2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 September 2014.
3.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".
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Pham [2015] HCA 39
Case
[2015] HCA 39
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by the Commonwealth Director of Public Prosecutions against the respondent, Mr. Pham. The dispute concerned the sentencing of Mr. Pham for a federal drug importation offence. The Court of Appeal of the Supreme Court of Victoria had previously allowed Mr. Pham's appeal against his sentence.
The High Court was required to determine two principal legal issues. Firstly, whether the Court of Appeal erred in law by concluding that Mr. Pham should be sentenced by reference to current sentencing practices within Victoria, to the exclusion of sentencing practices across the entire Commonwealth. Secondly, the Court had to consider whether the Court of Appeal’s adoption of a statistical analysis of comparable cases, correlating sentence length with the quantity of drugs imported, was a permissible method for assessing the objective seriousness of the offence.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal. The Court reasoned that sentencing courts exercising federal jurisdiction are required to have regard to current sentencing practices throughout the Commonwealth, not merely within a particular state. Furthermore, the Court found that while statistical analysis of sentencing decisions can be a useful tool, it must be approached with caution, particularly when dealing with offences that encompass a wide range of conduct and criminality. The Court noted that such analysis risks masking important differences in offender culpability, the purpose of the importation, and the individual circumstances of offenders. Consequently, the matter was remitted to the Court of Appeal for determination.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 September 2014.
3. Remit the matter to the Court of Appeal for determination.
Background
Background to the litigation
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 kilograms[1].[1]Criminal Code, s 314.4(1), item 76.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, KEANE AND NETTLE JJ
BELL AND GAGELER JJ
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.[2]Pham v The Queen [2014] VSCA 204 at [10]. 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 allowed[3].[3]Pham [2014] VSCA 204 at [10]. 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 Queen[4], 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"[5]. 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.[4](2001) 207 CLR 584 at 608 [66] per Gaudron, Gummow and Hayne JJ; [2001] HCA 64.[5]Pham [2014] VSCA 204 at [73].
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, KEANE AND NETTLE JJ,
BELL AND GAGELER JJ