//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2015] HCA 39
appellant. Appeal allowed. The orders of the Court of Appeal of the Supreme Court of Victoria made on 5 September 2014 were set aside, and the matter was remitted to that Court for determination according to...
The High Court held that a State court sentencing someone for a federal offence must consider sentencing practice across Australia, not just local practice. It also held that comparisons with earlier sentences can inform a sentencing assessment but cannot replace it. In Pham's case, the Victorian Court of Appeal's analysis relied too heavily on Victorian practice and on comparisons that treated courier status and drug quantity as if they captured the relevant differences between cases. The High Court did not decide what sentence Pham should receive. It set aside the Court of Appeal's orders and sent the matter back for reconsideration.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,207 words · generated 04/10/2026
The High Court of Australia considered a Commonwealth appeal about the approach to sentencing a person convicted of a federal drug-importation offence. Pham pleaded guilty to importing a marketable quantity of heroin contrary to s 307.2(1) of the Criminal Code (Cth). The pure heroin weighed 577.1 grams. The judgment records that a marketable quantity of heroin was between two grams and 1.5 kilograms ([1], [10]).
2 cited instruments linked from this judgment.
The County Court of Victoria sentenced Pham to eight years and six months' imprisonment, with a non-parole period of six years ([1]). The Victorian Court of Appeal set that sentence aside and substituted six years' imprisonment, with a four-year non-parole period ([2]). Its reasons included a table of 32 decisions from Australian intermediate appellate courts and a graph comparing sentence length with drug quantity expressed as a percentage of the relevant commercial quantity ([12]-[13]).
The Court of Appeal's President, Maxwell P, concluded that sentences in New South Wales, Queensland and Western Australia were substantially higher than those imposed in Victoria for offences involving similar quantities. He considered Pham entitled to expect sentencing in accordance with Victorian practice ([14]). Osborn JA warned that a quantity-only comparison might obscure differences in role, profit, purpose and personal circumstances, but nonetheless considered the analysis relevant ([15]). Kyrou JA was also influenced by the asserted disparity between Victorian and other jurisdictions' sentencing practice ([16]).
The Commonwealth Director of Public Prosecutions appealed on two grounds: first, that the Court of Appeal wrongly focused on Victorian sentencing practice rather than Commonwealth-wide practice; and second, that its statistical analysis was impermissible ([3]). The High Court allowed the appeal, set aside the Court of Appeal's orders and remitted the matter to that Court ([39], [57]). It did not itself fix a new sentence.
The first ground concerned the reach of sentencing practice for federal offences. The Court held that a federal offence is an offence against the Australian community, and the same offence is involved wherever in the Commonwealth it is committed ([24]). Therefore, a State court sentencing a federal offender must have regard to sentencing practices across Australia. The Victorian court could not treat local practice as the exclusive or presumptively correct benchmark ([18]-[19], [23]-[27]).
The judgment recognises that State and Territory laws can still matter. Section 68 of the Judiciary Act 1903 (Cth) may apply local criminal procedure and sentencing provisions to federal offences, subject to the terms of Commonwealth law ([20]-[23]). Differences in aggregate sentencing or parole arrangements, for example, may produce legitimate differences between jurisdictions ([21]). But where Pt IB of the Crimes Act 1914 (Cth) provides for a different sentencing consideration, Commonwealth law governs to the exclusion of inconsistent local law ([22]). The judgment's approach is therefore not that every federal sentence must be identical, but that sentencing should be informed by the national pattern and the applicable law.
The Court also explained what consistency does and does not mean. It means treating like cases alike and different cases differently, through consistent application of legal principles ([28(1)]-[28(2)]). It does not mean numerical equivalence or a mechanically calculated national tariff ([28(4)]). Sentencing is an individualised and discretionary task, and the relevant factors will not be identical from case to case ([27], [46]).
Comparable appellate decisions have an important but limited role. The joint reasons of French CJ, Keane and Nettle JJ say that intermediate appellate courts must have regard to comparable decisions from other intermediate appellate courts unless there is a compelling reason not to, such as significant differences in the offence or offender, or a view that the prior sentence was manifestly excessive or inadequate ([29]). Those decisions can act as “yardsticks” to illustrate a possible range, but do not set binding upper and lower limits ([27], [29]).
The second ground concerned the table and graph. The main reasons considered it erroneous to treat a person's “courier” status as having uniform significance and drug quantity as the only variable affecting seriousness ([33]-[37]). The court must assess what the offender actually did, rather than let a label such as “courier” obscure the conduct ([34]). Likewise, drug quantity may be important, but its significance depends on the case. The offender's knowledge, role, reward, purpose and other relevant circumstances may also matter ([35]-[36]).
Bell and Gageler JJ added a qualification about statistics. They agreed that it was an error to treat quantity as the only variable, but did not say that statistical material is inherently impermissible. They considered that statistics can help reveal sentencing patterns if their basis and limitations are understood ([45]-[50]). The particular table was of limited utility for Pham because it concerned people described as couriers with no, or no relevant, prior convictions, while Pham had several prior convictions and had served prison sentences ([51]). Thus, the judgments agree on the error in the Court of Appeal's use of the material, while expressing different emphases about the potential value of statistics more generally.
Finally, the Court considered the threshold for appellate intervention. A sentence is not manifestly excessive merely because an appellate court would have imposed less, or because it looks heavy beside other sentences. The appellate court must find error in the sentencing discretion and be driven to conclude that there was a misapplication of principle ([28(7)], [55]-[56]). The errors concerning jurisdictional practice and the statistical comparison affected the Court of Appeal's reasoning, so the proper course was remittal for redetermination rather than a sentence fixed by the High Court ([30]-[39]).
The judgment treats the core national-consistency principle as established by earlier High Court authority, particularly Hili v The Queen ([18], [26]). It also relies on Wong v The Queen for the propositions that consistency is not numerical equivalence and that a statistical presentation of sentence lengths does not explain why the sentences were imposed ([28(4)]-[28(5], [32]). Barbaro v The Queen is cited for the limited role of historical sentencing ranges: they are yardsticks, not the outer boundaries of discretion ([27]).
The contribution of Pham is to apply those principles to a State appellate court's analysis of federal drug sentences and to clarify the expectation of “following” comparable intermediate appellate decisions. As stated at [29], an individual sentence does not create a binding precedent. Nevertheless, comparable appellate sentencing decisions must be considered as yardsticks unless there is a compelling reason not to. The court thus distinguishes binding legal principle from the persuasive value of a particular sentencing outcome.
The decision also clarifies the interaction between Commonwealth sentencing and local law. Local provisions can operate where picked up by s 68 of the Judiciary Act and where Commonwealth law leaves room for them. But sentencing for federal offences must still be approached with a Commonwealth-wide perspective ([20]-[24]). The practical direction is not that jurisdictional differences vanish, but that any difference must be supported by relevant legal or factual considerations rather than a preference for local practice simply because it is local ([21], [27]).
On statistical evidence, the judgment should be read with attention to the separate reasons. French CJ, Keane and Nettle JJ re-emphasised that numerical tables and graphs are unhelpful and should be avoided as a means of representing federal sentencing outcomes ([28(5)], [32]). Bell and Gageler JJ considered that appropriately compiled statistics can have a role, while warning that their value depends on the size and comparability of the material and the care with which it is used ([49]-[51]). The common ground is that statistical correlation cannot substitute for reasons-based comparison or individualised sentencing.
At [28(1)], the Court says: “Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.” In plain English, consistency does not mean imposing the same sentence on everyone convicted of the same offence. It means applying the same legal approach while taking relevant differences seriously.
At [28(4)], the Court states that consistency “is not synonymous with numerical equivalence” and cannot be expressed mathematically or in a table. This rejects the idea that a sentence can be tested simply by locating it on a graph or matching it to an average.
At [29], the Court explains that other intermediate appellate decisions operate as “yardsticks” that may illustrate, but not define, a possible range. A sentencing court is expected to consider comparable decisions, but it must still assess the individual case and may have a compelling reason not to follow a particular comparison.
At [34], the Court warns that calling an offender a “courier” must not obscure what the person did. In plain English, role labels are shorthand, not substitutes for examining the offender's actual knowledge, conduct and place in the enterprise.
At [35], the Court rejects treating drug weight as the chief sentencing factor without considering other matters, including knowledge and reward. The quantity may be significant, but its significance depends on the whole circumstances.
At [56], Bell and Gageler JJ explain that the sentencing discretion did not produce “a single correct sentence”. This means an appeal is not an opportunity simply to substitute the appellate judges' preferred sentence. The question is whether the original sentence involved an appealable error, including whether it was unreasonable or plainly unjust.
The decision is directly concerned with State or Territory courts sentencing offenders for federal offences. Its national-consistency reasoning is engaged where a court is asked to compare the sentence with local practice while overlooking decisions elsewhere in Australia ([18]-[27]).
It is particularly relevant where an intermediate appellate court assesses manifest excess or inadequacy by compiling sentences from other jurisdictions. The comparison should focus on decisions that are genuinely comparable and should account for relevant differences in offending and offender circumstances ([29], [51]). A table that selects cases using broad categories, such as “courier” or “no relevant prior convictions”, may have limited value if the selection criteria do not fit the offender under appeal.
The judgment is also relevant where a proposed comparison relies heavily on the quantity of a drug or a percentage of a statutory threshold. Quantity can inform seriousness, but the precedent cautions against treating it as determinative without examining knowledge, role, reward, purpose and other relevant matters ([34]-[37], [45]). More generally, a sentencing argument based on a statistical range must avoid treating past outcomes as fixed boundaries or as proof, by themselves, that a sentence is manifestly excessive.
The supplied judgment gives no account of decisions after 4 November 2015 applying or distinguishing Pham. It therefore does not establish how later courts have treated the case, and no subsequent treatment can be stated from this source alone.
What the judgment itself says about precedent is clear. It applies Hili's Commonwealth-wide consistency principle and explains the role of comparable appellate decisions as yardsticks ([18], [26], [29]). It relies on Wong and Barbaro to explain why sentencing consistency is not numerical equivalence and why a historical range does not define the lawful limits of discretion ([27]-[28]). It also invokes Olbrich and Wong to reject a sentencing analysis that allows the courier label or drug weight to displace examination of the actual offending ([34]-[36]).
For research purposes, the decision's two sets of reasons should be kept distinct when describing statistical material. The three-Justice reasons state that tables and graphs are unhelpful and should be avoided ([28(5), [32]). Bell and Gageler JJ accept the error in the particular analysis but recognise a potential role for carefully compiled statistics ([45]-[51]). Both sets of reasons support the result that the Court of Appeal's reliance on the analysis was erroneous in this case.
The judgment does not determine what sentence Pham should receive. The remitted Court of Appeal was to reconsider the matter according to law ([39]). The High Court's order therefore does not establish whether the original County Court sentence was ultimately to be restored or varied.
The judgment also does not provide a formula for deciding when a set of earlier decisions is sufficiently comparable, or how much weight any particular “yardstick” should receive. It identifies possible reasons a decision may be irrelevant, including materially different offence or offender circumstances, but leaves the evaluation to the sentencing court ([29]).
The differing emphasis on statistical material leaves a practical question about the circumstances in which statistics can assist without distorting the sentencing task. Bell and Gageler JJ identify relevant cautions: the compilation method must be understood, the comparison set must be meaningful, and the number of cases may be too small to reveal a pattern ([49]-[51]). The judgment does not specify a universal methodology for selecting, adjusting or presenting sentencing data.
Finally, the decision recognises that State sentencing laws and systems may produce some jurisdictional differences, including in sentence structure and non-parole periods ([20]-[23]). It does not exhaustively define when a particular difference is justified. The governing point is that a local variation must be assessed in light of applicable law and relevant circumstances, not adopted simply because local practice differs from the rest of the Commonwealth.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
FRENCH CJ,
BELL, GAGELER, KEANE AND NETTLE JJ
THE QUEEN (CTH) APPELLANT
AND
VU LANG PHAM RESPONDENT
The Queen v Pham
[2015] HCA 39
4 November 2015
M82/2015
ORDER
Appeal allowed.
Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 September 2014.
Remit the matter to the Court of Appeal for determination.
On appeal from the Supreme Court of Victoria
Representation
R J Bromwich SC with D D Gurvich for the appellant (instructed by Commonwealth Director of Public Prosecutions)
G A Archer SC with M D Phillips for the respondent (instructed by Victoria Legal Aid)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Pham
Criminal law – Sentencing – Federal offences – Consistency – Current sentencing practices – Whether sentencing courts to have regard to current sentencing practices throughout Commonwealth.
Criminal law – Appeals against sentence – Manifest excess or inadequacy – Sentencing statistics – Drug importation offences – Whether permissible to assess current sentencing practices by statistical analysis of correlation between sentence and quantity of drug imported.
Precedent – Intermediate appellate courts – Use of sentencing decisions of intermediate appellate courts.
Words and phrases – "consistency", "courier", "current sentencing practices", "statistics", "yardstick".
Crimes Act 1914 (Cth), Pt IB.
Criminal Code (Cth), s 307.2.
Judiciary Act 1903 (Cth), s 68.
Sentencing Act 1991 (Vic), s 5(2)(b).
FRENCH CJ, KEANE AND NETTLE JJ. Upon pleading guilty before a judge of the County Court of Victoria (Judge Tinney) to one charge of importing a marketable quantity of a border controlled drug, namely, heroin, contrary to s 307.2(1) of the Criminal Code (Cth), the respondent was convicted and sentenced to eight years and six months' imprisonment with a non-parole period of six years.
On appeal to the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Osborn and Kyrou JJA), the sentence was set aside and the respondent was re-sentenced to six years' imprisonment with a non-parole period of four years.
By special leave granted on 15 May 2015, the Commonwealth Director of Public Prosecutions appeals to this Court on grounds that the Court of Appeal erred in law by:
(1) determining that the respondent should be sentenced in accordance with current sentencing practices in Victorian courts, to the exclusion of sentencing practices throughout the Commonwealth; and
(2) adopting an impermissible statistical analysis of comparable cases to determine the objective seriousness of the subject offence.
The facts
The respondent was born in Vietnam and migrated to Australia with his parents when he was still a child. He left home after completing year 9 at high school and was introduced to illicit drugs. Thereafter he struggled with drug dependency issues up to the time of the subject offending.
At the time of sentencing, he had prior convictions for possession and use of drugs, and for offences of dishonesty. He also had a prior conviction for trafficking heroin, which dated back to 1996. On that occasion, he had been released on a community-based order for 12 months, on condition that he perform 40 hours of unpaid community work.
In February 2013, the Australian Federal Police began investigating drug importation activities connected with Anh Lan Vo. They believed that Vo was responsible for organising couriers to transport drugs from Vietnam to Australia and, subsequently, organising the trafficking of those imported drugs.
During the investigation, the police lawfully intercepted telephone conversations, to which Vo was a party, which disclosed that Vo had facilitated the purchase of airline tickets in the name of the respondent. Police believed that Vo and her associates had recruited the respondent to bring drugs from Vietnam to Australia.
On 4 February 2013, the respondent was issued with an Australian passport by the Department of Foreign Affairs and Trade and, on 6 February 2013, a Vietnam Airlines ticket for return travel from Melbourne, departing Melbourne on 7 February 2013, was issued in the respondent's name. The respondent was originally set to return on 7 March 2013 but that was subsequently altered to 15 March 2013.
The Vietnam Airlines flight arrived at Melbourne Airport on Friday, 15 March 2013 with the respondent on board. Officers of the Australian Customs and Border Protection Service received information from the captain and crew that the respondent had required medical attention during the flight for a potential drug overdose, and that a crew member had found two clear plastic packages containing white powder in a bathroom that the respondent had used. Customs officers detained the respondent, who admitted under caution to having ingested heroin whilst on board the flight, that the packages were his and that he guessed that they contained heroin.
Subsequent testing established that the packages contained heroin mixed with caffeine and that the weight of pure heroin was 577.1 grams. A marketable quantity of heroin is between two grams and 1.5 kilograms1.
The respondent was committed by way of straight hand-up brief on 10 July 2013, after which he entered a plea of guilty to the sole charge on the indictment.
The judgments delivered in the Court of Appeal
Each member of the Court of Appeal delivered separate reasons for judgment. Maxwell P gave the leading judgment. Near to the outset of his Honour's reasons, he said that "the [respondent] pleaded guilty in the reasonable expectation that he would be sentenced in accordance with current sentencing practices in Victorian courts"2. His Honour annexed a statistical analysis of the results of 32 sentencing decisions of Australian intermediate appellate courts for offences involving a marketable quantity of a border controlled drug in which the accused was a "courier", had pleaded guilty and had no relevant prior convictions. The presentation included a calculation of the quantity imported expressed as a percentage of the commercial quantity for each of the different drugs imported (without distinguishing between drugs and precursors) and ranked the cases according to the percentage of the commercial quantity for the given drug in each case.
In a further attachment, his Honour presented a graph which plotted what was described as the correlation between the head sentence imposed (in months) and the quantity of the drug imported as a percentage of the commercial quantity, with the results shown separately for Victoria alone and then by way of comparison for all other States taken together.
Based on those analyses, his Honour concluded that the sentences imposed in New South Wales, Queensland and Western Australia were substantially greater than sentences imposed in Victoria for offences involving similar quantities of drugs; that the sentence imposed on the respondent was "well outside the range indicated by Victorian practice"; and that, because the respondent would have pleaded guilty with the "reasonable expectation" that he would be sentenced in accordance with current sentencing practices of Victorian courts, the appeal had to be allowed3.
Osborn JA observed in his reasons for judgment that an analysis of sentencing statistics by reference only to the weight of the drug imported is at risk of masking differences with respect to other aspects of the culpability of the offender, such as the role of the offender, the relative extent to which the offender stood to profit from the offending and the purpose of the importation. His Honour also noticed that such an analysis may mask significant differences between the personal circumstances of the analysed offenders and thus, as was observed in Wong v The Queen4, a statistical analysis of sentences for an offence which encompasses a very wide range of conduct and criminality is fraught with problems, especially if the number of examples is small. Osborn JA was persuaded, however, that the analysis undertaken by Maxwell P was relevant. His Honour observed that "[i]f a sentence appears to be outside the range ordinarily imposed in generally similar circumstances, that fact invites very close scrutiny of the individual case. The analysis undertaken by the President demonstrates that this is such a case", albeit that "other sentences cannot be definitive of error". His Honour then turned to a detailed consideration of the respondent's individual circumstances and concluded that, in view of the weight of the drug involved and the respondent's individual circumstances, the sentence imposed in the County Court was manifestly excessive.
Current sentencing practices
The Director of Public Prosecutions submits that Maxwell P erred in holding that the respondent was entitled to expect that he would be sentenced in accordance with current sentencing practices in Victoria as opposed to the relevant range of sentences established across all States and Territories.
That contention should be accepted. As Hili v The Queen6 made clear, where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.
It follows that to approach the sentencing task on the basis that an offender is entitled to assume that he or she will be sentenced in accordance with current sentencing practices in the State or Territory where the offender is sentenced is an error that is likely to result in just the kind of inconsistency that the Australia-wide approach mandated by Hili is calculated to avoid.
Of course, that is not to say that there are not differences between various State and Territory laws concerning trial and conviction, including sentencing laws, which may be picked up and applied to federal offences by s 68 of the Judiciary Act 1903 (Cth). The Australia-wide approach mandated in Hili recognises that, to some extent at least, the effect of s 68 of the Judiciary Act is "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State"7.
So, for example, a State or Territory aggregate sentence law may be picked up and applied in a manner which results in a different sentence structure in one State or Territory from that which would be imposed for the same federal offence in another State or Territory8. The parole system in one State or Territory may also be so much different from the system in another as to warrant a significant difference between the non-parole period imposed in respect of a federal offence and the non-parole period which would be imposed for the same offence in the other State or Territory9. It might be, too, that the particular difficulties faced by a class of offender in one State or Territory would warrant a significant difference between the sentences imposed for the same offence in other States or Territories10.
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently19.
(2) The consistency that is sought is consistency in the application of the relevant legal principles20.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts21.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form22.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided23.
(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so24.
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle25.
Error in the use of current sentencing practices
Maxwell P was not correct in stating that the respondent was entitled to assume that he would be sentenced in accordance with current sentencing practices in Victoria as opposed to current sentencing practices throughout the Commonwealth. It is apparent from Kyrou JA's reasons for judgment that Kyrou JA was also significantly influenced by the fact of what Maxwell P identified as a considerable difference between Victorian and other States' current sentencing practices with respect to the offence of importation of a marketable quantity of a border controlled drug. Osborn JA's reasons show that he was less concerned with sentences imposed in comparable cases than the range of legitimate sentencing considerations which he identified, but nevertheless that he too considered the identified disparity to be in itself a relevant sentencing consideration and thus that, to some extent, the fact of the disparity informed his conclusion that the sentence was manifestly excessive.
Accordingly, the first ground of appeal should be upheld.
Error in the use of statistical analyses
"Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results."
This case illustrates the point. As was earlier noticed, the first of the two attachments to Maxwell P's reasons was a tabular presentation of sentences imposed in a number of previous cases of "couriers" who pleaded guilty to offences of importation of various kinds of border controlled drugs and had no relevant prior convictions. The second was a graph – although it might more accurately be described as two of several possible lines of best fit – of the correlation between the head sentences imposed (in months) and quantities imported as a percentage of the commercial quantity, separately for Victoria and by way of comparison with all other States taken together. In his reasons for judgment, Maxwell P stated that the table and graph were so constructed because cases involving an offender who has performed the role of courier, pleaded guilty and had no relevant prior convictions were so prevalent that "a large number of sentencing decisions can be assembled – for the purposes of comparison – in which the only variable factor affecting offence seriousness is the quantity imported"29.
As was emphasised in R v Olbrich, however, characterising an importer of a border controlled drug as a "courier" must not be allowed to obscure the assessment of what the offender and prior offenders have done30:
"[I]t is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did."
"[T]here will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.
... The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle."
"This legislative approach, which recognises the financial rewards available from dealing in illicit drugs ... differentiates between various narcotic substances in designating the trafficable and commercial quantities, but applies the same penalty regime to the quantities so designated. It may be contrasted with legislation in New Zealand and Canada, which grades drugs according to a legislative perception of their harmfulness, and prescribes penalties based on harmfulness rather than quantities."
Nothing said in Adams, however, displaced the holding in Wong that to treat the weight of the narcotic as the chief factor in fixing sentence, without taking into account the many conflicting and contradictory elements which bear upon sentencing an offender, represents a departure from fundamental sentencing principle.
It follows that by assuming that the "courier" status of the respondent and each of the prior offenders was of uniform significance, and treating the weight of the drug imported in each case as "the only variable factor affecting offence seriousness"34, Maxwell P, in effect, deployed two departures from fundamental principle as if they were correct statements of principle indicative of error in the sentence passed below. And, as has been seen, those errors played at least some part in each of the other judges' conclusions.
It follows that the second ground of appeal should also be upheld.
Conclusion and orders
In the result, the reasoning of all three judges was to some extent affected by error. The appeal should therefore be allowed and the orders of the Court of Appeal should be set aside. Consistently with the usual practice in appeals against sentence, the matter should be remitted to the Court of Appeal for redetermination according to law.
BELL AND GAGELER JJ. The facts and procedural history are set out in the reasons of French CJ, Keane and Nettle JJ and need not be repeated in order to explain our reasons.
This appeal is brought on two grounds. The first ground complains that the Court of Appeal of the Supreme Court of Victoria erred by taking into account current sentencing practice in Victoria to the exclusion of the sentencing practice in other jurisdictions. We agree with French CJ, Keane and Nettle JJ that this ground succeeds for the reasons that their Honours give.
We prefer to express our own reasons with respect to the second ground, which is said by the appellant to raise consideration of "the scope" of the decisions in Hili v The Queen35 and Barbaro v The Queen36. In particular, the second ground is said to raise the question of whether those decisions are concerned not only with the consistent application of sentencing principles but also with reasonable consistency of sentencing outcomes37.
The second ground, in terms, contends that the Court of Appeal "adopted an impermissible statistical analysis of comparable cases to determine the objective seriousness of the offence." The reference is to the table, "Attachment A" ("the Table"), and the graph, "Attachment B", in Maxwell P's reasons. The impermissible feature of the statistical analysis which the appellant identifies is the inclusion in the Table of a column setting out the weight of the imported drug with the inclusion of a further column expressing that weight as a percentage of the commercial quantity applicable to that drug.
The Criminal Code (Cth) ("the Code") prescribes the same maximum penalty for the importation of a marketable quantity of any border controlled drug and the same maximum penalty for the importation of a commercial quantity of any border controlled drug38. Differing quantities of those drugs are specified as the marketable quantity and the commercial quantity, as the case may be39. The purpose of expressing the weight of a drug as a percentage of the commercial quantity prescribed for that drug is to provide a common denominator allowing comparison between, say, the importation of a quantity of heroin, for which the commercial quantity is 1.5kg, and the importation of a quantity of methamphetamine, for which the commercial quantity is 0.75kg.
"Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were." (emphasis added)
"As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. This history stands as a yardstick against which to examine a proposed sentence."
Their Honours, having earlier distinguished the "proper and ordinary" use of sentencing statistics and material indicating sentences imposed in comparable cases, went on to identify these aids as part of the material which the sentencer must take into account48.
It will be recalled that in Wong v The Queen Gleeson CJ commented on the challenge to consistent sentencing that is presented by the increasing size of the judiciary and the legal profession49. Specialisation in legal practice is now the norm and, as a consequence, sentencing and appellate judges may not have the knowledge that judges a generation ago possessed of the range of likely penalties for common offences50. The Commonwealth Director of Public Prosecutions supplies the Judicial Commission of New South Wales with the details of sentences imposed on federal offenders in all the Australian jurisdictions. The National Judicial College makes this material available to all Australian judicial officers. This is a source of potentially relevant information about the pattern of sentencing for federal offences. Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled51 and provided the limitations explained in the extract from Barbaro above are observed. The value of sentencing statistics will vary between offences. It is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set.
The appellant correctly submits that comparable cases decided by the intermediate courts of appeal provide the most useful guidance to a sentencing judge. An appellate court's reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance.
Osborn JA commented that the material in the Table was significantly more helpful than the material commonly presented to the Court52. His Honour did not expand on this observation but it is likely to have reflected that each of the 32 cases in the Table was identified by name and citation and that each had been decided by an appellate court. The Table was confined to sentences imposed for importing (or attempting to possess) a marketable quantity of a border controlled drug by persons who had pleaded guilty to the offence, had no (or no relevant) prior convictions and performed the role of courier (or recipient) in the enterprise. The criteria for the exclusion of "relevant" prior convictions are not stated. This is a deficiency in this case. The respondent had a number of prior convictions and had served "a handful of prison sentences". His most recent convictions, for arson and assault, had resulted in sentences of imprisonment. The sentence imposed by Judge Tinney was expressed to reflect the need for specific deterrence among other purposes. In the circumstances, the Table recording the sentences imposed on persons who pleaded guilty to importing drugs as a courier, and who had no (or no relevant) prior convictions, was a yardstick of limited utility by which to gauge the respondent's sentence.
Criminal Code, s 314.4(1), item 76. ↩
Pham v The Queen [2014] VSCA 204 at [10]. ↩
Pham [2014] VSCA 204 at [10]. ↩
(2001) 207 CLR 584 at 608 [66] per Gaudron, Gummow and Hayne JJ; [2001] HCA 64. ↩
Pham [2014] VSCA 204 at [73]. ↩
(2010) 242 CLR 520 at 538 [57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2010] HCA 45. ↩
Williams v The King [No 2] (1934) 50 CLR 551 at 560 per Dixon J; [1934] HCA 19, quoted in Leeth v The Commonwealth (1992) 174 CLR 455 at 467 per Mason CJ, Dawson and McHugh JJ; [1992] HCA 29. ↩
Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8. ↩
Leeth (1992) 174 CLR 455. ↩
Neal v The Queen (1982) 149 CLR 305 at 324-326 per Brennan J; [1982] HCA 55. ↩
Putland (2004) 218 CLR 174 at 179-180 [7] per Gleeson CJ. ↩
(2004) 218 CLR 174 at 202-203 [81]-[82]. ↩
(2001) 207 CLR 584 at 591 [6].
The Queen
Pham [2015] HCA 39
(2001) 207 CLR 584
(2010) 242 CLR 520
(1934) 50 CLR 551
(1992) 174 CLR 455
(2004) 218 CLR 174
(1982) 149 CLR 305
(2010) 79 NSWLR 1
(2014) 253 CLR 58
(2011) 242 CLR 573
(1999) 199 CLR 270
(2008) 234 CLR 143
(2005) 228 CLR 357
(1998) 194 CLR 610
(1936) 55 CLR 499
(2000) 202 CLR 321
Appeal allowed. The orders of the Court of Appeal of the Supreme Court of Victoria made on 5 September 2014 were set aside, and the matter was remitted to that Court for determination according to law.
Kyrou JA stated that the statistics set out in the attachments to Maxwell P's judgment established that the impugned sentence was out of line with current sentencing practices in Victoria. That factor, taken together with the other considerations to which Osborn JA referred, satisfied him that the subject sentence must have resulted from such a misapplication of principle as to warrant appellate intervention.
Nevertheless, such State and Territory sentencing laws as are picked up and applied by s 68 of the Judiciary Act operate only so far as they are applicable and the laws of the Commonwealth do not otherwise provide. They are excluded where applicable Commonwealth sentencing laws leave no room for their application11. To the extent that Pt IB of the Crimes Act 1914 (Cth) specifically or impliedly provides for sentencing considerations which are different from otherwise applicable State and Territory sentencing considerations, the Crimes Act is exclusive.
Part IB of the Crimes Act does not specifically provide for sentencing judges to take current sentencing practices into account. Apart from the application of such relevant State or Territory legislation as may be picked up and applied by s 68 of the Judiciary Act, the obligation of a judge to take current sentencing practices into account when sentencing an offender for a federal offence arises as a matter of common law. Section 5(2)(b) of the Sentencing Act 1991 (Vic) provides for a sentencing judge to take current sentencing practices into account, and to some extent it is capable of operating consistently with Pt IB of the Crimes Act. But, whereas in its application to State offences s 5(2)(b) necessarily directs attention to current sentencing practices in Victoria (albeit not necessarily to the exclusion of current sentencing practices elsewhere in the Commonwealth), in the case of federal offences it is implicit in Pt IB of the Crimes Act that a sentencing judge must have regard to current sentencing practices throughout the Commonwealth.
As Kirby J observed in Putland v The Queen12, a federal offence is, in effect, an offence against the whole Australian community and so the offence is the same for every offender throughout the Commonwealth. Hence, in the absence of a clear statutory indication of a different purpose or other justification, the approach to the sentencing of offenders convicted of such a crime needs to be largely the same throughout the Commonwealth. Further, as Gleeson CJ stated in Wong13, the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency. And, as was observed by the plurality in Hili14, the search for consistency requires that sentencing judges have regard to what has been done in comparable cases throughout the Commonwealth.
Counsel for the respondent submitted that, allowing that the Court of Appeal was bound to have regard to sentencing practices throughout the Commonwealth, it was not, however, incumbent on the Court of Appeal to follow sentencing practices in other States. Having had regard to current sentencing practices in other States, it was open to the Court of Appeal to prefer Victorian current sentencing practices and, in view of current sentencing practices in Victoria, to conclude that the sentence imposed was excessive.
That submission should be rejected. As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles15; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence16.
It does not mean 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 was emphasised in Hili17, and again more recently in Barbaro v The Queen18, the sentencing task is inherently and inevitably more complex than that. But it does mean that to prefer one State's sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.
Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:
It is well settled that the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness of an importation offence (or other drug offence)41. The quantity of the drug imported (or trafficked or possessed) will usually be relevant to assessment of the seriousness of the offence. In some cases it will be the most significant consideration in this regard and in other cases it may be of little moment42. If, as the appellant asserts, the Court of Appeal used the Table in order to determine the objective seriousness of the respondent's offence it would be an error43. However, misuse of the Table would not demonstrate that presentation of material of this kind as an aid in sentencing is impermissible.
The appellant is right to submit that the "reasonable consistency" to which the joint reasons in Hili refer is with respect to sentencing outcomes44. The qualifier "reasonable" in this context is an acknowledgment both that sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases. It is in this connection that the joint reasons in Hili state45:
It was an error to reason, as Maxwell P did, that in the case of drug importation by "couriers" the only variable affecting the seriousness of the offence is the quantity of the drug imported54. By contrast, Osborn JA (with whose reasons Kyrou JA agreed) correctly observed that consideration of the quantity of the drug imported may mask other relevant considerations that bear on the seriousness of the offending55.
The respondent acknowledges that the courts must take into account sentencing practice throughout Australia in sentencing federal offenders and that it is an error to determine the objective seriousness of his offence solely by reference to the weight of the drug or solely by comparison of comparable cases. He does not seek to support Maxwell P's analysis. The respondent submits that the majority in the Court of Appeal rested their conclusion of manifest excess upon reasons that are not tainted by either error of which the appellant complains. Moreover, the respondent submits that the cases in the Table do not support Maxwell P's conclusion that in New South Wales, Queensland and Western Australia substantially higher sentences have been imposed for drug importation offences than in Victoria56. Correctly understood, the respondent submits that the statistical material supports Osborn JA's conclusion that the sentence imposed on him is "heavy" by comparison with comparable cases throughout Australia.
The respondent's submissions which seek to insulate the majority's holding from error in the use of the Table must be rejected. At the commencement of his reasons, Osborn JA said that the Table "demonstrates that the sentence imposed was on its face a heavy one if assessed against sentencing practice in Victoria"57. When his Honour came to set out the factors that in combination led him to conclude that the sentence was manifestly excessive he did not, in terms, only refer to what the Table demonstrated about Victorian sentencing practice. His Honour described the sentence as "very heavy when compared with the class of broadly comparable cases identified by the President"58. It will be recalled that the Table included decisions from other jurisdictions. In light of the earlier reference to Victorian sentencing practice, if his Honour was making a different, wider point about the pattern of sentencing across the jurisdictions, it might be expected that he would have said so. In any event, it is apparent that his Honour wrongly treated the pattern of past sentences as defining the boundaries of the proper exercise of the sentencing judge's discretion.
Osborn JA's conclusion of manifest excess was based on the combined effect of the six matters set out at [77] of his reasons. The respondent points out that the first five matters address the applicable factors that a sentencing court is required to take into account under s 16A(2) of the Crimes Act 1914 (Cth), save for specific deterrence. As to this factor, the respondent submits it was unnecessary for Osborn JA to refer to it given that the original and the substituted sentence involve lengthy imprisonment. The submissions overlook the need for the appellate court to find error before it exercises the sentencing discretion afresh.
The only issue raised by the respondent's appeal to the Court of Appeal, as Osborn JA acknowledged at the outset, was whether the sentence arrived at by Judge Tinney was reasonably open to him59. The circumstance that Osborn JA (and Kyrou JA) would have given greater weight to the respondent's (a) limited role and financial interest in the enterprise; (b) medical condition; (c) plea of guilty and cooperation with the authorities; (d) prospects of rehabilitation; and (e) likelihood of being shunned within the prison community60 does not establish that Judge Tinney's weighting of these same factors was wrong. The exercise of the discretion that the law reposed in Judge Tinney did not yield a single correct sentence61. It is only if the sentence is found to be "unreasonable or plainly unjust" that the challenge of manifest excess succeeds62. Manifest excess is a conclusion, relevantly in the context of sentencing for this offence, that the sentence is manifestly too long63. To observe that a sentence is "very heavy" when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencer's discretion.
The appeal must be allowed and the orders proposed by French CJ, Keane and Nettle JJ made.
(2010) 242 CLR 520 at 536 [53] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. ↩
(2010) 242 CLR 520 at 535 [49], 538 [57]. ↩
(2010) 242 CLR 520 at 537 [54]; see also Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at 70-71 [303]-[305] per Simpson J. ↩
(2010) 242 CLR 520 at 537 [54], 539 [60]. ↩
(2014) 253 CLR 58 at 70-71 [24]-[28], 74 [41] per French CJ, Hayne, Kiefel and Bell JJ; [2014] HCA 2. ↩
Wong (2001) 207 CLR 584 at 591 [6] per Gleeson CJ, 608 [65] per Gaudron, Gummow and Hayne JJ; Hili (2010) 242 CLR 520 at 535 [49]. ↩
Hili (2010) 242 CLR 520 at 535 [49]. ↩
Hili (2010) 242 CLR 520 at 537-538 [56]. ↩
Wong (2001) 207 CLR 584 at 608 [66]; Hili (2010) 242 CLR 520 at 535 [48]. ↩
Wong (2001) 207 CLR 584 at 608 [66]. ↩
Hili (2010) 242 CLR 520 at 538 [57]. ↩
Wong (2001) 207 CLR 584 at 605 [58]; Barbaro (2014) 253 CLR 58 at 79 [61]. ↩
Wong (2001) 207 CLR 584 at 605 [57] per Gaudron, Gummow and Hayne JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 596 [55] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10. ↩
Hili (2010) 242 CLR 520 at 537 [54]; Barbaro (2014) 253 CLR 58 at 74 [41]. ↩
(2010) 242 CLR 520 at 535 [48] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. ↩
Pham [2014] VSCA 204 at [3]. ↩
(1999) 199 CLR 270 at 279 [19] per Gleeson CJ, Gaudron, Hayne and Callinan JJ; [1999] HCA 54. ↩
(2001) 207 CLR 584 at 609 [69]-[70] per Gaudron, Gummow and Hayne JJ. ↩
(2008) 234 CLR 143; [2008] HCA 15. ↩
(2008) 234 CLR 143 at 146 [3] per Gleeson CJ, Hayne, Crennan and Kiefel JJ (footnotes omitted); see also at 148 [10]. ↩
Pham [2014] VSCA 204 at [3]. ↩
(2010) 242 CLR 520; [2010] HCA 45. ↩
(2014) 253 CLR 58; [2014] HCA 2. ↩
See Hili v The Queen (2010) 242 CLR 520 at 535-538 [47]-[57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. ↩
The Code, ss 307.1(1), 307.2(1). ↩
The Code, s 314.4(1). This provision now appears in Criminal Code Regulations 2002 (Cth), reg 5D, Sched 4. ↩
The Code, s 314.4(1). ↩
Wong v The Queen (2001) 207 CLR 584 at 609 [67] per Gaudron, Gummow and Hayne JJ; [2001] HCA 64. ↩
Markarian v The Queen (2005) 228 CLR 357 at 373 [33] per Gleeson CJ, Gummow, Hayne and Callinan JJ; [2005] HCA 25. ↩
Hili v The Queen (2010) 242 CLR 520 at 536-537 [53]-[54] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. ↩
(2010) 242 CLR 520 at 535 [49] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. ↩
(2010) 242 CLR 520 at 535 [48] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. ↩
Hili v The Queen (2010) 242 CLR 520 at 536-537 [53]-[54] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. ↩
(2014) 253 CLR 58 at 74 [41] per French CJ, Hayne, Kiefel and Bell JJ. ↩
Barbaro v The Queen (2014) 253 CLR 58 at 74 [40]-[41] per French CJ, Hayne, Kiefel and Bell JJ. ↩
(2001) 207 CLR 584 at 592-593 [10]. ↩
Wong v The Queen (2001) 207 CLR 584 at 592-593 [10] per Gleeson CJ. ↩
See Knight v The Queen [2015] NSWCCA 222 at [3]-[13] per R A Hulme J. ↩
Pham v The Queen [2014] VSCA 204 at [63] per Osborn JA (Kyrou JA agreeing at [82]). ↩
Pham v The Queen [2014] VSCA 204 at [37] per Maxwell P. ↩
Pham v The Queen [2014] VSCA 204 at [1]-[3]. ↩
Pham v The Queen [2014] VSCA 204 at [66]-[68] per Osborn JA (Kyrou JA agreeing at [81]). ↩
Pham v The Queen [2014] VSCA 204 at [8]. ↩
Pham v The Queen [2014] VSCA 204 at [63] per Osborn JA (Kyrou JA agreeing at [83]). ↩
Pham v The Queen [2014] VSCA 204 at [77(f)] per Osborn JA (Kyrou JA agreeing at [81]). ↩
Pham v The Queen [2014] VSCA 204 at [62] per Osborn JA (Kyrou JA agreeing at [81]). ↩
Pham v The Queen [2014] VSCA 204 at [77] per Osborn JA (Kyrou JA agreeing at [81]). ↩
Pearce v The Queen (1998) 194 CLR 610 at 624 [46] per McHugh, Hayne and Callinan JJ; [1998] HCA 57; Markarian v The Queen (2005) 228 CLR 357 at 371 [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ. ↩
House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ; [1936] HCA 40. ↩
Dinsdale v The Queen (2000) 202 CLR 321 at 325 [6] per Gleeson CJ and Hayne J; [2000] HCA 54. ↩