Wong v R [2001] HCA 64; 207 CLR 584; 185 ALR 233; 76 ALJR 79

High Court of Australia|2001-11-15|Before: Callinan JJ

For the reasons that have already been given, the guideline stated in the present matters was intended to have prescriptive effect. As was said in McDonnell, it was to be treated as if departure from it would evidence an error of principle by the sentencing judge. Again, for the reasons given earlier, there is an important distinction between a court articulating the principles which do, or should, underpin the determination of a particular sentence and the publication of the expected or intended results of future cases. Articulation of applicable principle is central to the reasoned exercise of jurisdiction in the particular matters before the court. By contrast, the publication of expected or intended results of future cases is not within the jurisdiction or the powers of the court.

No doubt the provisions of the Criminal Appeal Act which give the Court of Criminal Appeal its jurisdiction and its powers are to be read without "making implications or imposing limitations which are not found in the express words"[95]. But the conclusion that the jurisdiction conferred on the Court of Criminal Appeal by the does not extend to publication of expected or intended results in proceedings other than the proceeding before the Court is a conclusion that does not depend on implying some limitation on or in the provisions by which the jurisdiction is given. In the words of of the , the Court's powers were to "vary the sentence and impose such sentence" on the offenders as was proper. It had jurisdiction in the matter which concerned the sentence passed on those particular offenders. It had no jurisdiction in respect of sentences passed or to be passed on others. The publication of a table of future punishments was neither to vary the sentence that was passed nor to pass a new sentence. It is not within the jurisdiction or the powers of the Court to publish such a table because, to adopt constitutional terms, that is not directed to the quelling of the only dispute which constitutes the matter before the Court. Nothing in of the gave the Court any relevant additional jurisdiction or power.

Further, as Winneke P rightly pointed out in R v Ngui & Tiong[96]:

"Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have[97]. It would ... be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge's discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice[98]."

It was, therefore, no "function" of the Court to publish the table it did. To speak in this context of the "functions" of a court distracts attention from the relevant inquiries which are inquiries about the court's jurisdiction and its powers. "Function" is a term which may carry with it unintended meanings and consequences, as appears to have been the case in the present matters. It may lead to the inversion of the proposition that the statement of principle applied by an appellate court in deciding a matter commands precedential obedience by courts lower in the hierarchy deciding future cases to the entirely wrong proposition that an appellate court may therefore issue such guidance about future cases as it sees fit. It has neither jurisdiction nor power to do that.

Not only was there no jurisdiction or power to issue the guideline, the principles which informed its construction were flawed (by the error in selecting weight of narcotic as the chief factor in sentencing) and either were incomplete (because of insufficient reference to the other factors mentioned in s 16A of the Commonwealth Crimes Act) or were not stated at all.

In the present matters, the error of the Court of Criminal Appeal lies in applying wrong principles in deciding the Director's appeals. The table which it published is affected by the same errors of principle. Further, to publish any table of intended future punishments exceeds the jurisdiction and powers which are given to it by the Criminal Appeal Act, as picked up and applied in these matters by s 68 of the Judiciary Act. No question arises in these matters of any disconformity between the State Act which was engaged (the Criminal Appeal Act) and the Judiciary Act or the Constitution. It would seem very likely that there would be such a disconformity if it were sought to engage Pt 8 of the 1986 Act in relation to federal offences but that is not a question which now arises. Nor is it necessary to consider whether the Court of Criminal Appeal in dealing, as it was, with a federal offence should have paid greater attention to the decisions of other intermediate appellate courts relating to that offence[99].

KIRBY J. In Lowe v The Queen[100], Mason J explained that consistency in criminal punishment is "a fundamental element in any rational and fair system of criminal justice". Inconsistency, he declared, "is calculated to lead to an erosion of public confidence in the integrity of the administration of justice" and is "regarded as a badge of unfairness and unequal treatment under the law"[101]. He was there speaking of disparity between the sentences imposed on co-offenders. However, the principle is one of general application.

In an attempt to reduce inconsistency in sentencing, suggestions have been made by law reform bodies[102]. Laws have been enacted, some seeking to give greater guidance to the exercise of sentencing discretions[103]. Other laws have set out to reduce the ambit of discretion and to substitute mandatory sentences for a wider category of offences[104]. One judicial response to the perceived concern about inconsistency has been the adoption of sentencing guidelines. Such guidelines were formulated by the Criminal Division of the English Court of Appeal 20 years ago[105] and have been followed since[106]. Similar initiatives have been taken by judges in New Zealand[107], Hong Kong[108] and elsewhere[109].

Australian courts of criminal appeal have also instituted attempts to reduce inconsistency in sentencing. At first, such attempts focused upon consideration of sentencing data, including statistics, particularly as provided to the New South Wales Court of Criminal Appeal by the Judicial Commission of that State[110]. Certain reservations have been expressed in other States about the risks inherent in the use of such data[111]. Raw statistics may afford impressions as to the range and patterns of sentencing; but they can sometimes mask a great variety of facts concerning an offence and an offender which only the study of the detailed reasons in each case would unveil.

More recently, the New South Wales Court of Criminal Appeal, at first without, and later with, statutory authority[112], has provided sentencing guidelines concerning particular offences[113]. The present appeals[114] involve an instance in which that Court formulated a "guideline judgment", identifying quantitative aspects of the offence in question to govern the sentencing of convicted offenders. The Court was clearly motivated by the laudable aim of removing the badge of unfairness, so far as that was possible and consistent with evaluative decisions made by judicial officers in a judicial proceeding. The purpose of "guideline judgments" is to replace informal, private and unrevealed judicial means of ensuring consistency in sentencing with a publicly declared standard.

The central question presented by these appeals is therefore whether the guidelines "promulgated"[115] by the Court of Criminal Appeal in the appellants' case (presumably with some relevance to its disposition) were unlawful when measured against the applicable principles of the common law, the powers of that Court, and the legislation which that Court was bound to apply in disposing of appeals before it. The appeals also raise a more fundamental question as to whether such guidelines were compatible with the requirements of the Constitution.

The facts surrounding the conviction and sentencing of Tak Fat Wong and Jackie Kai Chu Leung ("the appellants") for being knowingly concerned in the importation of a prohibited import, namely heroin, contrary to s 233B of the Customs Act 1901 (Cth), are set out elsewhere[116].

The Court of Criminal Appeal (like the District Court of New South Wales in which the appellants were tried, found guilty and convicted) was exercising federal jurisdiction[117]. Jurisdiction in relation to offences against laws of the Commonwealth was conferred by s 68 of the Judiciary Act 1903 (Cth), which picked up and applied to the trials of the appellants, State laws not inconsistent with federal law[118] to the extent that such laws were applicable[119]. The jurisdiction and powers of the Court of Criminal Appeal had been invoked by the Commonwealth Director of Public Prosecutions ("the DPP"), relevantly in a prosecution appeal against the alleged inadequacy of the sentences imposed by the sentencing judge. The DPP was empowered to bring such an appeal and the Court of Criminal Appeal, in accordance with s 5D of the Criminal Appeal Act 1912 (NSW), had the power to determine it[120].

It was not suggested, either below or in this Court, that any specific error on the part of the sentencing judge had been demonstrated. The sole common ground of appeal to the Court of Criminal Appeal relied on by the DPP was that the sentences imposed were, in each case, "manifestly inadequate". The DPP requested a "guideline judgment". In support of this submission, the DPP pointed to differences of view in the New South Wales Court of Criminal Appeal[121] and as between like courts in different States[122]. It was such differences that, in Blanco[123], led to a suggestion that the Court of Criminal Appeal should reconsider the matter "by way of a guideline judgment". The DPP took the hint and submitted that this matter afforded an appropriate vehicle for that purpose.

The DPP tendered a considerable amount of statistical, graphical and analytical material in support of the request for a guideline judgment and the submissions as to what the guidelines should be[124]. In the Court of Criminal Appeal, the appellants objected to the course that the DPP advocated. They did not provide evidence or submissions of their own on the alleged patterns and trends in sentencing persons convicted of the applicable offence. In the nature of things, such materials would not have been so readily available to the appellants[125], or those representing them, as to the DPP and the Court itself.

It was not contested that the appellants were "major participants"[126] in the offences for which they had been convicted, rather than couriers or other low-level participants. This fact caused Simpson J to dissent from the suitability of the prosecution appeals to afford the occasion to formulate guidelines addressed mainly to the problem of sentencing low-level offenders, in respect of whom the main disparities of sentencing had occurred[127]. Nevertheless, the majority agreed with Spigelman CJ[128] that the guidelines should be provided[129].

The appellant Jackie Leung sought special leave to appeal to this Court against his conviction. That application was dismissed[130]. It is in this way that the only issues before this Court are those raised in the challenge to the guideline judgment of, and substituted sentences imposed by, the Court of Criminal Appeal. In each case, that Court upheld the prosecution appeal. It set aside the sentences imposed by the trial judge. It increased the head sentence and non-parole period of the sentences in each case by an additional two years[131].

The grounds relied on by each appellant in this Court raised many of the same issues as those canvassed below. For the prosecution, the system of guideline judgments was an "interesting innovation to the criminal process" permissible by the common law, consistent with the applicable legislation and compatible with the Constitution. But for the appellants it was none of these things. In light of the grounds of appeal, the following issues arise for determination:

(1) Did the Court of Criminal Appeal err in applying a "two-stage approach" to the sentencing of the appellants?

(2) Did it err by disturbing the sentences imposed by the trial judge without identifying any error to warrant such disturbance?

(3) Did it err in failing to approach the appeals with the appropriate restraint required in the case of prosecution appeals?

(4) Did it err in failing to give reasons, or adequate reasons, for proceeding from the "guidelines" propounded to disturb the sentences imposed on the appellants?

(5) Having regard to the applicable federal legislation, did the Court of Criminal Appeal err in "promulgating" and applying guidelines, necessarily applicable in only one State?

(6) Did it err in effectively substituting identified tiers of punishment for those expressly enacted by the Parliament?

(7) Did it err in purporting effectively to require the exercise of the judicial discretion to sentence the appellants in ways different from, and inconsistent with, such legislation?

(8) Was the "promulgation" of guidelines by the Court of Criminal Appeal an act legislative in character, incompatible with the exercise by a court vested with federal jurisdiction and with the judicial power of the Commonwealth?

(9) Was the "promulgation" of guidelines and application of them to the sentences of the appellants incompatible with the disposition by a State court exercising federal jurisdiction of a "matter" within the meaning of Ch III of the Constitution?

(10) Were the guidelines a discriminatory law contrary to s 117 of the Constitution?

"Two-stage" approach to sentencing: It is possible to deal briefly with a number of objections concerning the judgment and reasoning of the Court of Criminal Appeal. I mention the first of the suggested errors only because it is referred to in the joint reasons in this Court[132]. It concerns the alleged error of approach, described as the "two-stage" or "two-tiered" approach, said to have been adopted by the Court of Criminal Appeal in this case. This controversy was first mentioned in AB v The Queen[133], although McHugh J and Hayne J, in separately expressing their disagreement with a delineation of the stages of sentencing, were there in dissent.

The question of whether sentencing should return to the so-called "instinctive" or "intuitive" synthesis approach is a very large one[134]. The debate about it should be reserved to an appeal where an answer is essential. Recent decisions of this Court[135] have been interpreted[136], correctly in my opinion, as requiring greater disclosure by sentencing judges of the way in which they actually arrive at the sentence imposed on a person convicted of an offence. The final sentence will normally include elements of judgment and intuition. But in my view, it cannot be denied that adjustments are made to a prima facie level with which the sentencing judge begins the task. How can one even begin to think of "discounts", for example, without at least conceiving the integer which is the subject of the discount? The ultimate product is no more scientifically demonstrable than a judgment for damages for personal injuries[137]. But it would be a retrograde step to subsume the adjustments which the law requires to be taken into account in sentencing by a "return to unexplained judicial intuition"[138]. Greater transparency and honesty are the hallmarks of modern public administration and the administration of justice. In sentencing, we should not turn our backs on these advances.

It follows that, whilst, in my view no error of approach has been demonstrated in this respect, these appeals do not present a proper occasion to explore any supposed error of such a kind. It was not one identified amongst the complaints in the submissions of the appellants. On the contrary, the approach which the appellants said that the Court of Criminal Appeal should have taken postulated the observance of identified stages in what was to be done both by the sentencing judge and the Court of Criminal Appeal.

Express finding of error: There is more substance in the appellants' complaint that the Court of Criminal Appeal erred by failing to identify clearly the error on the part of the trial judge that authorised its disturbance of their sentences. This Court has repeatedly emphasised that[139]:

"According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal."

In a number of recent decisions, this Court has set aside orders of courts of criminal appeal where the reasons supporting disturbance of the original sentence, and substitution of a different sentence, have not sufficiently, or at all, identified the error said to justify that course[140]. The same principle is applied in civil appeals[141]. It was applicable here. The appellants argued that the Court of Criminal Appeal had been so influenced by a desire to establish guidelines that it had wrongly failed to discharge the function imposed on it by s 5D of the Criminal Appeal Act. Relevantly, this was only to determine the prosecution appeals against their sentences.

The DPP contested this argument. Both by reference to the issue that was before the Court of Criminal Appeal, that Court's reasons and its resulting judgment and sentence, the DPP submitted that the error of the sentencing judge was the imposition on the appellants of manifestly inadequate sentences.

Ultimately, I have concluded that the appellants' submission on this point should be rejected. This is not (as it was said to be) a case like Lowndes v The Queen[142]. Although the error relied upon to authorise its interference was not expressly specified by the Court of Criminal Appeal, no particular form of words is mandatory. It is enough that the reasons of the appellate court should indicate adequately a correct application of the applicable principles. The reasons in the present matters expressly reject demonstration of specific error on the part of the sentencing judge[143]. Correctly, they identify the issue for decision as being "whether the sentences themselves are manifestly inadequate, either in the head sentence or the non-parole period"[144]. The conclusion is stated that the sentences imposed were "manifestly inadequate"[145]. All that is missing are the words "and that amounts to an error requiring that the appeal be upheld". In this case, those words can be implied both from what precedes and follows the cited passage.

The DPP submitted that this conclusion was sufficient to dispose of both appeals. It was pointed out that appeals lie to this Court from the judgment and order of the Court of Criminal Appeal, not from that Court's reasons. This Court, it was argued, should not disturb the resulting judgment and sentences, which responded to the manifest inadequacy of the appellants' sentences because dicta were included in the reasoning of the Court of Criminal Appeal with which this Court disagreed. I disagree. Having regard to the reasons given by that Court and the process by which it reached its conclusions, it is impossible to ignore the appellants' complaint that the resulting judgment and sentences were flawed because founded on an imperfect, or legally impermissible, process of reasoning. Although the judges below declared the guidelines which they formulated were not applicable to the cases of the appellants, it defies reason to say that they were totally irrelevant. Why include them in the appeals if that were so? Obviously, they set a relevant and higher benchmark of punishment. It should not be supposed that their inclusion in the reasons of the Court of Criminal Appeal was totally irrelevant to that Court's process of decision-making. At the very least the guidelines distracted the Court from a full consideration of all of the matters, statutory and otherwise, that would ordinarily have been given weight. To read the reasons of the Court of Criminal Appeal without the guidelines is like reading Hamlet without the Prince.

Approach to prosecution appeals: The third point of general principle raised by the appellants involved a complaint that the Court of Criminal Appeal had failed to take into account the consideration of restraint conventionally observed in prosecution appeals. There is nothing in s 5D of the Criminal Appeal Act that dictates an approach of particular restraint to prosecution appeals. However, that approach has existed in this country for decades. Section 5D was enacted in 1924[146]. A long line of judicial authority has since established the conventional way in which prosecution appeals against sentence are approached. Where specific error of sentencing principle is not demonstrated and the complaint is one of manifest inadequacy of the sentence, it is only where it is shown that the "sentence is definitely outside the appropriate range that [a court] is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence"[147].

Although under s 5D leave to appeal against sentence is not required by the prosecution[148], the principle of restraint in allowing prosecution appeals against sentence is well entrenched. It has sometimes been explained by reference to the species of "double jeopardy" that a prisoner uniquely faces in such an appeal[149]. Whilst the facility of prosecution appeals is afforded to contribute to the desirable aim of consistency in sentencing[150], it is normal to require a clear or definite case of demonstrated appellable error before a prosecution appeal is upheld by a court of criminal appeal. No submission was made in these appeals challenging that approach or even calling it into question[151].

It is true that the reasons of the Court of Criminal Appeal do not set out, or refer to, the rule of restraint in prosecution appeals before proceeding to the actual conclusion that the sentences imposed on the appellants were "manifestly inadequate" and such as warranted orders setting them aside and substituting new sentences in their place. However, it is also true that, in proceeding to devise the substitute sentences, the reasons allude to the normal approach of restraint. There was repeated reference in the reasons to the fact that the appeal before the Court was a "Crown appeal"[152] and that this enlivened particular "discretionary considerations"[153]. Although the considerations mentioned were confined to those of delay on the part of the prosecution in bringing the appeals[154], inherent in the general remarks and the approach to that point was acceptance of the special burden facing re-sentencing (with the risk of an increased custodial sentence) which informs the principle of restraint observed in dealing with prosecution appeals against sentence. The fact that "the principle of double jeopardy"[155] was expressly mentioned in calculating the substitute sentences also indicates that that consideration was in the mind of the Court of Criminal Appeal. It is reasonable to infer that, although not so stated, it was a consideration taken into account in deciding that appellable error had been shown. Not without hesitation, therefore, I would also reject this complaint.

Provision of adequate reasons: The appellants then complained that the reasons of the Court of Criminal Appeal by which it had proceeded from the guidelines stated to the conclusions in their particular matters were inadequate as failing to disclose the train of reasoning that justified setting aside the sentences initially imposed on them. Put bluntly, the appellants submitted that the conclusions in the reasons of the Court of Criminal Appeal (and the judgment and sentences which it substituted) were not supported either by the guidelines themselves or by the discussion sustaining those guidelines. Instead, the appellants said, most of the reasoning of the Court of Criminal Appeal was concerned with controversies that had arisen about the sentences appropriate to a "courier", "possessor" and "minder"[156] of drugs, descriptions which, on no view, applied to the appellants. Their parts in the offences of which they had been convicted were concededly "major"[157].

The appellants argued that by addressing so much attention to "couriers and others involved at a low level in the hierarchy of an importing organisation"[158], the Court of Criminal Appeal had taken into account irrelevant considerations as preliminary to the only true legal issue before it, namely whether to allow the prosecution appeal in their particular cases; if so, whether to increase their sentences and, if so, to what extent. Indeed, the Court of Criminal Appeal itself had said that nothing in the materials presented to the Court, or in the experience of the judges, suggested any systemic inadequacy in sentencing patterns of trial judges "with respect to the offence under consideration"[159].

The appellants contrasted the detail which, they said, was lavished on the "existing sentencing patterns [which] is intended to apply to couriers and persons low in the hierarchy of the importing organisation"[160] and the peremptory disposal of the prosecution appeals in their cases, once immaterial grounds had been eliminated. According to the appellants the actual disposition of their appeals amounted to no more than a statement of a conclusion that the sentences imposed by the trial judge "were lower than the least sentence that could properly have been imposed in each case"[161]. The link between that conclusion and the elaborated guidelines was left to an undisclosed premise of reasoning. Presumably this was that, if for "couriers and persons low in the hierarchy of the importing organisation" the range of sentences in the case (as here) of a "[s]ubstantial commercial quantity (3.5 kilograms - 10 kilograms)" was "10 to 15 years"[162], the range for persons still higher in the hierarchy of the importing organisation (such as the appellants) had to be commensurately greater, but to an undisclosed degree.

There is merit in this complaint. The DPP argued that the missing premise was obvious as was the inadequacy of the sentences imposed on the appellants as a matter of impression. In so far as the Court of Criminal Appeal's reasoning about "low-level participants" was immaterial to the appellants' cases, the DPP ultimately suggested that it amounted to no more than harmless obiter dicta. This had not undermined the correctness of the final conclusion reached and the orders made.

In the context of judicial review of a decision of an administrative tribunal, this Court has said that "at common law ... want of logic is not synonymous with error of law"[163]. However, in the case of a court, within the integrated Australian judicature, which takes the serious step of setting aside sentences imposed by a judge with the primary responsibility for imposing the sentence, and then increases the sentences substantially, "the channels of logic"[164] should normally be displayed so the persons affected, a court to which appeal may lie and the community are aware of the essential chain of reasoning that brought about the judgment and warranted alteration of the sentence that was imposed.

Again with hesitation, I will assume that it is possible to add flesh to the bare bones of the final step by which the actual judgment affecting the appellants was arrived at in the Court of Criminal Appeal. In all truth, this requires a leap of logic from the table in the guidelines to the appellants' actual cases which fell outside that table. I shall make this leap because the appellants have still more substantial arguments to advance under the applicable legislation and the Constitution, to which I now turn.

Guidelines for a single State: The appellants were convicted of federal offences applicable throughout the Commonwealth. In the nature of international transport into Australia, a large number of those charged with such offences are tried and, where convicted, sentenced in New South Wales courts. However, the legislation creating the substantive offence[165], the legislation establishing general principles of sentencing to be observed in such cases[166] and the legislation rendering such federal laws applicable in State courts exercising federal jurisdiction[167] are all federal, enacted on the postulate that they will operate uniformly in all parts of the nation[168].

The jurisdiction of the Court of Criminal Appeal to hear and dispose of the prosecution appeals in the appellants' cases was not contested. It was engaged by the DPP's action in lodging the appeals. But a question is raised concerning the power of that Court to determine such appeals in accordance with, or by reference to such guidelines as were "promulgated" in this case. In part, that question is presented for decision because of the assumptions said to be inherent in, if not expressed by, the federal legislation under which the Court of Criminal Appeal derived its authority over the appellants. A number of the appellants' objections on this basis must be considered.

The first is that it was incompatible with the uniform application of the federal legislation to contemplate detailed guidelines in one State which would not, of their own authority, apply in other States (and Territories) of the Commonwealth. In proof of this proposition, it was suggested that it would be foolish to contemplate eight or more different sets of guidelines. That would contradict the provisions of, and assumptions in, the federal legislation, if not of the Constitution itself[169].

In support of the proposition that such guidelines were impermissible in the case of federal legislation, the appellants relied upon the reservations expressed in the Victorian Court of Appeal. In R v Ngui[170], Winneke P referred to the particular importance "where the offences are created by Commonwealth statutes" of achieving consistency to the extent possible because "sentences for such offences are being imposed by courts throughout Australia". Moreover, the Court of Criminal Appeal of Western Australia declined to follow the guidelines established by the New South Wales Court of Criminal Appeal[171]. The inevitable result is disparity, and not uniformity, in the sentencing of federal offenders.

The appellants accepted that some disparity was inherent in the assumption upon which the federal laws were written, namely that sentencing judges, for the most part in State courts, would enjoy a discretion, appropriate to the particular case, subject only to the maximum sentences fixed by the Federal Parliament and review for error by courts of criminal appeal. But beyond such disparity, the appellants submitted, it was outside the powers of the New South Wales Court of Criminal Appeal to press ahead with guidelines such as those "promulgated" for a federal offence in one State alone. That Court's sole function, postulated by federal law, was to determine, in the exercise of federal jurisdiction, any appeal brought to it. To attempt more conflicted with the assumptions inherent in the applicable federal laws and should therefore not have occurred. Standards emerging over time from the determination of a number of cases were one thing. But "guidelines" which were purportedly "promulgated" to apply to all current and future cases were quite another.

This argument also has merit. However, had it stood alone, I would not have disturbed the judgment and sentence of the Court of Criminal Appeal on this ground. If, for example, applicable guidelines, otherwise valid, were exposed in one State to provide an explicit principle to justify the judgment and sentence of a court of criminal appeal in that State, it could, if compatible with the law and properly used, contribute to the attainment of uniformity and consistency. As Winneke P remarked in R v Ngui[172], if the guidelines were used as no more than a "sounding board" or a "check" against the exercise of the sentencing judge's discretion, this alone would not be incompatible with the assumptions of the federal legislation. Such legislation is enacted for operation in a country in which virtually all serious federal crimes, of the kind here in question, are tried in State courts exercising federal jurisdiction. It is inherent in this arrangement (and contemplated by the Constitution) that such courts will discharge their functions individually. Their judgments and orders are subject to appeal, ultimately to this Court[173]. They are enjoined by this Court to avoid needless disparities in the interpretation and application of federal law[174]. In the event of a difference of opinion as to a principle applicable to the exercise of federal jurisdiction (called in a particular State a guideline) it would be possible for this Court to eliminate any such differences. In a particular case, any principle which this Court stated could modify or overrule a principle called a "guideline" with which it disagreed. Even if not formally part of the "judgments", "orders", or "sentences" appealed from[175], this Court could make its disagreement known and in practice that would normally suffice.

The appellants' rejoinder to this argument was that, in disposing of such an appeal, this Court would necessarily confine itself to correcting any part of a "guideline" incompatible with the principles applicable to the particular case and nothing more. This would leave the other parts of the "guideline" uncorrected by the appellate process. I shall return to this problem in addressing the appellants' constitutional objections. For the moment, it is enough to say that, in my view, none of the statutes applicable to the appellants' matters necessarily excluded experimentation by courts of criminal appeal in the way they reasoned to conclusions in particular cases. There is no magic in the appellation "guideline judgment". In Australia, it is not at all uncommon for courts, responding to issues before them, to express applicable principles in a statement placed within a broader context addressed to a wider range of issues. I agree with Gleeson CJ that communicating collective experience is an important responsibility of courts of criminal appeal[176]. If that had been all that the "guideline judgment" in the present case had involved, it would not have warranted disturbance of the judgment and sentences under appeal, unless, for other reasons, they were shown to be erroneous.

Non-statutory sentencing tiers: The second objection of the appellants based on the federal legislation was that the Court of Criminal Appeal's guidelines represented additional judicial sub-categories of punishment by reference to the quantity of the drug in question superimposed upon those contained in the federal legislation. Contrasting the sub-categories introduced by the guidelines[177] with those set out in Sched VI of the Customs Act (which gives effect to the distinction expressed in s 235 between a "trafficable quantity" and a "commercial quantity"), the appellants submitted that the legislative scheme was so specific, and particular to the weight of the narcotic substance, that it excluded the judicial creation of further sub-categories of offence. For example, as the Court of Criminal Appeal recognised, the trafficable quantity for cocaine commences at 2.0 grams and the commercial quantity at 2.0 kilograms. In the case of heroin, the trafficable quantity also commences at 2.0 grams but the commercial quantity commences at 1.5 kilograms.

In Cheng v The Queen[178] (coincidentally disposing of an appeal concerning offenders who participated in South Australia in the importation in respect of which the present appellants were convicted in New South Wales) the majority of this Court concluded that the terms of the Customs Act do not posit a state of knowledge on the part of the offender, one way or the other, as to the quantity of the narcotic substances actually imported. That quantity is an objective fact, fixed by reference to the evidence. The crime that was committed is determined in this way[179]. I took a different view, having regard to the opinion which I hold concerning the requirements of s 80 of the Constitution [180]. However, the holding of the Court emphasises the objective categorisation of the offence in the legislation as enacted.

Once the offence is so established, the Customs Act leaves it to the sentencing judge to fix the sentence applicable to the particular case by reference to a maximum punishment attaching to the applicable quantity. The individual features of the offence and the particular matters relevant to the offender are then, within the limits fixed by very large maximum penalties, left, by the scheme of the legislation, to the judge. In the case (as here) of a "commercial quantity", the maximum penalty contemplated by law is "imprisonment for life or for such period as the Court thinks appropriate"[181]. That formula, and the inclusion of the highest penalty known to the law in Australia, emphasises the purposeful provision to the court sentencing the appellants of a discretion wide enough to permit the wide variety of considerations applicable to the offence and to the offender to be taken into account.

There is authority in the Supreme Court of Canada in R v McDonnell[182] that lends support to the appellants' submissions in this regard. There it was held that there was "no legal basis for the judicial creation of a category of offence within a statutory offence for the purposes of sentencing ... [I]t is not for judges to create criminal offences, but rather for the legislature to enact such offences." The Supreme Court of Canada disapproved of the creation by the Alberta Court of Appeal of what it regarded as effectively a new and different offence of "major sexual assault". This was held to be incompatible with the scheme of the Canadian Criminal Code. A minority dissented[183]. They held that the categories of major and minor sexual assaults merely represented the "starting point" approach and constituted a variation on traditional concepts of ranges of sentences for particular types of criminal acts.

It is by no means unusual for appellate courts to identify recurring features of typical cases as amounting to circumstances aggravating[184] or mitigating[185] sentence. If that had been all that the guidelines "promulgated" in the present case had done I would, with the minority in McDonnell, have regarded it as no more than an expression of a relevant consideration and not a judicially created sub-set of offences unauthorised by the legislature. After all, one could scarcely deny that the quantity of an illegal drug will usually be relevant to culpability. Commonly, it will be connected with the damage that may be done to the number of persons who use the drug, the reward to the importer and the size of the chain of supply and distribution. Quantity is not, therefore, irrelevant to punishment. However, as I read the guidelines, they go well beyond a reference to this factor as relevant to the sentencing task. The guidelines purport to identify precise sub-classifications of the offences provided by the Parliament, and to do so by including highly specific categories determined by reference only to the quantity of the substance involved. To that extent, I consider that it imposed on the statutory scheme a gloss that went beyond permissible judicial elaboration. To the extent that it displayed an approach that influenced to whatever degree the response to the appellants' sentences, it was erroneous.

The introduction of sub-classifications of the statutory offence, by reference to quantity alone, is incompatible with the scheme devised by the Parliament. That scheme contemplated that, within the boundaries it had set, a general judicial discretion would remain. To reduce that discretion rigidly by the superimposition of sub-categories identified by reference only to quantity, is impermissibly to alter the design enacted by the Parliament. Having regard to what follows, this conclusion is not avoided, as the Court of Criminal Appeal thought, by referring to the fact that the guidelines were "indicative only"[186]. Numerous passages in the reasons of that Court (given emphasis by the minority opinion of Simpson J) make it clear that "following the promulgation of a guideline, it is to be expected, and indeed is intended, that sentencing courts will, generally speaking, adhere to the range of sentences promulgated as appropriate"[187]. In practical terms, that would necessarily be so and was intended to be so.

Accordingly, the "guidelines" stated in these matters were inconsistent with the federal legislation applicable to the offences. To the extent, as it must be inferred, that the "guidelines" affected the approach and conclusion, judgment and sentences of the Court of Criminal Appeal, the orders of that Court were erroneous. No statement of sentencing principle, whether called a "guideline" or otherwise, may be inconsistent with federal legislation applicable to the case. This argument of the appellants must therefore be upheld.

Individualised statutory discretion: The appellants have also made good a second objection, based on the applicable federal legislation. It was likewise rejected by the Court of Criminal Appeal[188]. This is that the language and purpose of the applicable legislation assumes the exercise by the sentencing judge, as by an appellate court considering an appeal against sentence, of an individualised discretion. This is one that takes into account all of the circumstances relevant to the offence and the offender and cannot be constrained by judge-made considerations defined in terms of particular outcomes referable to specific weights of narcotic substances not expressed in the legislation itself.

In part, this argument depended on the express requirement imposed on the judge sentencing the appellants to conform to the requirements of s 16A of the Crimes Act 1914 (Cth)[189]. That section expresses a number of matters to which a court must have regard when passing sentence on a person convicted of a federal offence. Necessarily, in any appeal against a sentence so imposed, the same considerations must apply in the appellate court. The terms of the section are clearly stated on the hypothesis that the judges concerned in the determination, and review, of such a sentence must perform their functions imposing an individual sentence "that is of a severity appropriate in all the circumstances of the offence"[190].

There follows, in s 16A(2) of the Crimes Act, a list of matters particular to the offence and the offender involved. To superimpose upon that list highly specific requirements expressed in terms of anticipated outcomes defined by reference only to the weight of narcotic substances cuts across the scheme of the individualised and complex assessment of relevant considerations contemplated by s 16A(2). This inconsistency is specially objectionable because of the holding that the overall parameters of the offence in question are defined by reference to the objective quantity of the drug imported. Within the maximum limits of punishment set by the definition of the offence in that way, the Parliament intended matters of aggravation and mitigation to be particular to the offence and the offender. Those considerations were not subject to additional rigidities caused by the highly particular and unique reference in the guidelines to the quantity of the narcotic substance in question.

It is true that s 16A(2) of the Crimes Act begins with an acknowledgment that "any other matters", in addition to those listed may be taken into account by the court concerned in the sentence of a convicted federal offender. It is in this way that the consideration of general deterrence has been given weight, although it is not mentioned in the list[191]. But the common feature of the list, as of the substantive offences provided in the Customs Act, is that a sentence will be imposed which addresses all the individual circumstances of the offence and the offender. That is not the hypothesis upon which the "guideline judgment" under consideration is drawn. The guidelines contemplate a result or outcome derived not from multiple factors but only from a single identified factor, namely the weight of the narcotic substance in question. To elevate that consideration (which would otherwise be given appropriate attention but as one only of the many considerations relevant to sentencing[192]) to such a position of primacy is to distort the command of the Parliament governing the approach to sentencing of convicted federal offenders which was binding on the sentencing judge and the Court of Criminal Appeal.

Because it was incompatible with the federal legislation creating the offence, and with the sentencing legislation enacted by the Parliament[193], the Court of Criminal Appeal, in exercising federal jurisdiction over the appellants pursuant to s 5D of the Criminal Appeal Act[194] had no power to proceed in the contrary manner that it did.

This Court has held that, in encouraging the consistent exercise of discretionary decision, it is permissible for appellate courts to express guidelines[195]. I fully agree with that principle. I also support the notion that publicly available guidelines, in the sense of relevant factors declared by an appellate court, are to be preferred to undisclosed or secret "tariffs" or rules of thumb that are not so readily susceptible to debate in public, including in a court which has relevant sentencing responsibilities and powers. However, despite the statement that the guidelines in the present case were not meant to be "binding in any formal sense"[196], the mollifying words must be read with others that make the obvious point that sentences outside the range promulgated would "attract the close scrutiny" of the Court of Criminal Appeal[197]. As the joint reasons in this Court point out, the guidelines were intended to have a prescriptive effect[198].

The central problem in this case is therefore that the guidelines were so highly specific. They referred only to one of the relevant considerations (weight). Moreover, as a matter of practicality, they were expressed in terms prone to coerce those with the responsibility of sentencing to attribute to the stated factor a disproportionate importance in order to achieve a result that is, in turn, largely based on analysis of past instances. Being so based, the result is only as sound as the instances of previous sentencing from which it is derived. These were not particularly numerous. And they were provided by isolating one consideration (weight of the narcotic substance) from the multitude of unidentified considerations which the sentencing judges concerned took into account in the cases used as the source of the sample.

In these circumstances, what is provided is not the kind of permissible "guideline" of referable principle, contemplated by this Court's decisions on appellate guidelines[199]. It is, instead, the provision of an effective rule likely, and even intended, to harness judicial discretions in a way prone to attribute excessive importance to the consideration of weight of the substance at the cost of all other considerations that a judicial discretion would normally address.

The appellants are therefore entitled to succeed on their second objection based on the federal legislation applicable to their cases. Having regard to such legislation, the guidelines which the Court of Criminal Appeal "promulgated" could have no application to federal offenders such as the appellants. To the extent that it must be inferred that the Court of Criminal Appeal reached its conclusions about the sentences imposed on the appellants (and the sentences which that Court then felt it necessary to impose in substitution) by reference to the guidelines, the appeal from the judgment and sentences of the Court of Criminal Appeal must succeed.

A legislative function? The foregoing is sufficient to dispose of the appeals. However, because the appellants raised even more fundamental objections of a constitutional character to the course adopted by the Court of Criminal Appeal it is appropriate to mention those objections briefly because, on one view, they represent an even more basic defect, at least in the case of federal offences, forbidding "guideline judgments" of the kind attempted here.

The appellants contended that the "promulgation", as the Court of Criminal Appeal itself described its action, of "guidelines" was incompatible with the exercise of judicial power contemplated by the Constitution. This was because it amounted to the establishment of a new legal norm, having a legal effect wider than was necessary to determine only the controversy before the court, expressed in language which was prescriptive and prospective for all current and future cases and, moreover, with an effect that would bind persons who had been afforded no opportunity to make submissions relevant to the new norm.

The appellants argued that, subject to the Constitution, the Parliament might establish such universal criteria; but a court exercising the judicial power of the Commonwealth could not do so. They submitted that the vice inherent in such "promulgations" was made plain by the fact that the guidelines in question were devised only to apply to "couriers and persons low in the hierarchy of the importing organisation"[200]. It was only linked to them by an unexpressed leap of reasoning.

There is force in this submission. But much will depend upon the way in which "guidelines", so-called, are expressed and the manner in which they are used[201]. If they were merely a "sounding board" or "check" against the exercise of a sentencing discretion, so as to bring greater consistency to that exercise, they would not be incompatible with the performance of judicial functions. Similarly, just because of the language used ("promulgation"), the treatment of considerations irrelevant to the particular case or suggested illogicality of reasoning, a court would not necessarily go beyond its judicial functions. Sometimes, in expressing a binding rule for the case before it, a court may go into elaboration thought useful to provide a conceptual context although not strictly necessary to deciding the case in hand. If, for example, the Court of Criminal Appeal had cited statistical and historical material and decisional analysis to describe relevant ranges of punishment by reference to multiple factors and what had occurred in the past, no offence to the exercise of judicial power would have been committed. The fact that so many judges in different jurisdictions have sought to promote greater consistency in sentencing by the use of what they have called "guidelines" is a reason for this Court to exercise caution before condemning the innovation as incompatible with judicial functions under the Australian Constitution. In most of the overseas jurisdictions mentioned[202], the constraints of a federal constitution are missing. But, just as the functions of the other branches of government vary over time so, in my view, those of the Judicature may do so, within limits, in order to fulfil the role contemplated of the courts by Ch III of the Constitution [203]. Innovation is not, as such, incompatible with the exercise of constitutional power, including federal judicial power.

Necessity of a "matter": A second way in which the appellants mounted their constitutional attack on the guidelines "promulgated" in their cases arose from their suggestion that such a statement of rules, applicable to circumstances extraneous to the litigation, was incompatible with the nature of the judicial power referred to in Ch III of the Constitution. The common feature of the jurisdiction so conferred upon this Court in its original jurisdiction[204], upon other federal courts[205] and upon State courts invested with federal jurisdiction[206], is the requirement that there be a "matter". Exactly what is contemplated by the requirement of a "matter" is elusive[207]. There must be involved in the legal proceeding in question, a subject apt for determination by a court by reference to some "immediate right, duty or liability" susceptible of judicial determination[208]. This has been the basis of this Court's rejection of the conferral of jurisdiction and powers to provide advisory opinions[209] or a decision upon abstract questions divorced from the actual administration of the law[210]. The appellants submitted that "guideline judgments", to the extent that they assumed a function of laying down rules intended to be applied in future and current cases of differing but specified facts, partake of the character of advisory opinions or the determination of abstract questions. Such judgments were divorced from the limited but important function assigned to the Judicature by the Constitution, which is only the exercise of jurisdiction over a particular "matter".

Once again, it is not necessary in this case to determine this argument. Clearly, the Constitution envisages the performance by State courts of appellate functions, including when exercising federal jurisdiction. These have traditionally involved the identification and formulation of general principles as ancillary to the disposal of the particular case before the court[211]. The binding rule of a decision is limited by the issues that were in contest between the parties and the way in which those issues were decided by the [majority of the] court[212]. But it is not at all unusual, in achieving the orderly application and development of the law, for appellate courts, including this Court[213], to identify the applicable principles in terms that go beyond the strict requirements of the dispute between the parties. Doing this, in a way that affords general principles for use in other current or future cases not before the court, does not necessarily take the court concerned outside its jurisdiction in a "matter". That this is so, can be seen in many instances where this Court has, in the context of a particular case, propounded broad principles[214] or condoned judicial guidelines as compatible with law[215].

It is unnecessary to decide whether the guidelines that were "promulgated" in the present case went beyond the constitutional jurisdiction afforded to the Court of Criminal Appeal over the "matters" concerning the appellants. But it is obvious that, to the extent that such guidelines deal with considerations wholly extraneous to the decision in a particular "matter" they run the risk of passing beyond obiter dicta to the impermissible resolution of other, future or theoretical "matters" beyond those actually before the Court and divorced from the administration of the law in a particular matter. Much depends upon the way in which so-called "guidelines" are expressed and the manner in which they are used. At least in federal jurisdiction, there is a constitutional boundary; and it must not be passed.

Discriminatory laws: The appellants are both Chinese nationals. Neither of them is, within s 117 of the Constitution, a "subject of the Queen", or Australian citizen. The implications of s 117 for the differential treatment of residents of different States of the Commonwealth, possibly involved in the application to them in one State alone of guidelines expressed by particular reference to the differentiated weight of imported goods, is not therefore raised for decision in these appeals[216]. Like the other constitutional points, it can be left to another day.

I would therefore confine my conclusion in these appeals to the opinion that the guidelines formulated by the Court of Criminal Appeal, and inferentially used as a benchmark from which to derive an outcome affecting the appellants, were incompatible with the terms of the federal legislation applicable to their cases. The question whether other guidelines could be formulated consistently with the federal legislation and with the Constitution does not need to be answered. In accordance with the orthodox approach to constitutional adjudication, the arguments based on the common law and statute should be dealt with first[217]. As often happens, when this is done in the present case the specific answers to the constitutional questions can be postponed.

I agree in the orders proposed in the joint reasons.

CALLINAN J. These appeals were heard together. They raise the same questions: whether the Court of Criminal Appeal of New South Wales erred, in increasing the sentences imposed upon the appellants by the trial judge; and, whether that error was caused by, or perhaps may be discerned from, the lengthy discourse about, and statement of, the sentencing guidelines in the Court's reasons for judgment, albeit that the Court held that the guidelines had no application to these appellants. It is relevant to notice at the outset that because the appellants were charged with offences under s 233B(1)(d) of the Customs Act 1901 (Cth) ("the Act"), the courts below were, in dealing with the appellants, exercising federal jurisdiction.

On 8 November 1997 the appellants were arrested in Sydney and charged with being knowingly concerned in the importation of a "commercial"[218] quantity of heroin in contravention of s 233B of the Act. On 7 September 1998 the appellants were convicted by a jury in the District Court of New South Wales. On 18 December 1998, each was sentenced by the trial judge, Davidson DCJ, to a term of 12 years imprisonment with a non-parole period of seven years, dating from 8 November 1997.

On 24 February 1999 the Acting Commonwealth Director of Public Prosecutions ("the Director") gave notice of intention to appeal against the sentences imposed on the appellants on the ground that they were manifestly inadequate. The appeals were listed for hearing before a Court of Criminal Appeal constituted by five judges, Spigelman CJ, Mason P, and Simpson, Sperling and Barr JJ because, before the hearing, the Director gave notice that he sought a "guideline judgment" in relation to offences under s 233B of the Act with respect to the importation of heroin.

In support of his submissions that there should be a guideline judgment, the Director submitted a comprehensive bundle of documentary material to the Court relating to the prevalence of offences under s 233B, approaches to sentencing adopted in other jurisdictions, and an analysis of sentences imposed for various contraventions of s 233B by New South Wales courts, and by other Australian State and Territory courts.

The Court of Criminal Appeal gave judgment on 16 December 1999. All members of it agreed with the judgment of the Chief Justice, subject to a reservation expressed by Simpson J[219], as to "the suitability of the cases presently before the Court to provide the foundation for a guideline judgment in relation to couriers and persons low in the hierarchy of an importing organisation".

Spigelman CJ accepted the submission of the Director that the case was an appropriate one in which to promulgate a guideline judgment. The guidelines were as follows[220]:

"The following guideline is intended to be non-binding in the sense explained in Jurisic[[221]] and Henry[[222]]. It has been determined primarily on the basis of existing sentencing patterns and is intended to apply to couriers and persons low in the hierarchy of the importing organisation.

* High range traffickable quantity - 7 to 10 years

* Substantial commercial quantity - 10 to 15 years

The Court of Criminal Appeal upheld the Director's appeal, quashed the sentences imposed on the appellants by the District Court, and substituted in each case a sentence of imprisonment for 14 years, with a non-parole period of nine years to commence from 8 November 1997.

The appellants' first submission was that it was an error on the part of the Court of Criminal Appeal to conclude that it had jurisdiction to promulgate a guideline judgment in the exercise of federal jurisdiction. It will not be necessary to deal with this submission if the appellants' alternative submission, to which I will go first, is correct.

The appellants' alternative submission is that, because the Court was "unable to discern any error of principle in the way Davidson DCJ approached the exercise of the sentencing discretion"[223], the Court should have proceeded in four stages: first, by establishing an appropriate "norm" by reference to the objective features of the offence; secondly, by determining whether there were circumstances which might properly justify departure from that "norm"; thirdly, by considering whether any departure in the sentences imposed by the trial judge demonstrated manifest inadequacy in their particular cases; and, fourthly, by considering whether, if such inadequacy were established, these were proper cases in which to interfere with the exercise of the sentencing judge's discretion.

The appellants' reliance, in respect of the alternative submission, on the facts and with regard to the alleged illegitimacy of the promulgation of the guidelines is limited because they do not contend that any of them were applied in their cases. They say that their formulation was, because of their prominence in, and effective domination of the contents of the judgment, a distraction from the real task upon which the Court was engaged, and must, therefore, have led the Court into irrelevancy and error.

As the appellants developed their alternative argument they refined it, to focus upon an absence, as they submitted, of any explanation, or sufficient explanation for the holding of the Court of Criminal Appeal that the sentences were manifestly excessive, a holding which was in these terms[224]:

"Wong and Leung were major participants in a very large importation. The head sentences of twelve years are, in my opinion, manifestly inadequate. On this basis, the sentencing discretion falls to be re-exercised by this Court."

On analysis I do not think that the submission is correct. It seems to me that the Court of Criminal Appeal did properly explain, if only briefly, why the sentences imposed were manifestly inadequate. The explanation was simply that the Court formed the opinion that it did because the sentencing judge failed to give due weight to the great quantity of the drug that had been imported. This appears from what Spigelman CJ said in the following passages which emphasise the significance of this matter[225]:

"This was a very large importation. The extent of human misery which would have been inflicted on our community if the shipment had been delivered, is immense. If the ultimate sentence is manifestly inadequate, it is likely to be because his Honour failed to give proper weight to the size of the importation.

In my opinion, on the basis of the facts as found by Davidson DCJ and the objective and subjective circumstances to which he referred, and taking into account the [sentencing] considerations in s16A, the sentences his Honour imposed were lower than the least sentence that could properly have been imposed in each case." (emphasis added)

What I have said is enough to dispose of this appeal, unless, contrary to what the Court of Criminal Appeal said (that the guidelines had no relevance to these appellants) the Court did in fact, in some way, treat them as relevant, or allowed itself to be influenced by them; and that the Court had no jurisdiction, or power to formulate or use guidelines in the exercise of federal jurisdiction.

It may well be that the Court of Criminal Appeal would have been better advised, as Simpson J suggested, if it wished (and could, within jurisdiction properly) to state guidelines, to await a different and more typical case, perhaps, than these. And, again, it might appear incongruous that so much time and thought have been expended on the formulation of guidelines in two cases which, in the end, do not call for their application. But the Court expressly held the guidelines to be irrelevant here. Accordingly, they were not invoked in, and it is not for this Court to hold that they were influential with respect to, the process of dealing with these two appellants. Whether the guidelines should have been formulated, or were or were not within the power or jurisdiction of the Court of Criminal Appeal, is not, therefore, to the point in these appeals which, in my opinion, should be dismissed.

All that I would say about the guidelines is this. I strongly doubt, without deciding, that the formulation and application of guidelines can be a proper exercise of the judicial power of the Commonwealth. They appear to have about them a legislative quality, not only in form but also as they speak prospectively. Despite the qualifications that their makers express, they also do have, and in practice will inevitably come to assume, in some circumstances, a prescriptive tone and operation. There is also the problem that in formulating guidelines the Court does not have the advantage of the presence of a contradictor. In any case in which a prosecutor seeks a statement of guidelines, the interest of the accused in whose case the application is made will usually be with respect to his or her penalty only, and he or she would be unlikely to wish to, or, indeed, even be able to make any useful contribution to a debate about all relevant aspects of the sentence sought.

Section 16A of the Crimes Act 1914 (Cth) provides as follows:

"(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(f) the degree to which the person has shown contrition for the offence;

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(g) if the person has pleaded guilty to the charge in respect of the offence - that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, cultural background, age, means and physical or mental condition of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

(3) Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order."

Even though the section is not an exhaustive catalogue of the considerations relevant to the imposition of penalties for federal offences, I strongly doubt whether the reference in s 16A(2) to "any other matters" may be taken to be intended to refer, or can be read, consistently with Ch III of the Constitution, as incorporating the concept of sentencing guidelines. I would not readily regard a guideline settled on another occasion as a proper matter for consideration in determining the penalty to be imposed upon an offender against federal law, although penalties for similar offences by other persons on other occasions almost certainly will be. Nonetheless, contrary to the submissions made by the Director, the difference between guideline judgments and judgments setting forth sentencing principles of a type which Courts of Criminal Appeal have delivered for almost a century is more than one of mere nomenclature. I say this because of my concern that guidelines do have a legislative flavour about them, and, because, by their very nature, they may detract from a proper consideration and application of the principles which the section requires be considered and applied in each case[226].

It is unnecessary to express any concluded opinion upon the validity of guidelines stated by courts in the exercise of jurisdiction which is not federal. There is now a legislative basis for them in New South Wales[227] and Western Australia[228]. The relevant New South Wales provision was not available in this case for the reasons stated by Gaudron, Gummow and Hayne JJ[229]. It is difficult to see, however, why a State legislature might not, as these States have, legislate for the promulgation of guidelines in relation to State offences, so long as it is understood that they are guidelines only, that is, at most, merely indicative starting points, not to be rigidly or mechanistically applied, and that the trial judge still has a real, judicial sentencing discretion to exercise of the kind discussed by this Court in House v The King[230].

[1] R v Wong; R v Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340.

[2] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 366.

[3] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 373.

[4] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 536 per Brennan J.

[5] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306 per McHugh J.

[7] [1994] HCA 49; (1994) 181 CLR 295 at 306.

[9] Chan Chi-ming v The Queen [1979] HKLR 491.

[11] Council of Europe, Recommendation No R (92) 17, Consistency of Sentencing (Strasbourg, 1993).

[12] [1998] NSWSC 423; (1998) 45 NSWLR 209. See also von Hirsch and Ashworth (eds), Principled Sentencing, Readings on Theory and Policy, 2nd ed (1998) at 212-239.

[13] R v McDonnell [1997] 1 SCR 948 at 989.

[16] Lawson, Wu & Thapa (1997) 98 A Crim R 463 at 465.

[17] Customs Act 1901 (Cth), s 233B. Schedule VI of that Act specifies the commercial quantity applicable to heroin as 1.5 kg.

[18] R v Wong; R v Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 (Spigelman CJ, Mason P, Simpson, Sperling and Barr JJ).

[19] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 372-373 [189]- [190].

[20] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 372 [190].

[21] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 366 [142].

[22] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 366 [142].

[23] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 368-369 [163].

[24] Radzinowicz and Hood, A History of English Criminal Law, (1986), vol 5, "The Emergence of Penal Policy" at 755-757; Thomas, Constraints on Judgment; The Search for Structured Discretion in Sentencing, 1860-1910, (1979) at 70-74.

[25] Mellifont v Attorney-General (Q) [1991] HCA 53; (1991) 173 CLR 289.

[26] [1998] NSWSC 423; (1998) 45 NSWLR 209.

[27] For example, R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; R v Thomson (2000) 49 NSWLR 383.

[31] Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), s 6, Sched 4.13, Item [4].

[32] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 343 [3].

[33] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 347 [22].

[34] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 349 [32].

[35] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 349 [32].

[36] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 363 [125].

[37] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 363 [126].

[38] See also [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 372 [190] per Simpson J.

[39] Peel v The Queen [1971] HCA 59; (1971) 125 CLR 447. See also Seaegg v The King [1932] HCA 47; (1932) 48 CLR 251; Williams v The King [No 1] [1933] HCA 54; (1933) 50 CLR 536; Williams v The King [No 2] [1934] HCA 19; (1934) 50 CLR 551; R v Williams; R v Somme (1934) 34 SR(NSW) 143.

[41] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 369 [163].

[42] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 346 [18].

[43] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 357 [76].

[44] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [140].

[45] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [140].

[46] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [141].

[47] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [141].

[48] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 368 [163].

[49] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 370 [175].

[50] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 371 [181].

[51] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 346 [18].

[52] [1936] HCA 40; (1936) 55 CLR 499.

[53] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 363 [125].

[54] [1999] NSWCCA 435; (1999) 48 NSWLR 327.

[55] [1999] NSWCCA 435; (1999) 48 NSWLR 327 at 336 [43].

[56] [1999] NSWCCA 435; (1999) 48 NSWLR 327 at 337-338 [48].

[57] [1997] SASC 6187; (1997) 69 SASR 150.

[58] [1997] SASC 6187; (1997) 69 SASR 150 at 171 per Doyle CJ.

[59] [1997] SASC 6187; (1997) 69 SASR 150 at 171.

[60] [1997] SASC 6187; (1997) 69 SASR 150 at 162.

[61] [1997] SASC 6187; (1997) 69 SASR 150 at 168.

[62] [1997] SASC 6187; (1997) 69 SASR 150 at 166.

[63] [1997] SASC 6187; (1997) 69 SASR 150 at 167.

[64] cf R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

[65] Customs Act, s 235.

[66] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 357 [76], 358 [89], 365 [140].

[67] von Hirsch and Ashworth (eds), Principled Sentencing - Readings on Theory and Policy, 2nd ed (1998) at 141-149.

[68] von Hirsch and Ashworth at 191-197.

[74] cf Sentencing Act 1991 (Vic), s 6D(a), which directs the Court sentencing a "serious offender" to regard the protection of the community from the offender as "the principal purpose for which the sentence is imposed".

[75] von Hirsch and Ashworth at 231-234; United States Sentencing Commission Sentencing Table.

[76] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [140].

[77] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [141].

[78] R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300 per Adam and Crockett JJ. See also R v Thomson (2000) 49 NSWLR 383.

[79] (2000) 49 NSWLR 383 at 396-411 [54]-[113].

[80] R v Geddes (1936) 36 SR(NSW) 554 at 555 per Jordan CJ; R v Gallagher (1991) 23 NSWLR 220 at 227-228 per Gleeson CJ, 233-234 per Hunt J; R v Beavan unreported, Court of Criminal Appeal of the Supreme Court of New South Wales, 22 August 1991; Winchester (1992) 58 A Crim R 345 at 350 per Hunt CJ at CL; R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300; R v Young [1990] VicRp 84; [1990] VR 951 at 955-956; R v Perrier (No 2) [1991] 1 VR 717; O'Brien (1991) 55 A Crim R 410; R v Nagy [1992] 1 VR 637; R v Harman [1989] 1 Qd R 414 at 421 per de Jersey J; R v Corrigan [1994] 2 Qd R 415; Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186; cf R v Sutherland unreported, Court of Criminal Appeal of the Supreme Court of South Australia, 16 November 1992; R v Harris; R v Simmonds [1992] SASC 3624; (1992) 59 SASR 300; Verschuren v The Queen (1996) 17 WAR 467.

[81] [1999] HCA 46; (1999) 198 CLR 111 at 121-122 [15]- [18] per McHugh J, 156 [115] per Hayne J.

[82] [1999] HCA 46; (1999) 198 CLR 111 at 148-149 [99]- [100].

[84] See, for example, the cubic representation of such a framework in Lovegrove, "Writing Quantitative Narrative Guideline Judgments: A Proposal", [2001] Criminal Law Review 265 at 279; cf Alschuler, "The Failure of Sentencing Guidelines: A Plea for Less Aggregation", (1991) 58 University of Chicago Law Review 901; Freed, "Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers", (1992) 101 Yale Law Journal 1681.

[85] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465.

[86] [1986] HCA 17; (1986) 161 CLR 513.

[87] [1986] HCA 17; (1986) 161 CLR 513 at 520 per Mason and Deane JJ.

[88] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [141].

[89] cf R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 374 per Kitto J.

[90] For example, Willis (1974) 60 Cr App R 146; Farrugia (1979) 69 Cr App R 108; Aramah (1982) 76 Cr App R 190; R v Boswell [1984] 1 WLR 1047; [1984] 3 All ER 353; Bilinski (1987) 86 Cr App R 146; Aranguren (1994) 99 Cr App R 347.

[92] [1997] 1 SCR 948 at 975 [34] per Sopinka J.

[93] [1997] 1 SCR 948 at 979-980 [42].

[94] [1997] 1 SCR 948 at 1009 [109] per McLachlin J.

At a glance

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Before

Source

Judgment (337 paragraphs)

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Legislation Cited (18)

Cases Cited (67)

Wong v R [2001] HCA 64; 207 CLR 584; 185 ALR 233; 76 ALJR 79 (15 November 2001)