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

Copyright in the High Court of Australia

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 ‑ ‑ ‑

MR BROMWICH:   Certainly, your Honour.

KEANE J:   ‑ ‑ ‑ given that if your answer to that is correct then it does seem like it is a case for the grant of leave.

MR BROMWICH:   Very well, your Honours.  I will go directly to that question then.  Dealing first with the – well, obviously the President’s decision is what it is and I do not think there is much dispute about what that was, although the second limb of what I just identified is a separate issue.  But what we say is that the President’s reasoning was an important and practically indispensible part of the conclusion reached by each of Justice Osborn and Justice Kyrou, and what we say – and I will seek to demonstrate this shortly – that as a practical matter it is inseverable from the conclusion reached as to manifest excess. 

The taint of that reasoning, we say, is impossible to separate out from the result, and the balance of their Honours’ reasoning does not easily stand alone.  The list of reasons given by Justice Osborn and adopted by Justice Kyrou not only expressly adopted the President’s reasoning but, as I said, as a practical matter relied heavily upon the outcome of that reasoning to reach the conclusion as to manifest excess, and perhaps, your Honours, I can do that best by just taking your Honours to some key passages starting at application book page 46. 

Your Honours will see at paragraph 63 at line 10 but most particularly in the last sentence at line 20 that is where his Honour first refers to the reasons of the President, and I will not read the paragraph but the second last two sentences refer to the President’s analysis as being significantly more helpful than the general data, and your Honours would be aware that essentially isolates out inconsistency with Victorian sentencing practice and, indeed, there is, without reference to the provisions, references to the Sentencing Act (Vic) in relation to provisions that do not apply to Commonwealth matters. I will come back to that if I need to. But his Honour concluded in that paragraph that the President’s reasoning demonstrated:

that the sentence imposed was on its face a heavy one if assessed against sentencing practice in Victoria.

There is then the quote from Barbaro and the point to be made about Barbaro is that the reference to “comparable cases” and what has been done in other cases in paragraphs 40 and 41 of Barbaro needs to be read but is not read as being a reference to what has been done nationally not just in Victoria.  We then go to paragraph 73 and then 74 and 76, but in paragraph 73, his Honour Justice Osborn accepted that the President’s analysis demonstrated that the sentence imposed was on its face a heavy one if assessed against sentencing practice in Victoria.  So the reference in that paragraph to “generally similar” cases and the:

range ordinarily imposed in generally similar circumstances –

in the first two lines of paragraph 73 is a reference to the Victorian range.  Although the words are not used there, that is plainly what his Honour is referring to.  Then when you come to paragraph 74 at page 52 at the top of the page, his Honour says:

If, upon examination, the sentence is manifestly excessive or inadequate, reference to relevant examples of sentencing practice also provides a yardstick‑

Now, the reference there to “relevant examples of sentencing practice” was in the context of this case Victorian sentencing practice because that is the only relevant sentencing practice that gets taken into account in the decision.  So it is confining it here, it is embedded in the decision that we are referring to Victorian sentencing practice, and that becomes even clearer, with respect, your Honours, when one goes on to paragraph 76 and then into 77, that what is happening here is that the comparison with the Victorian outcome is producing the trigger for intervention, and that comes from the combination of 74, 76 and then through into 77.  In 76, his Honour observes:

It must also be recognised that it is necessary for an appellant to go beyond simply persuading the Court that it would have imposed a lesser sentence than that imposed by the sentencing judge in order to make out the ground of manifest excess.  The sentence must be ‘wholly outside the range’ of sentences that might reasonably have been fixed.

The only range in relation to which this sentence could be seen as being outside the range was Victorian sentences.  It could not otherwise be seen that way because Justice Maxwell in particular identifies that the Victorian cases are out of sync with the rest of the country, in effect.  So at each stage through this the notion of Victorian sentencing is embedded. 

Finally, to make this point in relation to Justice Osborn, when one comes to paragraph 77 and, of course, we have got the very subparagraphs (a) through (f) there, but the introductory part in paragraph 77 refers to a combination of matters upon which the appellant relies and his Honour refers to “combination” in the first line and “combination” in the last line, and when you look through the subparagraphs (a), (b), (c), (d) and (e), they are all relatively less significant considerations.  We do not say they have no importance but they are less significant considerations.  Then the final one in paragraph (f) over the page, application book page 55, when the reference is to the sentence being:

very heavy when compared with the class of broadly comparable cases identified by the President.

That, again, is a reference just to Victorian cases because that conclusion is not true and is not available when you have regard to the New South Wales and other decisions and Justice Maxwell says as much.  So, in relation to Justice Osborn, what we say is that his decision is tainted and impregnated and heavily ultimately dependent, although not wholly dependent, upon what Justice Maxwell had found and, indeed, the view independently formed, although based in part at least on President Maxwell’s decision, in relation to inconsistency with Victorian sentencing practice.

Now, turning then to Justice Kyrou and his judgment, as your Honours will be aware, is very short at pages 55 and 56 in the application book, but Justice Kyrou at paragraph 81 adopts the reasoning from Justice Osborn.  So in the first instance if your Honours accept the argument I have just put in relation to Justice Osborn, it necessarily flows through to Justice Kyrou, if that be necessary because we already have two out of three in any event, but it seems to follow through - the two travel in tandem.  Also, at paragraph 82, there is an express adoption of the President’s statistical analysis, and then in paragraph 83, the first sentence expressly says that:

The statistics establish that the impugned sentence is out of line with current sentencing practice in Victoria. 

Going back, we say, if you took out any of the references that I have taken your Honours to in either the judgment of Justice Osborn or the judgment of Justice Kyrou or, as we would say, both, you are left without the central foundation, without the weight, without the centre of gravity for their decisions, and we say what is inevitable and what really matters from the applicant’s point of view is this case is authority for my opening proposition that there is a need to have consistency within a jurisdiction rather than consistency nationally, which of course has been the issue and battle, if you like, almost since Federation but which the Crimes Act (Cth) and its

sentencing provisions introduced did away with to introduce a national consistency as the benchmark.  But that is the substance of the argument that we have to put in relation to whether or not it was a decision ‑ ‑ ‑

KEANE J:   Mr Bromwich, it might be helpful for the Court if we could hear from your opponent.

MR BROMWICH:   Very well, your Honour.

KEANE J:   Ms Archer.

MS ARCHER:   Thank you, your Honours.  It is very easy to analyse a set of reasons and nitpick and find errors in hindsight, but when one looks at the reasons of Justice Osborn, starting from the beginning and progressing through to the end, they are a model of near perfection.  If I can start at the application book page 40, Justice Osborn sets out the background to the matter and the circumstances. 

On the following page, he sets out the appellant’s case in some detail and lists all of the factors that the appellant claims were reasons why the court had erred.  Then on page application book 43, he talks about the Crown submissions and all of those reasons. Then on application book page 46 we get to the analysis. 

Simply those pages alone indicate that what Justice Osborn was doing was starting from the beginning.  We discover later that he had read in draft the reasons of the President, but that certainly is not apparent at this stage.  His Honour is writing his Honour’s own reasons for his Honour’s own conclusions. 

So we then get to his Honour’s analysis, and the first thing his Honour does is politely and respectfully refer to the analysis of the decision that was conducted by the President.  His Honour refers to having the benefit of reading them and points out that:

It is significantly more helpful than the more general data –

that is usually given.  This Court will be aware that the general data is often in the form of a table which might set out whether or not the person has prior convictions, it might nominate the role, it might provide in some cases very scant detail about the circumstances and then the sentence is imposed.  Little attention is given to the underlying principles as to why those sentences have been passed; little attention is given to an attempt to compare between different offenders and different cases, Crown appeals, respondent appeals and so on.

Attached to the application book are in fact the two tables that were provided by the Crown to the Court of Appeal.  Those tables, in my respectful submission, were not particularly useful.  So all that Justice Osborn is doing in this paragraph is saying this is better than the stuff we normally get and, for obvious reasons, his Honour is being polite and respectful about the President’s decision.

But then his Honour immediately points out the limitations to which statistics can be put in the very next paragraph and his Honour notes the limitations that were set out by this Court in Barbaro.  So that is the introduction of the analysis, polite, respectful reference to the President, a short notation of the limitation, let us move on.  His Honour does and begins, as his Honour ought to have, with an analysis of the legislative framework, and in paragraph 65 his Honour properly commences by setting out the relevant provisions of the Crimes Act.

In paragraph 66, his Honour returns to the sentencing statistics and his Honour is at pains to point out the very many ways in which those statistics can mislead.  So at paragraph 66, his Honour points out it can “mask differences with respect to other aspects of the culpability”.  In paragraph 67, his Honour points out that some of those things can be taken into account by limiting the number of variables that one uses in a given table. 

So, for example, in this case, President Maxwell eliminated some of the more common variables such as the role of the offender and whether or not they had prior convictions relevantly and whether or not there was a plea of guilty; some of the more significant factors in relation to the ultimate assessment.  But his Honour makes it plain that that is not enough.  Even if you eliminate all of those variables, you can still mask differences in culpability, and that is even where the “sample is restricted” as it was in this case.  His Honour says that expressly in paragraph 67. 

His Honour continues in paragraph 68 that an analysis based on the weight of the narcotic can mask significant differences between the personal circumstances of offenders, and again, in 69, he says you can take some of those things into account where you restrict the sample like this, but there is still “the potential for significant difference”.  Then in paragraph 70, not content with all of those limitations having been articulated, his Honour points out that weight is not the “chief factor” and correctly refers, in my respectful submission, to what fell from the Court in Wong.  So then we get to paragraph 71, where his Honour says:

Given the extent of the potential variations . . . there is also a fundamental limitation in the usefulness of generalised statistics –

So we are now up to paragraph 72, and all his Honour has done has been polite and respectful about the President, then spoken about the legislative framework, and then set out the various limitations and dangers involved in the use of these sorts of statistics and, in our respectful submission, he did so accurately and comprehensively.  So then we get to 72 and his Honour makes the unremarkable observation that they have some use against the background of all of those limitations.  Then in 73, what is the use?  “If a sentence appears to be outside the range” that might cause a court to give it more scrutiny.

KEANE J:   In relation to that, is it fair to say, as is said against you, that the range that is there being used as “the range” is a range which consists of Victorian decisions?

MS ARCHER:   Not in this paragraph, in my respectful submission, your Honour, because in this paragraph his Honour is simply talking about the principles and the proper approach. My learned friend correctly took your Honour to paragraph 63 of his Honour’s decision, which is the first paragraph of the analysis where we say he is paying polite and respectful comments about the President’s decision.

KEANE J:   Does he say at any stage that the range that he regards as relevant is a range which includes non‑Victorian sentences?

MS ARCHER:   No, your Honour.  So having said that if something was outside the range that invokes the court’s inclination to closely scrutinise is quite a different thing to saying that something being outside a range means there is an error; all it means is that the court is going to scrutinise.  If the court scrutinises and finds no error, that is the end of the matter.  In that sense, it actually makes no difference what the court is considering to prompt or to trigger that close scrutiny because it is just triggering close scrutiny.  It is not triggering a conclusion.  His Honour makes that plain within this paragraph.  So in the last sentence of paragraph 73 at about line 22, your Honours:

But other sentences cannot be definitive of error.

His Honour then cites what was said in the case of Hili by this Court.  Paragraph 74, his Honour talks about the yardstick but, again, not determining the result.  So not only can it not determine whether or not there has been an error, but it also cannot determine what the actual result should be.  Then we get to paragraph 75, where his Honour says, in effect, you can look at other sentences but they are not going to be determinative. 

So we then get to the conclusion in paragraph 77.  Now, it is put against us that paragraphs (a) to (e) were less significant than the last and, in my respectful submission, no fair reading of his Honour’s reasons could possibly give rise to such a conclusion.  Having been at pains to set out the significant limitations and dangers of the use of sentencing statistics, and having expressly chosen to draft his Honour’s separate reasons for decision, and having articulated five other reasons for finding that the sentence was manifestly excessive, in my respectful submission, it cannot be said that the last was the most significant.

Another interesting thing about his Honour’s judgment, if one goes to paragraph 78 of his Honour’s judgment, not only has his Honour elected to write his Honour’s own reasons, but his Honour has declared the new sentence that his Honour would impose and make a “but for” declaration which was required under the Sentencing Act, all of which, in my respectful submission, is designed to demonstrate that while his Honour was being polite and respectful towards the President, his Honour did not want anybody to be under any misapprehension that these were his Honour’s reasons. 

On two occasions my learned friend said that the other members of the court adopted the reasoning of President Maxwell and, in my respectful submission, at no point, nowhere do they do that.  So then, coming back to paragraph 77 ‑ ‑ ‑

NETTLE J:   Do you accept it would have been wrong for them to do so?

MS ARCHER:   We do not seek to support President Maxwell’s decision – reasons, I should say.  It would be possible to support them – I suppose I should, in fairness, add and that is that his Honour does at paragraph 9 of his Honour’s reasons set out the purpose of those sentencing statistics as being descriptive and not proscriptive.  We certainly also reject the criticism that is made that these were in some way sentencing guidelines, as were criticised in the decision of Wong.  His Honour is not making that error at all.

KEANE J:   But to the extent that reference to “a range” is relevant at all and not pausing to worry too much about what the relevance of “range” is, to the extent that it is relevant at all, the question is really, when one looks at paragraph 77(f) on page 32, when compared with the class of broadly comparable cases identified by the President, is the relevant comparison only with those cases?

MS ARCHER:   Is your Honour asking me what his Honour Justice Osborn was saying or what ‑ ‑ ‑

KEANE J:   Yes.

MS ARCHER:   I do not think it is – well, his Honour does not say one way or another but I think that it is fair for the applicant ‑ ‑ ‑

KEANE J:   He does say “the class of broadly comparable cases identified by the President”.

MS ARCHER:   Yes.

KEANE J:   It is fair to say that the class of broadly comparable cases are the Victorian cases to the exclusion of cases from elsewhere.

MS ARCHER:   In my respectful submission, the President is setting out in a table all of the cases he says are broadly comparable.  That is how he describes this table.  This is a table of all of the broadly comparable cases made up in part by cases that were put to me by the offender’s counsel and cases that were put to me by the Crown.  So he is talking about broadly comparable cases throughout Australia.  What his Honour then does is say that if you look at that table and if you look at this graph, it looks like the Victorian cases are sentenced at a lower level than the other cases.

Now, as we pointed out in our response, that is actually probably not right, strictly speaking, but when the table and the graph of broadly comparable cases contains all of the cases, but I think it can be said against us that when Justice Osborn is talking about compared with broadly comparable cases identified by the President, very heavy, that that is picking up on the President’s reasoning about Victorian cases.  But we say that the observation could equally be made in relation to all of the table – all of the cases on that table, and we have explained why in our written submissions.

If we can go to the table very briefly which is at page – if I could start with the graph actually which is at page 39 – now, the little cluster of cases that is above the parallel lines are predominantly the New South Wales cases which, as we have indicated in our summary of argument at page 77, were the six New South Wales cases of between 19 and 39 per cent.  So there are six New South Wales cases within that band that are above the parallel lines.  There are actually nine cases – nine other New South Wales cases on the graph, eight of which are within the band. 

So let us just look at these six.  Three of them were New South Wales decisions prior to the date upon which the Court of Appeal in New South Wales decided it needed to stop relying on the ranges set out in the Court of Appeal in New South Wales in the case of Wong.  So the Court will remember that the Court of Appeal in Wong in New South Wales set out a range of cases and set out a gridline judgment to provide guidance in the future, and this Court said it cannot do that. 

Subsequent New South Wales Court of Appeal decisions continued to rely on the ranges that had been set out by the Court of Appeal in Wong’s Case, despite the High Court saying you could not do this gridline judgment.  It was only in about 2010 that New South Wales Court of Appeal said we need to stop doing this.  Those ranges are infected by everything else that went before.  So that would knock out three of those cases:  Paliwala, Mirza and Mirzaee. 

We then have the case of Brink which is another one of those – in that cluster.  Now, in Brink’s Case, the sole ground of appeal was the sentencing judge had failed to take into account sufficiently the disability that the offender suffered, he was missing a leg.  He was unrepresented, the appeal was decided on the papers and the only issue that was being considered was the question of his disability.

We then have – I am sure I will not be able to pronounce that, but it is Govindaraju.  Now, in that case, that was one of the cases included on the Crown’s table, and in that case the Crown described him as more than a mere courier.  Having said that, in the Court of Appeal that description was actually rejected.  So perhaps that case does remain.  Then you had Youssef’s Case which sits there. 

But when one actually looks at all of the other New South Wales cases, the Queensland case, the three Queensland cases and the Western Australian case, the sentence that was imposed in this case was significantly out of line with all of the cases on this table.  So you take out those three that were not reflective and you compare the New South Wales cases overall and the outcome is that this sentence was out of line.  So, whether or not Justice Osborn was referring only to Victorian cases or all cases, the sentence would be accurate.

NETTLE J:   Ms Archer, can I ask you to go to page 34 of the appeal book - paragraph 42 of President Maxwell’s reasons:

When the appellant pleaded, guilty, he was reasonably entitled to assume that he would be sentenced in accordance with current sentencing practices in Victorian courts.

Then Justice Kyrou’s judgment, paragraph 83:

The statistics establish that the impugned sentence is out of line with current sentencing practice in Victoria. 

Do you accept that what is said in paragraph 42 of the President’s reasons is wrong?

MS ARCHER:   Yes, your Honour.

NETTLE J:   Thus, to the extent that it is adopted by Justice Kyrou in 83, it is also wrong?

MS ARCHER:   With respect, no, your Honour, because we say that in 83 his Honour is not adopting that.

NETTLE J:   Yes.  It would only be if he were adopting it and to that extent it would be wrong.

MS ARCHER:   It would be wrong, yes.  We certainly do not submit that an offender can have a reasonable expectancy of really anything other than ‑ ‑ ‑

NETTLE J:   So there is no dispute between you and the Crown as to principle - application in the particular circumstances of this case, is it?

MS ARCHER:   That is correct, and that is one of the reasons why we say that the single reasons of the President of this Court of Appeal is not going to have any broader ramifications because the law is clear.  Hili’s Case made it clear. 

NETTLE J:   Thank you.

KEANE J:   Thanks, Ms Archer. 

MS ARCHER:   Thank you, your Honour.

KEANE J:   Yes, Mr Bromwich.

MR BROMWICH:   Your Honours, really, in terms of the opening question by Justice Keane, it really turns, at least to that extent, on what is meant by Justice Osborn at paragraph 73 when he refers to “the analysis undertaken by the President”, and what is meant also by his Honour at paragraph 77(f) at page 55 when there is a reference to:

very heavy when compared with the class of broadly comparable cases identified by the President.

So those cross‑references to the President, what are they?  Can I just respectfully take your Honours back to page 25 of the application book?

NETTLE J:   Mr Bromwich, before you do, even if you got the grant of special leave in this case, who is going to be the contradictor on the point of principle?  You have furious agreement that Hili is correct and applicable and to the extent that Justice Maxwell departed from it he was wrong.

MR BROMWICH:   Well, your Honours, we do not entirely have furious agreement because a central part of the case put against us is that Hili is concerned only with consistency of principle, not with consistency of outcome, and we starkly depart on that, and in fact it is a very important point of departure because we say Hili is – it has two distinct aspects, paragraphs 47 through to 57 of this Court’s judgment picks up the spirit of Wong in paragraph 48 and then develops it in two distinct aspects, one as to principle and the other as to outcome, and we have a real dispute in relation to that because we say that Hili is vitally concerned not just with principle but with outcome, because that is the only way you achieve what Chief Justice Gleeson said about like cases being treated alike. 

You do not get like cases being treated alike if you confine yourself to principle.  You must have regard to outcome.  That is why paragraph 57 in Hili picks up the Farah Constructions line of reasoning and says it applies to outcomes and sufficiency of sentence and so on in paragraph 57, so there is a live disagreement in relation to the scope of Hili.  The second point is that this decision, if it stands, is already being used in the manner that we have said, it is a problem. 

The other broad issue which I would identify – and this happens from time to time when this Court gives a judgment on an area, it then falls for the intermediate appeal courts to give it practical application beyond the scope of the original case, and our problem now is that national consistency in federal sentencing is a very real issue and a very real problem and this case is going to, and is already, aggravating that problem because of the way it is reasoned and there is no way of getting around, if I may develop my point shortly – have I dealt with your Honour’s question?

NETTLE J:   Yes, thank you.

MR BROMWICH:   When we deal with paragraphs 73 and 77(f), the references to the analysis undertaken by the President, you have to have regard, if I could just quickly take your Honours on a short excursion through Justice Maxwell’s decision, at page 25, paragraph 6 refers to “a table of Victorian appellate decisions” and the Commonwealth Director provided a nationwide paragraph.  Then in paragraph 8, there is a reference to:

a stark difference between sentencing practice in Victoria and that in other states for importation offences involving comparable quantities.

Then in paragraph 10, there is a reference to:

the reasonable expectation that he would be sentenced in accordance with current sentencing practices in Victorian courts.

We then jump ahead to paragraph 41 at page 34 where:

The Victorian decisions in the table –

So this is the conclusion which is being, we say, picked up –

reveal a consistent sentencing practice for offences in this category of seriousness, to which the sentencing judge was obliged to have regard.

When you come to paragraph 42, and the point I am about to make, I apologise, will be a more familiar one to Justice Nettle than to Justice Keane, but the phrase that is used at the top of page 35, “current sentencing practices in Victoria”, that is a reference to a phrase that appears in section 5(2)(b) of the Sentencing Act 1991 (Vic) which does not apply because section 16A applies to Commonwealth sentences. That paragraph provides that:

(2)      In sentencing an offender a court must have regard to –

(b)     current sentencing practices –

So this is picking up current sentencing practices in Victoria, a piece of legislation which only applies in this State and does not apply anywhere else, so that it is unavoidable that when there is references to and reliance upon and at least a degree of adoption and reliance upon what the President reasoned, it is a reference to Victorian sentences and Victorian sentences alone. 

Finally, just in relation to this point, if we turn to the graph which my learned friend took your Honours to at page 39 of the application book, your Honours will see that there are the two parallel lines that are drawn.  Those parallel lines essentially seek to establish a band based – it is essentially a Victorian bandwidth.  Apart from anything else, the very presence of those lines runs entirely counter to Hili in relation to the notion of upper and lower limits on a range. 

The part that was picked up in paragraph 54 adopting – this Court adopted the reasoning of Justice Simpson in De La Rosa, and your Honours will see that if you go at the point between 30 and 40 on the bottom of the chart, you will see that there are three Victorian cases that fall within that

bandwidth and the sentence at the side falls within - that sentence reimposed by that court falls within that bandwidth and then even if some of them be excluded there is a cluster of non‑Victorian cases above that, six in number, all of which sit above that. 

So when the reference is made by Justice Osborn at paragraph 77(f) about very heavy when compared with the class of broadly comparable cases, that cannot in the circumstances have been a reference to anything other than Victorian sentences, which brings me back – and I will not repeat it – to the problem that we really have with this decision and the likely impact of this decision is that it will entrench the notion of intrastate consistency rather than interstate consistency.  Again, as I said, with my learned friend suggesting that Hili is directed to consistency of principle rather than consistency of outcome, and I can develop that further if it will be of assistance.

KEANE J:   Well, your red light is on.

MR BROMWICH:   I had best stop then, your Honours.

KEANE J:   Thank you, Mr Bromwich.  Yes, there will be a grant of special leave in this matter.  Mr Bromwich, time - how long do you think the matter will take?

MR BROMWICH:   I think with the benefit of written submissions it is probably a half‑day case, but perhaps the long half of the day rather than the short.

KEANE J:   Ms Archer, do you have a different view?

MS ARCHER:   May I suggest a day because it may be that the respondent files a notice of contention.

KEANE J:   Okay.  Very well, there will be a grant of special leave in this matter and the parties are directed to follow the directions of the Deputy Registrar in relation to lists of authorities and submissions and the parties are reminded that these directions are to be adhered to. 

AT 1.27 PM THE MATTER WAS CONCLUDED