of cultivation of a commercial quantity of a narcotic plant is inadequate, particularly because the narrow breadth of the range of sentences imposed has failed to demarcate sufficiently the upper from the lower categories of seriousness for the offending. The recognition that the relevant CSP is inadequate should, in the future, lead to an increase in the sentences to be imposed for such offending in the mid-category of seriousness.

158 I consider it significant that Werry was an appeal brought by the Director of Public Prosecutions ('the Director') and not a prisoner's appeal, as here. It is to my mind clear that the Court has jurisdiction to consider the adequacy of CSP on a prisoner's appeal brought on the ground of manifest excess where consideration of that ground raises, as it does here, what Maxwell P described, in his reasons supporting the grant of leave, the issue of '"whether current sentencing practice, as reflected in ... comparable cases, constrain[ed] the sentencing judge to impose a lesser sentence than that which was imposed"'.[190] Indeed, as Whelan JA correctly observes, in this case it 'was the reason leave to appeal was granted'.[191]

DPP v Werry and the requirement of a 'matter'

159 In Werry this Court dismissed an application by the Director for the uplifting of CSP for the offence of rape. The prisoner had been convicted by a jury of two State offences, one count of rape and one count of trafficking in a drug of dependence (cannabis). He had been sentenced to seven years' imprisonment on the rape count and four months' imprisonment on the trafficking count, with one month's cumulation, giving a total effective sentence of seven years and one month, with a non-parole period of five years.[192]

160 An appeal was brought by the Director on the ground of manifest inadequacy. There was a separate stand-alone ground of appeal challenging the adequacy of the CSP for rape[193] which alleged that the CSP for penile-vaginal penetration was inadequate and sentencing judges should have only limited regard to past sentences when determining the appropriate sentences for rape.[194]

161 At the sentencing hearing, defence counsel had drawn attention to the then Sentencing Snapshot for rape, published by the Sentencing Advisory Council in June 2009, the offending having occurred in October 2008. The Snapshot showed that, in the five years to 30 June 2008, the median sentence for rape was five years' imprisonment. The median remained the same in the five year period to 30 June 2010. (The median for rape in the most recent Sentencing Snapshot has remained at five years.).[195] The sentencing judge expressed surprise that the median was 'only five years'.[196] The prosecutor submitted that the CSP for rape was inadequate because it did not reflect the maximum penalty of 25 years set by the Parliament and that the judge should therefore regard herself as unconstrained by CSP in sentencing. The sentencing judge, however, declined to consider the adequacy of CSP.

162 During the course of the hearing of the appeal, the Director abandoned some of the particulars supporting the ground of manifest inadequacy and indicated that he sought to support that ground on the basis of a confined set of particulars, including: (1) failing to have sufficient regard to (i) the maximum penalty prescribed for the offences and (ii) the nature and gravity of the offences; and (2) placing 'too much reliance on current sentencing practices in respect to the offence of rape'.[197] In arguing for the separate ground of appeal based on the inadequacy of CSP he also indicated that it would be open for the Court, in the circumstances, to exercise its undoubted discretion so as not to resentence the prisoner to a higher sentence.[198] The Court understood the Director as '[i]n essence ... not pressing for this sentence to be increased'.[199] The Court construed the Director as in effect practically making a concession, as 'indicat[ing] plainly that [he] did not seriously contend that a different sentence should have been passed'.[200]

163 The concession appears to have been understood as an acknowledgement that the ground of manifest inadequacy was not viable and that the argument with respect to CSP was the real source of the Director's motivation.

164 The concession was significant because it permitted the Court to be critical of the Director for bringing the appeal in circumstances in which the appeal was governed by the then s 567A of the Crimes Act 1958 which required the Director, as well as being satisfied that an appeal should be brought in the public interest, to consider that a 'different sentence should have been passed'. The Court considered that the 'different sentence' to which this referred was the sentence which should have been passed by the sentencing judge who was required by s 5(2) of the Sentencing Act 1991 to have regard to, amongst other things, 'current sentencing practices'.

165 It is noteworthy that appeals against sentence by the Director are now governed by s 287 of the Criminal Procedure Act 2009 which provides for the Director, before bringing an appeal against sentence, to be satisfied that 'a different sentence should be imposed', inviting greater attention to the sentencing disposition of the Court of Appeal rather than that of the sentencing judge.[201]

166 The Court dismissed the ground of manifest inadequacy, in the circumstances, as being without merit. It observed that 'it was the CSP question, and not the sentence under appeal, which was the driving force behind the institution of the appeal'.[202]

167 The Court indicated that the Director ought only bring an appeal on the ground of manifest inadequacy when he considers that the specific sentence imposed 'required a very significant adjustment'.[203] Unless that were so, it was said, 'he had no business instituting this appeal'[204] because it 'would be quite wrong to treat JW [Werry] merely as the "vehicle" by which the director could mount a broad and far-reaching attack upon sentencing practices in this State'.[205]

168 More generally, the Court concluded that it would have no jurisdiction to entertain an appeal unless there was a 'matter' before it. It said:

There is either a good case to be made for significantly increasing a sentence imposed at first instance upon a particular offender, or there is not. In a broader sense (and by analogy with basic constitutional principle), the jurisdiction of this court is engaged only when there is a 'matter' before it that is properly capable of giving rise to the exercise of judicial power. An appeal against sentence should not be brought essentially as an excuse to have this court determine matters of an abstract nature, important though that may be. It must be clear, before the jurisdiction of this court is invoked, that nothing in the nature of an advisory opinion is being sought, but rather a resolution of a dispute between the actual parties to the case.[206]

169 In the emphasised parts of the passage extracted, the Court observed that its jurisdiction is dependent upon there being a 'matter' before it and the term 'matter' is expressed in parentheses as reflecting a technical or defined term. The Court also referred to notions such as 'basic constitutional principle'; the boundaries of 'judicial power'; and the avoidance of 'advisory opinions'. In my view, it is open to read these remarks as intended to reflect the meaning of 'matter' within the Constitution. Read in this way, the Court in Werry was intending to assert that the jurisdiction of this Court is only enlivened when there is a 'matter' before it in the constitutional sense.[207]

170 Having concluded that the basis of this Court's jurisdiction is dependent upon the requirement that there be a 'matter', the Court in Werry nevertheless went on to confirm and condone the Court's capacity to express views upon the adequacy of CSP, when appropriate to do so, by reference to the criteria identified by Redlich JA in Ashdown.[208] The Court in Werry said:

Nothing set out above in any way casts doubt upon the proposition that this court is perfectly entitled, in an appropriate case, to express its views as to the adequacy of current sentences for this, or any other offence. It is the role of this court to lay down principles for the governance and guidance of courts having the duty of sentencing convicted offenders. However, that task must be approached with caution and performed with great care. We emphasise that it should be carried out only where it is appropriate to do so.[209]

171 With respect to the Court in Werry, I cannot accept that the exercise of judicial power by a State Supreme Court in relation to offences under State law depends upon the existence of a 'matter' before the Court. I consider this to be contrary to well established constitutional doctrine. Although there are limits upon the powers and functions that can be exercised by State courts, which I discuss below, I do not accept that the limit identified in Werry is correct. Furthermore, I consider that the erroneous observation in Werry that the Court had no jurisdiction to consider CSP because there was no 'matter' before the Court may have led the Court wrongly to conclude that the Director should not have brought the appeal, although once the Court had interpreted what was said by the Director as a concession that he did not consider that any different sentence should have been imposed, it may have had little or no choice but to dismiss the appeal. In order to explain my conclusions, and in deference to the Court in Werry, it is necessary to embark upon a brief summary of some central constitutional principles, including the difference between State and federal courts and the constitutional constraints which apply to them.

172 In Chapter III of the Commonwealth Constitution the original jurisdiction of the High Court is defined by reference to 'matters'.[210]

173 Section 75 and 76 of the Constitution provide as follows:

75 Original jurisdiction of High Court

In all matters:

(i) arising under any treaty;

(ii) affecting consuls or other representatives of other countries;

(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv) between States, or between residents of different States, or between a State and a resident of another State;

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

76 Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

(i) arising under this Constitution, or involving its interpretation;

(ii) arising under any laws made by the Parliament;

(iii) of Admiralty and maritime jurisdiction;

(iv) relating to the same subject-matter claimed under laws of different States.[211]

174 Section 77 empowers the Commonwealth Parliament to make laws with respect to the matters identified in ss 75 and 76 in defining the jurisdiction of federal courts and in investing State courts with federal jurisdiction:

77 Power to define jurisdiction

With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

(i) defining the jurisdiction of any federal court other than the High Court;

(ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;

(iii) investing any court of a State with federal jurisdiction.

175 The effect of s 71 of the Constitution is that the judicial power of the Commonwealth can be vested in the courts mentioned in s 71 of the Constitution and not otherwise. It relevantly provides:

71 Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

176 The requirement for a 'matter' forms the basis of an understanding of federal jurisdiction and the reason why that jurisdiction does not extend to the giving of advisory opinions:

The original jurisdiction of the High Court is restricted by ss 75 and 76 of the Constitution to the 'matters' there set out. Those 'matters' are defined either by subject matter or by reference to the parties to a suit. But the critical ingredient is the requirement of a 'matter'. This requirement for a 'matter' has been interpreted as a limitation on the power of the High Court and other federal courts to provide, for instance, advisory opinions or to exercise what has been characterised as non-judicial powers. The meaning of the term is important, therefore, in understanding the scope of federal jurisdiction.[212]

177 In In re Judiciary and Navigation Acts,[213] the High Court held invalid Part XII of the Judiciary Act 1903 (Cth) which purported to confer jurisdiction on the High Court to hear and determine any question referred to it by the Governor-General as to the validity of any enactment of the Commonwealth Parliament. The Court famously declared that there could 'be no matter within the meaning of the section [s 76] unless there is some immediate right, duty or liability to be established by the determination of the Court'.[214] The majority, in referring to the Commonwealth legislature, went on to say:

[Parliament] cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law ... we can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved.[215]

178 The requirement of a 'matter' thus limits the conferral by the Commonwealth Parliament of original jurisdiction on the High Court, on federal courts, and on the investing of State courts with federal jurisdiction. The meaning of 'matter' is expressed in two elements; the first reflects the source of the requirement as lying in the specific heads of jurisdiction identified in ss 75 and 76 and the second reflects the need for the determination of a justiciable controversy:

'Matter', therefore, has two elements: the subject matter itself as defined by reference to the heads of jurisdiction set out in Chapter III, and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy.[216]

179 The requirement of a 'matter' is the principal means by which the separation of powers is maintained at the federal level; this 'ensures federal courts maintain their distance from the other arms of government'.[217]

180 It is noteworthy that the High Court has not adopted an overly stringent approach to the need for a justiciable controversy. There is no need for a legal prohibition to have been sought to be enforced[218] and the referral of a question of law in a criminal appeal that could not affect an acquittal has nevertheless been held to constitute a 'matter'.[219]

181 It is important to emphasise, as Professor Leslie Zines has done,[220] that the invalidity of the law identified in In re Judiciary and Navigation Acts lay in its being construed as permitting a request for an advisory opinion, not in its failing to be an exercise of judicial power understood in a general sense. As an advisory opinion is not a 'matter', not being a justiciable controversy involving a determination of an immediate right, duty or liability, it could not fall within the High Court's jurisdiction. The law was invalid because, there being no 'matter', it was not within the judicial power of the Commonwealth. But this was not to say that it involved a departure from judicial power, understood more broadly. As Zines explains:

In In Re Judiciary and Navigation Acts the High Court (Higgins J dissenting) held invalid a provision which purported to confer jurisdiction on the High Court to hear and determine any question referred to it by the Governor-General as to the validity of a Commonwealth enactment. The main argument against validity was that the power granted was not 'judicial'. If the Court had accepted that argument it would have needed to decide the issue whether non-judicial power could be conferred on a federal court - a question which was not answered for another 35 years.[[221]] ... In order, presumably, to avoid that result the joint judgment pointed to the provisions conferring jurisdiction 'to hear and determine' (which they put in italics) a referred question of law and that the determination 'shall be final and conclusive and not subject to appeal'. The Court therefore concluded that Parliament desired to obtain 'not merely an opinion but an authoritative declaration of the law' (at 264), which the judges considered to be clearly a judicial function.

The determination of invalidity rested instead on the view that an advisory opinion was not a 'matter'. As all the heads of federal jurisdiction in ss 75 and 76 of the Constitution are restricted to 'matters' it followed that an advisory opinion, although judicial, was not within the 'judicial power of the Commonwealth'.[222]

182 The distinction drawn by Zines, between an exercise of judicial power (in a general sense) and the judicial power of the Commonwealth (which is dependent on there being a 'matter') is a crucial distinction to be kept in mind when making observations about the limits of jurisdiction of a State Supreme Court. In my view, the reasons in Werry collapse this distinction. They misapply a federal requirement to State courts. While the Court in Werry considered the requirement for a 'matter' to be drawn from considerations 'analogous' to basic constitutional principle, rather than directly from basic constitutional principle, the remarks wrongly suggest that the jurisdictional basis of a State Supreme Court is sufficiently similar to that of a federal court for the same restriction to apply.

183 It was confirmed in Commonwealth v Queensland[223] that a distinction is to be drawn between judicial power, on the one hand, and the judicial power of the Commonwealth, on the other. Jacobs J observed:

It was held in In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 that the determination of questions of law on a reference to the High Court was clearly a judicial function and could only be made, if at all, on an exercise of part of the judicial power of the Commonwealth. It was of course held that the determination of such questions, when they do not arise in a legal proceeding where there is some immediate right, duty or liability to be established by the determination of the Court, does not fall within the judicial power which may be exercised under Ch III. Thus judicial power is not co-extensive with the limits of the judicial power which Ch III of the Constitution prescribes.[224]

184 It can be accepted that in 'respect of the subject matters set out in ss 75 and 76 judicial power may only be exercised within the limits of the kind of judicial power envisaged in Ch III',[225] even by a State court. Referring to ss 76 and 76 of the Constitution, Jacobs J went on to say:

A State thus could not empower one of its courts to give advisory opinions on those subject matters. The court would be exercising judicial power but not a judicial power envisaged by Ch III and able to be conferred on it by the Commonwealth.[226]

185 To similar effect Gummow J emphasised in Gould v Brown[227] that judicial power is a broader concept than that of the judicial power of the Commonwealth:

It is convenient first to restate several basic propositions which are derived from decisions of this Court construing Ch III. ... federal jurisdiction is that authority derived from Ch III of the Constitution to exercise the judicial power of the Commonwealth and State jurisdiction 'is the authority which State Courts possess to adjudicate under the State Constitution and laws'. ... [Moreover] judicial power is not co-extensive with the limits of the judicial power of the Commonwealth identified in s 71; it was established by In re Judiciary and Navigation Acts that the content of the former is greater than that of the latter.[228]

186 The same point was made by McHugh J in Gould v Brown in referring to what was determined by In re Judiciary and Navigation Acts. He said:

[T]hat case holds that the content of the judicial power of the Commonwealth is narrower than the content of judicial power. In In re Judiciary and Navigation Acts this Court did not reject the conferring of non-judicial power on federal courts. That was not the issue that arose for decision. Rather, the Court rejected the conferring of judicial power that was not the judicial power of the Commonwealth. All members of the Court accepted that Pt XII of the Judiciary Act 1903 (Cth) purported to invest this Court with a 'judicial function'. What the majority denied was that this Court could be invested with a judicial function that did not involve the determination of a 'matter' within the meaning of ss 75 and 76 of the Constitution.[229]

187 As mentioned above,[230] the source of State judicial power is to be identified in the State Constitution and State laws. Under s 85(1) of the Constitution Act 1975 the Supreme Court of Victoria has 'jurisdiction in or in relation to Victoria ... in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction'. Pursuant to s 85(3) it has 'such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986'.[231] The reference to 'jurisdiction', 'powers' and 'authorities' reflects the former s 85(2) of the Constitution Act by which 'the Court had the powers and authorities previously possessed in England by the three common-law Courts, in the equitable jurisdiction and by the other superior Courts before their

187 amalgamation in the mid 1870s'.[232] Section 85(3) also picks up additional statutory jurisdiction that had been conferred upon the Supreme Court before 1986.[233]

188 The jurisdiction of the Supreme Court of Victoria, drawn from the superior courts of England, is not restricted by the requirement of a 'matter'. This was confirmed by Gummow J in Kable v Director of Public Prosecutions (NSW)[234] when he said:

[T]he term 'matter' in Ch III does not exhaust, and is narrower than, what otherwise might be within ordinary concepts of judicial power. Thus, in The Commonwealth v Queensland, Jacobs J pointed out that In re Judiciary and Navigation Acts was not decided as a case where it was sought to impose a non-judicial function upon the High Court. His Honour continued '[i]f it had been, the law as then understood [before the Boilermakers' Case] might not have caused this to be an invalidating characteristic'. Rather, it was decided on the footing that judicial power in a general sense was not co-extensive with the narrower limits of judicial power with which Ch III of the Constitution is concerned. Hence, jurisdiction conferred by a State legislature on the courts of the State may be judicial in character, albeit insusceptible of investment by the Parliament of the Commonwealth as federal jurisdiction pursuant to s 77(iii).[235]

189 It follows that 'there is no constitutional requirement that State courts deal only with the determination of "matters"';[236] that is, State judicial power is not dependent upon there being an immediate right, duty or liability to be established by the determination of the Court.

190 Indeed, not only is the judicial power of a State a broader concept than that of the judicial power of the Commonwealth, the latter being confined to 'matters', but it has also been accepted historically that State courts can perform non-judicial functions. As Gleeson CJ said in Mobil Oil Australia Pty Ltd v Victoria,[237] 'State courts may exercise non-judicial power'.[238] The plurality (Gaudron, Gummow and Hayne JJ) in Mobil Oil observed:

[T]o hold that the State law was invalid would amount to concluding that Ch III of the Constitution, or s 73 in particular, requires that State courts can exercise no power other than judicial power, a conclusion that has not been reached, and is not required by the Constitution.[239]

191 There is no strict separation of powers that applies to the States. This was confirmed in Kable by various members of the Court including by McHugh J who observed:

Nor is the federal doctrine of the separation of powers - one of the fundamental doctrines of the Constitution - directly applicable to the State of New South Wales. Federal judicial power may be vested in a State court although that court exercises non-judicial as well as judicial functions.[240]

192 State courts are not bound by the same restrictions as federal courts:

The Commonwealth Constitution does not impose a formal separation of powers on the States. While State courts and judicial systems are referred to in the Commonwealth Constitution and may be invested with federal jurisdiction, it has long been held that the Commonwealth must 'take State courts as it finds them'. As Isaacs J noted in R v Murray and Cormie; Ex parte Commonwealth, while the Commonwealth Constitution enables the Commonwealth Parliament to use the judicial services of State courts, it 'recognises in the most pronounced and unequivocal way that they remain "State courts"'.[241]

193 Nevertheless, the 'integrated'[242] (although not unitary[243]) nature of the system of federal and State courts means that 'the separation of federal judicial power prescribed by the Australian Constitution affects state court systems as well'.[244] As explained by Gummow J in Kable, in what has become known as the Kable principle, a State Parliament cannot confer functions upon a State court that are incompatible with its exercise of federal judicial power:

[A]s regards the courts of the States, there is no prohibition arising from the Constitution which operates upon State legislatures and necessarily bars the conferral upon State courts of authority which does not have the character or quality of the judicial power of the Commonwealth. Reference is made [by the Director of Public Prosecutions] to Le Mesurier v Connor. But this decision did not determine that a State legislature has power to impose upon the Supreme Court of that State functions which are incompatible with the discharge of obligations to exercise federal jurisdiction, pursuant to an investment by the Parliament of the Commonwealth under s 77(iii) of the Constitution. Nor, in the absence from the Constitution of the State concerned of an express statement of a separation of judicial power, reflecting that achieved by Ch III of the Constitution, did it imply such a capacity.[245]

194 To similar effect Gaudron J expressed the Kable principle in terms of repugnancy:

[T]here is nothing to prevent the Parliaments of the States from conferring powers on their courts which are wholly non-judicial, so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth.[246]

195 In summary, Kable recognised the following propositions as applicable to State judicial power:

(1) The scope of State judicial power is broader than that of the judicial power of the Commonwealth;

(2) The jurisdiction of State courts is not dependent upon the existence of a 'matter';

(3) The doctrine of the separation of powers does not directly apply to the States;

(4) State courts may exercise non-judicial power;

(5) State Parliaments cannot confer powers or functions upon a State Supreme Court which are incompatible with, or repugnant to, the performance by that Court of its obligations to exercise federal jurisdiction.

Limits drawn from the defining characteristics of a court of a State

196 The criteria of incompatibility or repugnancy, as identifying the limits of the legislative power of a State Parliament to confer powers or functions upon a State Supreme Court, have developed over time to protect the institutional integrity or 'defining characteristics' of a Supreme Court, understood in a constitutional sense. The plurality in Forge v Australian Securities and Investments Commission[247] explained the development of the Kable principle in this way:

Because Ch III requires that there be a body fitting the description 'the Supreme Court of a State', it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on State legislative power was identified in Kable. The legislation under consideration in Kable was found to be repugnant to, or incompatible with, 'that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system'. ... [A]s is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a 'court', or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to 'institutional integrity' alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.[248]

197 In Kirk v Industrial Court (NSW)[249] the High Court held that it was necessary to construe legislation,[250] which purported to oust the jurisdiction of the Supreme Court of New South Wales for judicial review of decisions of the New South Wales Industrial Court, as precluding the granting of orders for certiorari for errors of law on the face of the record but not so as to preclude judicial review for jurisdictional error. In applying Forge the Court held that to construe the privative clause more broadly would have distorted the character of the Supreme Court such that it would fail to meet the constitutional description of a State Supreme court. This was beyond the legislative power of the State Parliament:

Chapter III of the Constitution requires that there be a body fitting the description 'the Supreme Court of a State'. It is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.[251]

198 In Momcilovic v The Queen,[252] Gummow and Hayne JJ held that the conferral of legislative or law-making functions upon a court of a State that are repugnant to the exercise of the judicial power of the Commonwealth would lead to constitutional invalidity on the basis of the Kable principle.[253]

199 There is debate about the extent to which 'the results of the application of the Kable principle are beginning to converge with the results that might be reached by applying a separation of powers approach',[254] and whether there has been a degree of conceptual convergence between State and federal constitutional doctrine 'whereby two different but parallel principles (separation of powers in respect of federal courts and Kable in respect of State courts) inform each other's application and thereby, potentially at least, start to resemble each other'.[255]

200 In any event, the approach adopted by the High Court in Assistant Commissioner Condon v Pompano[256] appears to represent a departure from the potential emergence of a conceptual convergence. In Pompano the High Court clearly differentiated between the restraints on federal courts arising from the separation of powers doctrine and the restraints on State courts by reason of the Kable principle.[257] The Court upheld the validity of the power conferred on the Supreme Court of Queensland by s 10 of the Criminal Organisation Act 2009 (Qld) ('the CO Act'), on an application by the Commissioner of the Police Service, to declare a particular organisation a 'criminal organisation'. It held that the procedures prescribed under the CO Act to receive and act upon material which was not to be disclosed to the respondent to the application, or to any representative of the respondent, did not impair the institutional integrity of the Court. The material not to be disclosed was material the Court declared to be 'criminal intelligence' if it was satisfied that the disclosure of the information could reasonably be expected to prejudice a criminal investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person's life or safety. By contrast, the Commissioner was obliged to tell the respondent, in detail, the information upon which it sought to rely to satisfy the Supreme Court of the criteria for making a declaration, namely, that the respondent is an organisation; that members of it associate for the purpose of engaging in, or conspiring to engage in, serious criminal activity; and that the organisation is an unacceptable risk to the safety, welfare or order of the community.

201 The argument for invalidity in Pompano principally rested on the claim that it was mandatory that there be an adversarial procedure with all parties fully informed:

[I]n deciding any dispute a State Supreme Court must always follow an adversarial procedure by which parties (personally or by their representatives) know of all of the material on which the Court is being asked to make a decision. Otherwise, so it was asserted, there would be such a departure from procedural fairness that the institutional integrity of the Supreme Court would be impaired.[258]

202 In rejecting this argument, the plurality emphasised that it was necessary to apply the tests of repugnancy to, or incompatibility with, the exercise of federal jurisdiction, echoing the language in Kable. Applying what was said by Gummow J in Fardon v Attorney-General (Qld),[259] the plurality drew a firm distinction between these notions and the doctrine of separation of powers. Relevantly, Hayne, Crennan, Kiefel and Bell JJ said:

Once the notion is rejected, as it must be, that the _Constitution '_permits of different grades or qualities of justice', and it is accepted that the State courts have the constitutional position that has been described [in Fardon], it follows that 'the Parliaments of the States [may] not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth' (emphasis added). As Gummow J further pointed out [in Fardon], and as is now the accepted doctrine of the Court, 'the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system'.

Three further points must be made about this 'essential notion'. First, 'the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes'. Secondly, the repugnancy doctrine 'does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III'. Thirdly, content must be given to the notion of institutional integrity of the State courts, and that too is a notion not readily susceptible of definition in terms which will dictate future outcomes.[260]

203 In a significant passage, the plurality expressly eschewed any attempt to treat the notions of incompatibility and repugnancy as equivalent to the doctrine of the separation of powers. It also acknowledged that it is an accepted aspect of the place of State courts in the Australian legal system that State courts may perform functions, or exercise powers, that go beyond what is permissible as an exercise of the judicial power of the Commonwealth:

Independence and impartiality are defining characteristics of all of the courts of the Australian judicial system. They are notions that connote separation from the other branches of government, at least in the sense that the State courts must be and remain free from external influence. In particular, the courts cannot be required to act at the dictation of the Executive. In this respect, clear parallels can be drawn with some aspects of the doctrines that have developed in relation to federal courts. But because the separation of judicial power mandated by Ch III does not apply in terms to the States, and is not implied in the constitutions of the States, there can be no direct application to the State courts of all aspects of the doctrines that have been developed in relation to Ch III. More particularly, the notions of repugnancy to and incompatibility with the continued institutional integrity of the State courts are not to be treated as if they simply reflect what Ch III requires in relation to the exercise of the judicial power of the Commonwealth.

... [I]n applying the notions of repugnancy and incompatibility it may well be necessary to accommodate the accepted and constitutionally uncontroversial performance by the State courts of functions which go beyond those that can constitute an exercise of the judicial power of the Commonwealth.[261]

204 With respect to attempts to apply statements made in previous cases in which legislation has been held to be invalid, on the basis of the Kable principle, the plurality observed that:

Care must be exercised lest taking what has been said in explanation of the decisions in other cases about other legislation to its apparently logical end sever the applicable principle from its constitutional roots.[262]

205 It is apparent from these authorities that the term 'matter' has a distinctive and established constitutional meaning (as does the expression 'advisory opinion') which derives from Ch III of the Constitution to express limitations on the judicial power of the Commonwealth which do not apply directly, or analogously, to State courts. In my view the use of the term 'matter' is best avoided in the context of considering the jurisdiction of State courts. This is not a question of semantics; the use of the term 'matter' carries a risk that it brings with it a restriction on State courts, and on State judicial power, that overlooks the historical origins of State judicial power and encourages a convergence with federal jurisdiction that is unwarranted.

206 It is instructive to consider what has been said by the High Court about the constitutional constraints on State courts in the context of sentencing. In Wong[263] the High Court held that the New South Wales Court of Appeal had no jurisdiction to issue prescriptive quantitative guideline sentences to govern what sentences could be imposed in future matters. The relevant offence was being knowingly concerned in the importation into Australia of a quantity of heroin, not less than the relevant commercial quantity, contrary to s 233B of the Customs Act 1901 (Cth). The Court was thus exercising federal jurisdiction. The two prisoners had been convicted and each sentenced to 12 years' imprisonment with a non-parole period of seven years. The Court of Criminal Appeal allowed the appeals brought by the Director, on the ground of manifest inadequacy, and re-sentenced the prisoners to 14 years' imprisonment with a non-parole period of nine years. In addition to re-exercising the sentencing discretion, a majority of the Court of Criminal Appeal stated 'guidelines' for 'the purpose of giving guidance to primary judges charged with the exercise of judicial discretion'[264] in sentencing those convicted of knowingly importing heroin into Australia.[265] The guidelines were formulated with specificity and gave considerable importance to the quantity of narcotic involved. They were quantitative guidelines amounting to a prescriptive sentencing grid. They were broken down into sub-categories not reflected in the Customs Act.

207 In reversing the decision of the Court of Criminal Appeal the High Court held that the significance attributed to the weight of the narcotic was in conflict with the need for a court to consider all of the many and various elements relevant to the sentencing of an offender, including potentially opposing elements, in the context of an instinctive synthesis.[266]

208 Relevantly, the plurality emphasised that the Court of Criminal Appeal had been exercising federal jurisdiction which thus raised the question whether the Court had strayed into a legislative function. It said:

Because the Court of Criminal Appeal was exercising federal jurisdiction questions may ... arise about the difference between legislative and judicial functions.[267]

209 The plurality observed that the status of a quantitative guideline judgment as establishing a rule of binding effect, departure from which founds an argument that the sentencing discretion miscarried,

begins to show signs of passing from being a decision settling a question which is raised by the matter, to a decision creating a new charter by reference to which further questions are to be decided. It at least begins to pass from the judicial to the legislative.[268]

210 The plurality remarked that the State laws which founded the Court of Criminal Appeal's jurisdiction, picked up and applied in the exercise of federal jurisdiction, did not extend to the conferral of jurisdiction or power to 'prescribe what sentences should be passed in future matters'.[269] They did not extend to the promulgation of prescriptive quantitative sentencing guidelines:

The relevant State provisions engaged by s 68 of the Judiciary Act [to be picked up and applied in federal jurisdiction by a State court] are ... ss 5D and 12 of the Criminal Appeal Act. Nothing in either of those sections gives the Court of Criminal Appeal any jurisdiction or power other than jurisdiction in the matter or matters before the Court and powers relating to the decision of that matter or those matters. Accordingly, the Court had neither jurisdiction nor power to prescribe what sentences should be passed in future matters. ...

It was accepted in the proceedings in this Court that the 'matter' in respect of which the Court of Criminal Appeal was exercising jurisdiction was the appeal by the Director of Public Prosecutions against the sentences imposed by the trial judge. That was the controversy which the Court of Criminal Appeal was given jurisdiction to quell by making an order determining the Director's appeal.[270]

211 Although a State law had empowered the Court of Criminal Appeal to make guideline judgments, that law had not been relied upon.[271] The plurality expressed doubt (but did not decide) whether that State law could have been validly relied upon in relation to federal offences because of its disconformity with Ch III which would have precluded it from being 'picked up' and applied by s 68 of the Judiciary Act in federal jurisdiction.[272]

212 The High Court held that the Court of Criminal Appeal was confined in its jurisdiction to the quelling of the controversy before the Court, the 'matter' involving the charge that the accused had committed offences against a law of the Commonwealth.[273] But the Court acknowledged that it may well be appropriate for a court to identify specifically the particular sentencing principles most germane to a particular category of offence, particularly in the context of a proceeding that bears 'no federal element'.[274] This is especially so where the Court is exercising an express power conferred under State law. Such non-quantitative guideline judgments, authorised by State law, may permissibly serve to guide the sentences to be imposed in future cases. As the plurality said:

Rather than 'promulgating a quantitative guideline' that may be underpinned by those assumptions and principles, it may very well be necessary and appropriate for a court, in the course of resolving the issues presented by the matter before it, to make explicit the sentencing principles that were engaged in the particular matter. Thus, there will be cases where, for example, it may be appropriate to conclude that sentencers should give chief weight to general deterrence in sentencing for a particular kind of offence. Such statements are obviously important in ensuring a principled approach to sentencing in future cases. In this respect, reference might be made to the approach adopted in Re Attorney-General's Application [No 1], an application under the 1986 Act[[275]] for a 'sentencing guideline judgment' in respect of the burglary offences created by s 112 of the Crimes Act 1900 (NSW). There was, therefore, a specific basis in State law for the application and no federal element. Grove J (with whom Spigelman CJ and Sully J agreed) said it was inappropriate, in that case, to give a guideline judgment which prescribed a specific range of sentences. His Honour did so principally for the reason that 'the great diversity of circumstances in which the offence is committed' made 'a guideline expressed in quantitative terms' inappropriate. Grove J, however, went on to set out a

number of factors that could be taken into account in assessing the seriousness of an offence.[276]

213 The South Australian example of Police (SA) v Cadd[277] was endorsed:

The 'promulgation of a quantitative guideline' may also usefully be contrasted with what was said by the majority of the Full Court of the Supreme Court of South Australia in Police v Cadd as 'authoritative guidance to magistrates on the approach to be taken to sentencing persons, convicted of driving a motor vehicle while disqualified from holding or obtaining a driving licence'. The guidance that was given was, as Doyle CJ recorded in the Addendum to his judgment:

that the punishment should be imprisonment 'in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment ...'

What is important to notice is the form that the 'guidance' took and how the Court arrived at it.

The guidance given was expressed as being about the type of punishment that should ordinarily be exacted: actual imprisonment rather than a suspended sentence. No suggestion was made about how long a sentence should be imposed. The real content of the guidance lay in the reasons which were given for the stated conclusion. It was there that meaning was given to 'ordinary' in the expression 'ordinary case of contumacious offending' and it was in the reasons that guidance was given about the criteria that should be applied in exercising the discretion in sentencing an offender for the offence in question.

...

Doyle CJ concluded that deterrence must predominate in sentencing for the offence.[278]

214 Thus, Wong recognised that the identification by an appellate court of the particular principles applicable in the sentencing of future cases with respect to a particular type of offending was permissible, especially where no federal element was present. This stood in contrast to the prescription of expected or intended results.[279]

215 To the examples countenanced by the High Court in Wong might now be added the guideline judgment of this Court in Boulton,[280] which, pursuant to the exercise by this Court of its power under s 6AB(1) of the Sentencing Act 1991, makes explicit the principles that are engaged with respect to the use of a community correction order ('CCO') combined with imprisonment as a sentencing disposition with respect to State offences[281] and provides an analysis of how it is that a CCO can be used both to punish and rehabilitate simultaneously[282] without engaging in a rigidly prescriptive quantitative exercise.

216 In R v Whyte,[283] Spigelman CJ[284] closely examined the reasoning in Wong, noting that 'Wong was the only guideline which the Court [the New South Wales Court of Criminal Appeal] ever gave with respect to a Commonwealth offence'.[285] He considered that he was not bound by the reasoning of the plurality in Wong to the effect that the Court 'had no jurisdiction in respect of sentences passed or to be passed on others'.[286] He noted that, in any event, the legislature intervened by passing legislation in 2001[287] to give the Court of Criminal Appeal the jurisdiction which the High Court concluded it did not have under the existing legislation relied upon in Wong. The Court of Criminal Appeal dismissed a challenge to the constitutional validity of the 2001 legislation. The challenge had been based on the claim that 'the promulgation of a prescriptive guideline is an act legislative in character and inconsistent with the exercise by a Court vested with the exercise of Federal judicial power'.[288] This submission was emphatically rejected. Its rejection drew on the difference between State and federal courts and the constitutional constraints which apply to them.

217 Spigelman CJ referred to the judgments in Kable and observed that 'the common theme is a test of incompatibility'.[289] He observed that characterising a function as quasi-legislative does not necessarily entail that it will meet the test of incompatibility:

In order to render a State Supreme Court an unfit repository of federal jurisdiction it is not enough to label a function as 'legislative' or 'quasi-legislative'. It is necessary to look at the jurisdiction conferred by the statute and analyse the extent, nature and quality of the alleged incompatibility.

There is no doubt that some aspects of the jurisdiction conferred on this Court by the 2001 Act could not be conferred on a Ch III court. In particular that is so of the power in s 37A(1) of the 1999 Act which authorises the Court to give a guideline judgment 'on its own motion' and to do so in any proceedings in which the Court believes it is appropriate to do so 'whether or not it is necessary for the purpose of determining the proceeding'. This power extends to the giving of a guideline which a sentencing court must 'take into account'. The identification of matters to be taken into account is not exclusively a legislative function.

...

Even if it is appropriate to attach the label 'legislative' or 'quasi-legislative' to a power of this character, it is not, in my opinion, a power the exercise of which detracts in any way from the reputation of the Court or from the actual or perceived independence and impartiality of the Court. The Court alone makes the relevant decision. The submission that the legislation is invalid should be rejected.[290]

218 Ultimately, with respect to constitutional constraints on sentencing, one can conclude that the constitutional validity of a State law conferring jurisdiction or powers on a court does not depend on the law requiring the existence of a 'matter' before the Court but principally depends on whether the test of repugnancy or incompatibility is met, in accordance with an application of the Kable principle. Moreover, by contrast with powers conferred on a federal court, the validity of a power conferred on a State court is not to be determined solely by the character of the power. In my view, this is consistent with the observations made by Gummow and Hayne JJ in Momcilovic referred to above;[291] much will depend on the specifics of the power conferred. As noted above,[292] the Court in Pompano stated that 'the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes'.[293]

Commenting on adequacy of current sentencing practice

219 What then of the actions of this Court in commenting on the adequacy or otherwise of current sentencing practice?

220 In Harrison,[294] a prisoner's appeal brought on the ground of manifest excess, this Court determined that the CSP for the offence of negligently causing serious injury, where the offence was committed by driving, was inadequate. The Court held that the increase in the maximum penalty for which the legislature provided, from five years to 10 years, had received an inadequate response with respect to the sentences imposed for offences in the upper range of seriousness.[295] CSP failed to reflect the objective seriousness of the offending, being 'not commensurate with the objective gravity of the offences, as informed by the degree of negligence involved and the consequences for victims'.[296] The Court observed that there had been an inappropriately narrow range of sentences imposed for offending in the upper range of seriousness and that, in particular, judges should not, in the future, treat four years as an artificial ceiling for the offence in those circumstances.[297]

221 In arriving at the conclusion that sentencing judges 'should no longer remain fettered by the previous pattern of sentencing'[298] the Court relied on the recognition by Nettle JA (with whom Ashley and Redlich JJA agreed) in Director of Public Prosecutions v OJA[299] that CSP is not to be regarded as fixed and immutable. Nettle JA said:

[I]mportantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences.[300]

222 The Court in Harrison also relied upon an important passage in the judgment of Redlich JA in Ashdown, referred to above,[301] where he set out, non-exhaustively and in the alternative, multiple criteria which enliven the power of an intermediate appellate court, on established principles and in accordance with existing authority,[302] to propose that CSP should be uplifted.[303]

223 Those criteria include the circumstance relied upon in Harrison, and earlier in Muldrock v The Queen[304] and in R v AB [No 2],[305] namely, where there has been an increase in the statutory maximum penalty and the CSP has failed to reflect that increase. The criteria also include those circumstances where there is evidence that an offence has become more prevalent (Giles v Barnes,[306] R v Downie,[307] R v Henry,[308] and WCB v The Queen[309]) or where community expectations have altered (R v MJR[310] and Markarian v The Queen[311]). Other criteria include where there has been increased community disquiet over the offence (R v Vaitos[312] and R v Wakime[313]) or where there has emerged a better understanding of the consequences for the victim of the offending conduct (R v D[314] and Bernes v The Queen[315]). In addition to these five criteria, further criteria include where there has been a persistent error in the manner in which a category of offenders has been treated (for example, the failure to appreciate that good character does not have the same mitigating effect in the case of white collar crimes or culpable driving), or where the objective seriousness of particular conduct has been wrongly categorised or a particular type of sentencing disposition is not ordinarily appropriate, as arose in Police (SA) v Cadd,[316] mentioned above as endorsed by the High Court,[317] and in Winch.[318]

224 In Ashdown Redlich JA characterised the error of a sentencing judge, in failing to recognise the inadequacy of a CSP in the first five sets of circumstances identified, by reference to a category of analysis adopted in House v The King[319] for the miscarriage of a discretionary power, namely, that of ignoring relevant considerations. In other words, the satisfaction of any one of those five criteria would amount to the 'identification on appeal of a material consideration that has not been taken into account in the exercise of the sentencing discretion'.[320] The seventh circumstance was expressly approved in Wong.[321] The jurisdiction of the Court to comment on the inadequacy of CSP is thus subsumed in the main under the jurisdiction of the Court to review for sentencing error on established principles. In addition, there may be occasions where 'the expression of an opinion about the adequacy of CSP has been offered in circumstances which did not meet the requirements of House v The King'[322] but where the comment is 'part of the court's overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence'.[323] In providing guidance, this jurisdiction is not dependent on an exercise of the statutory power to issue guideline judgments relied on in Boulton.

225 In Ashdown Maxwell P emphasised that the Court has a responsibility to 'ensure that, in the exercise of the sentencing discretion, sentencing judges are "maintaining adequate standards of punishment" within those parameters'[324] set by the legislature.

226 Ashley JA in Ashdown relevantly agreed with the multiple criteria identified by Redlich JA.[325] However, Ashley JA went on to say that he could not agree with Redlich JA that 'this court is empowered to pass upon that subject [the adequacy or otherwise of CSP for a particular offence] where the issue is not alive between the parties ... the issue must be one calling for resolution in the course of the court disposing of the rights of the parties to the appeal'.[326]

227 As Whelan JA has noted,[327] the judgment in Werry reflects, at least to some extent, the concerns expressed by Ashley JA in Ashdown. The Court in Werry may have interpreted Ashley JA's remarks in Ashdown as supporting the view that the jurisdiction of this Court to consider the adequacy of CSP was dependent upon the requirement that there be a 'matter', in the constitutional sense. For the reasons I have given, I consider that requirement to be wrong.

228 I agree with Whelan JA[328] that what may have been intended by Ashley JA in Ashdown is that the issue of the adequacy of CSP must, in a general sense, be a live issue between the parties on the appeal and one that the Court is required to address in that context. It is not necessary that an answer to that question in itself be determinative of the disposition of the appeal. In my view, in the context of Director's appeals, the inadequacy of CSP is perhaps best seen in the context of reinforcing an otherwise viable allegation that the particular sentence imposed was manifestly inadequate.[329] It is for this reason that one would expect to see an allegation with respect to the inadequacy of CSP as one of many particulars of the ground of manifest inadequacy and not, as in Werry, a stand-alone separate ground.[330]

229 I consider that it is open to interpret the reasoning of the Court in Werry, not as reflecting the constitutional strictures of the meaning of 'matter' but rather as endorsing the proposition that, on a Director's appeal, the question of the adequacy of CSP is properly raised where it is a live issue on the appeal in the sense that it reinforces, as a supporting particular, a ground of manifest inadequacy of the particular sentence imposed. On this alternative reading of Werry, the question of

the adequacy of CSP is properly raised within the confines of the proceeding being an 'appeal against sentence' within the meaning of s 287 of the Criminal Procedure Act for this Court to determine pursuant to s 289 of that Act.

230 I have read in draft the reasons of Redlich JA. I agree for the reasons given by Redlich JA that the appeal should be dismissed. I also agree that there is a need to correct current sentencing practice for the offence of cultivation of a commercial quantity of a narcotic plant, and that this is an appropriate occasion to provide a warning that, in the future, sentencing courts should, by increments, increase the sentences to be imposed for such offending in the middle category of seriousness. This will inevitably also affect the sentences in the high category of seriousness. I wish to give my own reason for reaching these conclusions concerning current sentencing practice.

The problem with current sentencing practice as revealed in this appeal

231 Over six years ago this Court made observations to the effect that current sentencing practice for this offence was difficult to reconcile with the statutory maximum penalty and with the quantity based regime for drug offences, the significance of which had been explained by this Court in Pidoto.[331] Those observations were made by the President, with whom Buchanan JA agreed, in Nguyen v The Queen ('Nguyen 2010').[332] Somewhat similar observations were made by Redlich JA and I more recently in Bui.[333]

232 In Pidoto, this Court held that, given the quantity based scheme of the legislation, there was no place in sentencing for a consideration of the relative harmfulness of particular drugs. This conclusion ought to have had particular

significance for cannabis offences because sentencing judges prior to Pidoto had proceeded at times on the erroneous assumption or preconception that for the purposes of sentencing cannabis could be treated as inherently less harmful than other drugs and that cannabis offences were less serious as a consequence. In Pidoto this approach was held to be erroneous.[334]

233 When the President granted this appellant leave to appeal, he did so on the basis that manifest excess was arguable only because the appellant was able to point to sentences which were similar or lower than that imposed on him involving much greater quantities of narcotic plants. The President referred to Latif,[335] McGrath,[336] and Barton.[337]

234 In due course, on the appeal, the appellant particularly relied upon McGrath.

235 In addition to Latif, McGrath and Barton, in the course of the appeal particular reference was made to three other judgments of this Court concerning sentences for this offence, being Nguyen 2010, Bui and another case named Nguyen v The Queen[338] ('Nguyen 2013'). Redlich JA has set out the facts of those cases and I will not repeat that description.

236 A consideration of those six Court of Appeal judgments reveals that the sentences for the specific offence on an offender who did not obtain a discount for a guilty plea (Nguyen 2013) and an offender with a prior conviction for very similar offending (Bui) were five years' imprisonment (Nguyen 2013) and four years six months (Bui). The other sentences are all within a band of between two years and three years six months' imprisonment. The offenders in Nguyen 2010 and McGrath were principals.[339] They received sentences of three years and two years six months' imprisonment respectively. The offender in Barton was a person acting alone and partly for his own use, and one offender in Latif (Azmi) was a person I would describe as a 'functionary'. They received sentences of two years (Barton) and two years four months' (Azmi in Latif) imprisonment respectively. The difference in sentence between them and the two principals is narrow. A consideration of the comparable mitigating factors in the six cases does not seem to explain the close correlation in the sentences.

237 The appellant also relied upon the report of the Sentencing Advisory Council published in March 2015 entitled 'Major Drug Offences: Current Sentencing Practices' ('the Drug Offences Report').[340]

238 The Drug Offences Report identifies two relevant 'clusters' of cases of commercial cultivation over the period 2008-9 to 2012-13. In the first cluster of 201 cases ('Cluster 1') most of the offenders 'had a house-sitter role or an ancillary role'. For want of a better word, I refer to offenders of that type as 'functionaries'. They were typically involved for a short period of time, were more likely to be youthful offenders, and were less likely to have prior convictions. The median term of imprisonment for Cluster 1 cases was two years. In the second cluster of 202 cases ('Cluster 2') the great majority of offenders had played what the report refers to as a 'principal/proprietor role'. Typically, the period of offending was longer, the offenders were likely to be older, and the offenders were likely to have a criminal history. The median term of imprisonment for Cluster 2 cases was three years.

239 The respective medians for each of the two clusters in the Drug Offences Report seem low given the maximum penalty for the offence of 25 years. The difference between the cluster of cases where the great majority of principals are to be found and the cluster where the great majority of functionaries are to be found is narrow.

240 The six Court of Appeal cases and the Drug Offences Report raise an obvious concern both as to the level of sentences being imposed on principals and the differentiation between principals and functionaries.

241 The respondent Director in a separate written submission filed in the appeal on the issue of current sentencing practice addressed a number of sentences imposed in the County Court[341] to make good the proposition that 'crop sitters' have received sentences above the sentence imposed on the principal in McGrath, and equal to the median of the Cluster 2 sentences in the Drug Offences Report.[342] The Director's submission also identified the highest sentences imposed for the offence in each year from 2012 to 2015. The highest sentence in 2012 was the sentence which was the subject of Nguyen 2013. The individual sentence on the relevant count was five years. The highest sentence in 2013 was a County Court sentence where a sentence of five years two months' imprisonment was imposed.[343] The highest in 2014 was again a County Court sentence[344] where a sentence of five years three months' imprisonment was imposed, and the highest sentence in 2015 was a County Court sentence[345] where a sentence of five years three months' imprisonment was again imposed.

242 The Director appended to the written submission on current sentencing practice three tables. Table A set out abbreviated details of 31 sentences which had been the subject of judgments in this Court ordered by quantity. Table B set out the same sentences ordered by length of sentence. Table C set out abbreviated details of seven sentences for the offence of cultivation of a large commercial quantity of a narcotic plant. The range of sentences in Table C was from six years to eight years six months (ignoring a sentence of two years on an offender who had been a 'crop sitter' for one day). Table B revealed upper sentences of five years and the presence of a range of offenders (principals and functionaries) in the range of two years to three years' imprisonment.

243 The Director's argument, as finally articulated in oral submissions, was that the sentences for mid-range offending, of which this was an instance, had become compressed into a narrow band between two and a half and three years' imprisonment. It was submitted that sentences of 'around the five year mark' for offending in the upper range had had the effect of 'squashing down' the sentences for mid-range offending. The sentences in the upper range were themselves at that level, so it was submitted, because sentences imposed for offending involving large commercial quantities were around the eight year mark. It was submitted that a correction by this Court of current sentencing practice in relation to mid-range offending would inevitably have some effect on high range offending but that the Director was not making submissions directed towards offending other than offending of the mid-level character which had occurred in this case. It was submitted that the inappropriate 'compression' of sentences for mid-ranging offending had led to the fact that such sentences overlap with sentences for offenders in a lower category, those whom senior counsel for the Director described as 'crop sitters'. In that context it was submitted that there had been consistent error in the manner in which mid-range offences had been treated and that the objective seriousness of mid-category offending had not been correctly addressed.

244 The Law Institute of Victoria and the Criminal Bar Association in their written submission emphasised the shortcomings of statistical analyses of sentences, citing in that regard Wong[346] and Pham.[347] The focus of their oral submission was on that issue and the issue of whether this was an appropriate occasion for the Court to express a view as to the adequacy of current sentencing practice.

245 As the Law Institute of Victoria and the Criminal Bar Association submitted, analysis of sentences on a statistical basis or by reference to tables with abbreviated details has significant limitations. But in this appeal the tables and the statistics merely confirmed and fortified the conclusion emerging from a consideration of the particular cases to which I have referred. That is that the range of sentences being imposed for offences of mid-category seriousness is both too low and too narrow. Current sentencing practice does not reflect the objective seriousness of mid-category offending and reveals persistent error in the sentencing of mid-category offenders. The absence of clear differentiation between principals and functionaries is one consequence of these shortcomings.

Is this appeal an appropriate occasion to provide a warning that sentences should be increased in the future?

246 In Ashdown this Court addressed in some detail the circumstances in which it was appropriate for an appellate court to express a view about the adequacy of current sentencing practices.[348] Whilst the three judges who constituted that Court were all agreed that in that particular case it was not appropriate to express such a view, their reasons were different.

247 Maxwell P considered that a function of the Court of Appeal is to ensure that, in the exercise of sentencing discretion, sentencing judges maintain adequate standards of punishment within the parameters fixed by maximum penalties, as determined by Parliament.[349] If it is apparent that current sentencing practices do not adequately reflect the guidance provided by the maximum then it is both appropriate and necessary for the court to say so, for the guidance of sentencing courts.[350]

248 Redlich JA disagreed with the President in relation to the significance of the maximum penalty in this context, concluding that a gap between current sentencing practice and the maximum penalty had never by itself been identified as a basis in law upon which to express an opinion as to the adequacy of current sentencing practice.[351] The gap between current sentencing practice and the maximum penalty was, in Redlich JA's view, a relevant consideration, but some other factor must be present which brings the case within the principles that govern appellate intervention.[352] As to those principles Redlich JA emphasised the Court of Appeal's overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of offence.[353] He set out the following list, which was not exhaustive, of circumstances in which appellate courts, had, and should continue to, express a view as to the adequacy of current sentencing practice:[354]

(1) Where there has been an increase in the statutory maximum penalty and [current sentencing practice] has failed to reflect that increase.

(2) Where there is evidence that an offence has become more prevalent.

(3) Where community expectations have altered.

(4) Where there has been increased community disquiet over the offence.

(5) Where there has emerged a better understanding of the consequences for the victim of the offending conduct.

(6) Where there has been a persistent error in the manner in which a category of offenders has been treated.

(7) Where the objective seriousness of particular conduct has been wrongly categorised or a particular type of sentencing disposition is not ordinarily appropriate.

Redlich JA expressed the view that the court's ability to provide guidance on the adequacy of current sentencing practice is not confined to those occasions where it would be determinative of the appeal,[355] and that the Crown is not precluded from raising for the first time on either an offender's appeal or a Crown appeal the issue of whether current sentencing practice is adequate.[356]

249 Ashley JA expanded on the concerns expressed by Redlich JA as to reliance on maximum penalties in this context.[357] As to the circumstances in which the court might properly express a view as to the adequacy of current sentencing practice, Ashley JA agreed with Redlich JA's non-exhaustive list.[358] Ashley JA, however, expressed strong views in relation to the circumstances in which it would be proper to entertain a review on appeal of current sentencing practice directed towards a statement of general import that that practice was inadequate. Ashley JA was concerned to emphasise that the court should not address issues for a purpose other than 'disposing of the controversy before the court'.[359] The question must be a 'live issue between the parties'.[360] Whilst Ashley JA recognised that an appellate court for the purpose of deciding a controversy before it could state a principle of more general application,[361] the court had no jurisdiction, in Ashley JA's view, to enter into an examination of current sentencing practice in circumstances where the issues on the appeal had in fact already been decided, an error which Ashley JA considered had been made by this Court in Winch.[362] Ashley JA expressed the view that the Crown should not be permitted to address current sentencing practice in this way if the issue was being raised for the first time on appeal.[363]

250 What Ashley JA said in Ashdown could be interpreted as suggesting that the court should not address current sentencing practice in this context unless it is determinative of the appeal. I do not interpret what he said in that way. He was concerned to emphasise that the matter must be a live issue between the parties on the appeal and must be an issue that the court is required to address in that context. Given this Court's strong reluctance to impose a sentence on an offender by reference to a different standard to that which applied when he pleaded guilty, a requirement that current sentencing practice cannot be addressed in this way unless it is determinative of the appeal would, as a practical matter, mean that the issue could rarely, if ever, be addressed at all. It seems to me clear from Ashley JA's reasons that he was not suggesting that that was the position.[364]

251 Before turning to the relevant decisions of this Court since Ashdown, reference should be made to two prior decisions, being R v AB (No 2)[365] ('AB (No 2)') and Winch.

252 In AB (No 2) this Court held that a trial judge who had imposed a sentence for manslaughter greater than that indicated by current sentencing practice had been entitled, and indeed bound, to do so because current sentencing practice had not responded to an increase in the maximum penalty for the offence. Whilst the width of the relevant guidance to be obtained from AB (No 2) is controversial,[366] otherwise that decision is uncontroversial.

253 In Winch observations of general import in relation to a particular category of the offence of recklessly causing serious injury were made by Maxwell P and Redlich JA. Ashley JA dealt with the appeal without addressing that issue.[367]

254 Turning then to relevant decisions of this Court since Ashdown, the first is Werry.[368]

255 In Werry the Director appealed a rape sentence. The Director did not press for the sentence to be increased but instead approached the appeal as a 'vehicle' in order to invite the court to address the adequacy of current sentencing practices for rape.[369] In a judgment of five judges this Court disapproved of the Director's approach in emphatic terms. This was not a case where the Director was seeking to raise current sentencing practice for the first time on appeal. The DPP had in fact adopted the kind of approach which had been foreshadowed by Ashley JA in Ashdown in submitting on the plea that current sentencing practice for rape was inadequate. On the appeal, the Director did not seek an increased sentence, notwithstanding the submission which had been made on the plea. The fact that the Director did not seek the imposition of a 'different' sentence was seen as fatal to the adoption of the approach for which he was contending. The court said:[370]

There is either a good case to be made for significantly increasing a sentence imposed at first instance upon a particular offender, or there is not. In a broader sense (and by analogy with basic constitutional principle), the jurisdiction of this court is engaged only when there is a 'matter' before it that is properly capable of giving rise to the exercise of judicial power. An appeal against sentence should not be brought essentially as an excuse to have this court determine matters of an abstract nature, important though they may be. It must be clear, before the jurisdiction of this court is invoked, that nothing in the nature of an advisory opinion is being sought, but rather a resolution of a dispute between the actual parties to the case.

Nothing set out above in any way casts doubt upon the proposition that this court is perfectly entitled, in an appropriate case, to express its views as to the adequacy of current sentences for this, or any other offence. It is the role of this court to lay down principles for the governance and guidance of courts having the duty of sentencing convicted offenders. However, that task must be approached with caution and performed with great care. We emphasise that it should be carried out only where it is appropriate to do so.

256 The Court endorsed in a footnote what had been said by Redlich JA in Ashdown where he had set out his non-exhaustive list.[371]

257 In my view the judgment of the five member bench in Werry reflects, at least to some extent, the concerns expressed by Ashley JA in Ashdown. The issue must arise in the context of a 'matter' which is before the court on the appeal in the sense that an appeal cannot be used as an 'excuse' or as a 'vehicle' to determine issues which are in fact extraneous to the dispute before the court.

258 The next relevant decision is Hogarth.[372] This was another case where the Director had given notice of an intention to contest current sentencing practice.[373] Like AB (No 2), this was a case where it was said that there had been a failure to properly respond to an increase in the maximum penalty. The offence in issue in Hogarth was a particular form of aggravated burglary. Hogarth was an offender's appeal. The Director did not contend that any elevated sentencing standard should be imposed on the appellant. In Hogarth the court, constituted by the President, Neave JA and Coghlan AJA (as he then was) said:[374]

It is now well established that it is a proper function of this court, in an appropriate case, to express an opinion about the adequacy of current sentencing practices for a particular offence and, when current sentencing practices are found to be inadequate, to indicate that they should be uplifted. In Ashdown, Redlich JA identified a number of circumstances in which intermediate courts of appeal had decided that it was both necessary and appropriate to do so. One such circumstance is where the objective seriousness of particular conduct has been wrongly categorised.

A key indicator of the objective seriousness of an offence is the maximum penalty fixed by Parliament. As Maxwell P pointed out in Ashdown, this court in a series of unanimous decisions has recognised the scope which exists for conflict between the guidance afforded to sentencing judges by the maximum penalty for an offence and the guidance afforded by current sentencing practice for that offence. A sentencing judge is, of course, obliged to take both considerations into account in determining an appropriate sentence.

259 A little later the court said:[375]

As this Court has said previously, where there is a conflict between the guidance afforded by the maximum penalty and that afforded by current sentencing practices, it is the maximum which must prevail.

Amongst the cases cited in support of that proposition was AB (No 2).

260 In CJA[376] the Court observed in passing when dealing with a Director's appeal against sentence on incest charges that there may be a serious question about whether current sentencing practices for that offence were adequate. The Court, constituted by the Chief Justice, Neave and Redlich JJA, observed that if there had been 'an increased prevalence of the offence, changed community expectations, or a more informed understanding of the impact of the offence upon victims', a review of current sentencing practice would be warranted 'subject to what was said in Werry'.[377]

261 The capacity of sentencing judges to entertain arguments as to the adequacy of current sentencing practice was dealt with by this Court in Anderson.[378] The Court, constituted by Redlich, Weinberg and Harper JJA, said:[379]

Implicit in the requirement of a principled basis for declaring current sentencing practices inadequate is the recognition that idiosyncratic views have no place in the sentencing process. After all, current sentencing practices are the reflection of the product of the sentencing discretion in numerous cases by numerous judges. As counsel for the respondent acknowledged on the hearing of the appeal, a sentencing judge must take current sentencing practices into account to the full extent that the law requires. Unless the case can be brought within a recognisable ground for departing from current sentencing practices, a sentencing judge is not at liberty to disregard such practices or qualify the degree to which they should be given effect. Current sentencing practices for a category of the offence must guide the range of sentences available for that category of the offence.

262 It seems to me that any attempt to argue the adequacy of current sentencing practice before a sentencing judge, as Ashley JA had proposed in Ashdown, would encounter significant obstacles given what was said in Anderson, except in the specific circumstances dealt with in AB (No 2).

263 The last case to which reference might be made is Harrison.[380] In that case this Court, constituted by Maxwell P, Redlich and Tate JJA, considered an offender's appeal on sentence after a conviction for negligently causing serious injury. The offence had occurred whilst driving a motor vehicle. The Court referred to this category of offence as 'NCSI by driving'. The Court was invited to express a view as to current sentencing practice in relation to this category of offence and it did so. In relation to the circumstances in which an appellate court could properly express a view about the adequacy of current sentencing practice, the Court said:[381]

In an appropriate case, an intermediate appellate court may express an opinion about the adequacy of [current sentencing practice] for a particular offence and, if it is found to be inadequate, may indicate that in the future sentences should be increased. In this way, inadequacies in sentencing can be addressed within the judicial process itself. The system is self-correcting, as it should be.

264 The Court then quoted Redlich JA's non-exhaustive list from Ashdown and continued:[382]

If the Crown is able to bring itself within one of those categories, the Court may then pass comment on the adequacy of [current sentencing practice] in order to 'ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence'. In both Winch and Hogarth, the Court concluded that [current sentencing practice] was inadequate in respect of a category of the relevant offence. As noted earlier, the Director invites the Court to take a similar course in the present case.

265 Harrison was another case where there had been increases in the maximum penalty, the last of which was an increase from 5 years' imprisonment to 10 years' imprisonment. After referring to statistical material and tables of sentences produced to the Court, the Court observed:[383]

This material demonstrates very clearly that, despite the increase in the maximum to 10 years, sentences for NCSI by driving - including for cases in the upper range of seriousness - have remained clustered at and under an upper limit of four years' imprisonment. This is a surprising state of affairs.

266 The court went on to hold that current sentencing for NCSI by driving did not reflect the increased maximum penalty for the offence.[384] Later, after referring to the 'mechanisms' by which sentencing courts may resolve tension between current sentencing practice and an increased maximum penalty, the Court said:[385]

But, as was explained in Ashdown, it will be necessary for this Court to provide guidance to sentencing courts where inadequate sentencing practice has become so established that sentencing courts are reluctant to depart from that practice. As Redlich JA concluded in Ashdown:

[T]he expression of such an opinion is part of the court's overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence.

267 Before turning to the application of these principles to this appeal, it is useful to recall the role that maximum penalties ought to play in the sentencing process.

268 In Markarian v The Queen Gleeson CJ, Gummow, Hayne and Callinan JJ observed:[386]

Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. ...

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

269 These observations were not new. In Mallinder v The Queen Vincent J had said:[387]

[I]n circumstances where a maximum penalty is fixed by statute, and accordingly the relative seriousness with which proscribed behaviour may be viewed by the courts has been determined by the legislature, the sentence which is imposed in any given case must bear some relationship to the seriousness with which the class of offences is to be viewed generally, and to the relative seriousness of the actual conduct engaged in by the offender within the context of the kinds of behaviour encompassed by that class.

270 For the purposes of this appeal, the authorities to which I have referred seem to me to give rise to the following position:

(1) Redlich JA's non-exhaustive list in Ashdown has been generally accepted. Amongst the circumstances in which an intermediate appellate court can, and should, express a view as to the adequacy of current sentencing practice are where there has been persistent error in the manner in which a category of offender has been treated and where the objective seriousness of particular conduct has been wrongly characterised.

(2) The question of the adequacy of current sentencing practice can be raised for the first time on appeal. Generally, it would not be appropriate to raise such an issue before a sentencing judge. An increase in the maximum which had not been reflected in current sentencing practice would be one circumstance where a sentencing judge could address the adequacy of current sentencing practice. But otherwise sentencing judges should take current sentencing practice as it is into account.

(3) An elevated sentencing standard would not normally be imposed upon an offender who had pleaded guilty and so, in that context, the issue does not need to be determinative of the appeal.

(4) The issue of the adequacy of current sentencing practice must be a 'live' issue between the parties. The appeal cannot be used as a 'vehicle' or as an 'excuse' to ventilate the issue.

(6) The court should be cautious and careful before entertaining an argument concerning the adequacy of current sentencing practice.

(7) A failure of current sentencing practice to reflect an increase in the maximum penalty is a proper basis for an intermediate appellate court to find that current sentencing practice is inadequate. Otherwise, disconformity between the maximum penalty and current sentencing practice, alone and without more, would not be an appropriate basis for a conclusion to be reached that current sentencing practice was inadequate. Such a disconformity may, however, be indicative of the existence of persistent error or of a failure to properly characterise the objective seriousness of particular conduct given the role that the maximum penalty ought to play as a 'yardstick' in sentencing dispositions.

271 In this case current sentencing practice was a 'live' issue between the parties. It was the reason leave to appeal was granted. It was necessary to address current sentencing practice in detail in order to decide the issue between the parties on the appeal.

272 The inquiry which it was necessary to undertake for the purpose of deciding the issues between the parties to this appeal revealed that current sentencing practice was inadequate. The sentence which was the subject of the appeal was itself a manifestation of the inadequacy of the current sentencing practice. In the circumstances it was appropriate for this Court to reach that conclusion and to express it in the terms set out in the judgment of Redlich JA.

[1] DPP v Nguyen (Unreported, County Court of Victoria, Judge Carmody, 23 September 2015) ('Reasons').

[2] Ground 2 of the proposed grounds of appeal was to the effect that fresh evidence of events that have occurred since the sentence was imposed demonstrate the true significance of events in existence at the time of sentence. The appellant has not elected to renew this ground.

[3] Sentencing Advisory Council, 'Major Drug Offences: Current Sentencing Practices' (Report, Sentencing Advisory Council, March 2015).

[4] [2010] VSCA 196; (2010) 28 VR 288 ('Guden').

[5] [2016] VSCA 48 ('Konamala').

[6] (2016) 74 MVR 489 ('Da Costa').

[7] [2016] VSCA 76 ('Schneider').

[9] Part 2 of sch 11 to the Drugs, Poisons and Controlled Substances Act 1981 stipulates that a commercial quantity of narcotic plant is 25 kilograms or 100 plants.

[12] [2010] VSCA 196; (2010) 28 VR 288.

[13] Ibid 294-5 [25]-[27] (citations omitted).

[14] Ibid 295 [27]-[28] (citations omitted).

[15] Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).

[16] [2016] VSCA 48.

[17] See above at [20].

[18] Konamala [2016] VSCA 48 [34]-[35].

[19] [2016] VSCA 49.

[22] [2016] VSCA 76.

[27] See, eg, R v Le Van Huu [1999] VSCA 40 [30] (Phillips CJ): 'Of course, a judge is not obliged to specifically advert to every matter he has considered in composing a sentence'; DPP v Gebremeskel [2005] VSCA 171 [17]; R v Piacentino [2007] VSCA 49; (2007) 15 VR 501, 511 [47]; R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 440 [64]; Dowe v The Queen [2012] VSCA 39 [32]; Jackson v The Queen [2013] VSCA 14 [10].

[28] (2009) 16 VR 296 ('Verdins').

[29] Sentencing Advisory Council, 'Sentencing Trends for Cultivation of Commercial Quantity of Narcotic Plants in the Higher Courts of Victoria 2008-09 to 2012-13' (Sentencing Snapshot No 165, Sentencing Advisory Council, August 2014).

[30] [2014] VSCA 342; (2014) 46 VR 308 ('Boulton').

[31] Sentencing Advisory Council, above n 29, 5.

[32] Nguyen v The Queen (2010) 208 A Crim R 464; DPP v Duong [2006] VSCA 78; Doan v The Queen [2010] VSCA 250.

[36] Latif v The Queen [2013] VSCA 51 ('Latif').

[37] [2015] VSCA 176 ('McGrath').

[38] [2013] VSCA 360 ('Barton').

[39] Sentencing Advisory Council, above n 3.

[42] [1999] HCA 46; (1999) 198 CLR 111, 160 [130].

[43] (2013) 40 VR 134, 135 [1].

[44] [2013] VSCA 190 [24].

[45] [2013] VSCA 138 [22].

[46] [2011] VSCA 408; (2011) 37 VR 341 ('Ashdown').

[49] Although these facts were not available to the sentencing judge, the Court was informed by the appellant's solicitor after the hearing had concluded that on 27 October 2015 at the County Court an Unexplained Wealth Restraining Order in relation, inter alia, to the Ardeer house had been granted and the appellant's mother has made an application for exclusion of her interest in this property. The proceedings are ongoing.

[50] Vozlic v The Queen [2013] VSCA 113 [22] ('Vozlic').

[51] R v Storey [1998] 1 VR 359, 367 ('Storey').

[52] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281 [25] ('Olbrich').

[53] Storey [1998] 1 VR 359, 367.

[54] Vozlic [2013] VSCA 113 [22]

[55] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281 [25].

[56] R v Piercey [1971] VicRp 79; [1971] VR 647, 649; R v Disney (1985) 38 SASR 418, 424; R v Spathis [2001] NSWCCA 476; R v Ngo (No 3) [2001] NSWSC 1021; (2001) 125 A Crim R 495.

[57] [2011] HCA 49; (2011) 244 CLR 462.

[59] [2001] HCA 64; (2001) 207 CLR 584 ('Wong').

[60] Ibid 608 [65] (emphasis in original).

[62] [2010] HCA 45; (2010) 242 CLR 520 ('Hili).

[64] [2013] HCA 31; (2013) 248 CLR 483.

[65] [2015] HCA 39; (2015) 325 ALR 400 ('Pham').

[68] Ashdown [2011] VSCA 408; (2011) 37 VR 341, 400 [174], citing Hudson v The Queen (2010) 30 VR 610, 617 [28]-[29].

[69] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 519-20 (Mason and Deane JJ).

[70] [2011] VSCA 408; (2011) 37 VR 341.

[74] [2014] HCA 2; (2014) 253 CLR 58 ('Barbaro').

[75] [2010] NSWCCA 194, 388-9 [303]-[305].

[76] Hili [2010] HCA 45; (2010) 242 CLR 520, 537 [54].

[77] Ibid; Pham [2015] HCA 39; (2015) 325 ALR 400, 406-7 [29].

[78] [2014] VSCA 93.

[80] Muldrock v The Queen (2011) 281 ALCR 652, 661 [29]; MacNeill Brown v The Queen [2008] VSCA 190; Trajkavski v The Queen [2011] VSCA 170; (2011) 32 VR 587; R v Davies [2006] SASC 232; (2006) 164 A Crim R 353; R v EH [2008] QCA 67; X Y v The Queen [2007] NSWCCA 72; Mills v State of Western Australia [2007] WASCA 118.

[81] Hili [2010] HCA 45; (2010) 242 CLR 520, 537 [54]; Barbaro [2014] HCA 2; (2014) 253 CLR 58, 74 [41].

[82] See for example R v Macintosh [2005] VSCA 106 [10]; DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 195-197 [29]-[33]; DPP v Dalgleish [2016] VSCA 148 [118]; Harrison v The Queen (2015) 74 MVR 58, 87 [140].

[83] [2015] VSCA 176.

[84] [2013] VSCA 51.

[85] While the plants weighed a total of 130 kilograms, it was found not to be possible to quantify or predict the yield weights of the cannabis.

[86] [2013] VSCA 360.

[87] The yield in Barton's case was said to be only 19.5 to 22 kilograms.

[88] [2015] VSCA 313 ('Bui').

[89] (2010) 208 A Crim R 464.

[90] There was some dispute as to whether the relevant quantity was the total weight of the plants or the yield weight. The Court proceeded on the latter basis, although it said that its conclusion was unaffected by this.

[91] [2013] VSCA 63.

[92] Bui [2015] VSCA 313 [29].

[93] Sentencing Advisory Council, above n 3, 27 [4.45]. See [84] below.

[98] See, eg, Bui [2015] VSCA 313; Nguyen v The Queen [2013] VSCA 63.

[99] [2013] VSCA 63.

[101] Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 493 [25].

[102] Kumova v The Queen (2012) 37 VR 538, 541 [11] (Nettle JA), 546 [30] (Redlich and Osborn JJA).

[103] See below [119].

[104] Ashdown [2011] VSCA 408; (2011) 37 VR 341, 396 [153].

[105] [2011] VSCA 408; (2011) 37 VR 341, 409-410 [202]-[208].

[106] [2010] VSCA 141; (2010) 27 VR 658 ('Winch').

[107] (2012) 37 VR 524 ('Werry').

[108] [2016] VSCA 58 [47].

[109] [2013] VSCA 18 ('CJA').

[110] [2013] VSCA 138 ('Anderson').

[111] CJA [2013] VSCA 18 [36]; Anderson [2013] VSCA 138 [21].

[112] [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[113] (2015) 74 MVR 58 ('Harrison').

[114] (1986) 66 ALR 264 ('Poyner').

[115] Poyner v The Queen (1986) 17 A Crim R 162.

[117] [2011] VSCA 408; (2011) 37 VR 341 [180] (Redlich JA with whom Maxwell P and Ashley JA on this issue agreed).

[118] Poyner v The Queen (1986) 17 A Crim R 162, 164.

1. [119] Griffiths v The Queen (1977) 137 CLR 293, 310; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 300; Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315, 329-30 [61], [62]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 624 [109].

[120] This misconception bears upon the explanation provided by Senior counsel for the Director as to why no Crown appeals had been brought to correct CSP. It could not be shown that the sentence that had been imposed fell below CSP.

[121] [2006] VSCA 185; (2006) 14 VR 269 ('Pidoto').

[123] (1976) 14 SASR 388.

[124] (1985) 36 NTR 23.

[125] Poyner (1986) 66 ALR 264, 264.

[126] [1997] SASC 6350; (1997) 69 SASR 413.

[128] [2010] NSWCCA 278; (2010) 208 A Crim R 478.

[129] [2010] NSWCCA 7 ('McIvor').

[131] [2011] NSWCCA 49; (2011) 206 A Crim R 574.

[133] Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658, 663 [26], citing DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 549 [69].

[134] That qualification allowed for the course followed by Street CJ in the Court of Criminal Appeal where the sentencing standard was increased without warning.

[135] [2011] VSCA 408; (2011) 37 VR 341, 410 [205].

[136] [1997] SASC 6350; (1997) 69 SASR 413.

[137] Yardley v Betts (1979) 22 SASR 108, 113-114; R v Lewfatt (1993) 3 NTLR 41, 43-44 (Angel J) 45-46 (Priestley J).

[138] R v D [1997] SASC 6350; (1997) 69 SASR 413, 424.

[139] [2010] NSWCCA 278; (2010) 208 A Crim R 478.

[140] [2010] NSWCCA 7.

[141] Hampton v The Queen [2010] NSWCCA 278; (2010) 208 A Crim R 478, 491 [63].

[142] Ashdown [2011] VSCA 408; (2011) 37 VR 341, 410 [207]

[143] R v Lewfatt (1993) 3 NTLR 41; Green v The Queen [2006] NTCCA 22; (2006) 19 NTLR 1; Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186 [50]; Slattery v Davis [1993] NTSC 13; (1993) 111 FLR 250; Midson v The Queen [1998] TASSC 26; Devine v The Queen [1993] TASSC 93; Shipton v The Queen [2003] TASSC 23; DPP v Watson [2004] TASSC 54 [23]; DPP v Daing [2016] VSCA 58 [47]; DPP v Avery [2009] TASSC 27 [14].

[144] See for example R v Dandie & Downie [1998] 2 VR 517, 520-2; DPP v OJA [2007] VSCA 129 [32].

[145] Baker v The Queen [1975] AC 774, 788; CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1, 11 [13]; Markisic v Commonwealth [2007] NSWCA 92; (2007) 69 NSWLR 737, 748 [56]; Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540, 584 [183].

[146] [2005] VSCA 91; (2005) 12 VR 115.

[148] Criminal Procedure Act 2009 s 281(3).

[149] (2010) 208 A Crim R 464, 473 [37]-[40].