The Queen (Cth) v Pham

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.