The Queen (Cth) v Pham - [2015] HCATrans 121

[2015] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M101 of 2014

B e t w e e n -
THE QUEEN (CTH)
Applicant
and
VU LANG PHAM
Respondent
Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MAY 2015, AT 12.45 PM

MR R.J. BROMWICH, SC: May it please the Court, I appear for the applicant with my learned friend, MR D.D. GURVICH. (instructed by Director of Public Prosecutions (Cth))

MS G.A. ARCHER, SC: May it please the Court, with MR M.D. PHILLIPS, I appear for the respondent. (instructed by Victoria Legal Aid)

KEANE J: Mr Bromwich.

MR BROMWICH: Your Honours, the decision of the Victorian Court of Appeal is authority for the proposition, endorsed by all three Judges, that federal offenders in Victoria be sentenced by reference to Victorian sentencing yardsticks rather than national sentencing yardsticks, including using statistical analysis to reach this result.

KEANE J: Is that strictly true? One can see that that is certainly the position taken by the President, but is it fair to say that Justices Osborn and Kyrou subscribed to that view?

MR BROMWICH: Yes, your Honour. I can deal with that directly or I can deal with it as I was anticipating the question as I develop my argument.

KEANE J: You deal with it in your way.

MR BROMWICH: Thank you, your Honours. I was very alive to that, as your Honours will shortly hear. What we say though, if your Honours accept that proposition, is that this approach is contrary to this Court’s decision in Hili v Jones and more than that, as I will seek to develop in argument shortly, it is a radical departure from Hili in authorising a sentencing principle of State based rather than national sentencing standards and consistency for federal offences.

The respondent, as we understand it, in opposing the grant of special leave essentially contends that this is not what the majority in the Victorian Court of Appeal decided or did and that, in any event, there is no conflict because it is said against us that Hili is only concerned with consistency in federal sentencing principles and not outcomes, so I seek to demonstrate both of those contentions are wrong.

Your Honours, we adhere to our written argument and seek to address the Court as briefly as possible on three topics. The first is the key messages in Hili on national consistency in federal sentencing. The second is Justice Keane’s question just now as to whether Justices Osborn and Kyrou did in fact adopt the reasoning of the President, and the third is to address some errors in the respondent’s case in opposing special leave, unless that is best left in reply.

KEANE J: I think you can probably usefully confine your attention to the question that I put to you at the outset ‑ ‑…

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

Case: [2015] HCATrans 121
Decision Date

CaseChat Overview and Summary

The applicant, the Commonwealth of Australia, sought special leave to appeal from a decision of the Victorian Court of Appeal. The dispute concerned the sentencing of federal offenders, with the applicant arguing that the Victorian Court of Appeal had erred by applying Victorian sentencing yardsticks rather than national ones. The applicant contended that this approach was contrary to the High Court's decision in *Hili v Jones* and represented a significant departure from the principle of national consistency in federal sentencing.

The High Court was required to determine whether the majority of the Victorian Court of Appeal, specifically Justices Osborn and Kyrou, had adopted the reasoning of the President, which favoured the use of state-based sentencing standards. The applicant argued that this reasoning was inseverable from the majority's conclusion that the sentence imposed was manifestly excessive, thereby creating a conflict with the High Court's established jurisprudence on national sentencing consistency for federal offences. The respondent, Mr Pham, contended that the majority had not adopted the President's reasoning and that, in any event, there was no conflict with *Hili v Jones* as that case was concerned with consistency in federal sentencing principles, not outcomes.

The applicant argued that Justices Osborn and Kyrou had relied heavily on, and effectively adopted, the President's reasoning, which was based on statistical analysis of Victorian sentencing practices. The applicant pointed to specific passages in the judgments of Justices Osborn and Kyrou that, it was submitted, demonstrated a clear reliance on Victorian sentencing data and practice to determine manifest excess. This, the applicant argued, was a practical departure from the national consistency mandated by *Hili v Jones*. In response, the respondent argued that Justice Osborn's reasons were a comprehensive analysis that, while respectfully acknowledging the President's work, independently considered the legislative framework and the limitations of sentencing statistics. The respondent contended that Justice Osborn's reference to a "range" was not definitively limited to Victorian cases and that, even if it were, the sentence was still out of line with a broader comparison of all cases.

The High Court granted special leave to appeal.

Orders