Elias v The Queen

The High Court of Australia considered appeals by Elias and Issa, who were convicted of drug trafficking offences. Their convictions arose from their involvement in assisting Antonios Mokbel, a principal in a large-scale methylamphetamine enterprise, to evade arrest and flee the country. The central dispute concerned whether a sentencing judge is required to consider a lesser maximum penalty of an alternative offence, for which the offender could have been prosecuted but was not, as a mitigating factor when imposing sentence.

The legal issues before the High Court were whether the principle established in *R v Liang* (1995) 124 FLR 350, which suggested that a sentencing judge should consider the lesser maximum penalty of an alternative charge, should be followed. Specifically, the Court had to determine if there is a common law requirement for a sentencing judge to take into account the maximum penalty of an offence for which an offender could have been charged, but was not, as a mitigating factor. The Court also considered the respective roles of the prosecution and the sentencing judge in determining the appropriate charge and sentence.

The High Court held that there is no warrant under the common law of sentencing for a judge to take into account the lesser maximum penalty for an offence for which the offender could have been, but has not been, convicted. The Court reasoned that considering hypothetical alternative charges and their maximum penalties would be a distraction and complicate the already difficult task of sentencing. The Court noted that it will often be possible to conceive of other charges upon which the prosecution might arguably have proceeded, and that it is not the role of the sentencing judge to engage in such speculation. The Court accepted the submission that *R v Liang* does not state a principle of sentencing known to the law.

Consequently, the appeals were dismissed.