The Queen v Pham

[2015] HCATrans 218

[2015] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M82 of 2015

B e t w e e n -

THE QUEEN (CTH)

Appellant

and

VU LANG PHAM

Respondent

FRENCH CJ
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 SEPTEMBER 2015, AT 10.15 AM

Copyright in the High Court of Australia

MR R.J. BROMWICH, SC:   May it please the Court, I appear with my learned friend, MR D.D. GURVICH, for the appellant.  (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)

FRENCH CJ:   Yes, Mr Bromwich.

MR BROMWICH:   Your Honours, one matter of oversight and housekeeping. Your Honours were provided with a bundle of legislation which included Part 1B of the Crimes Act 1914, but the date at which it was provided was the date of the offending, not the current version. What has been provided to the Court crier is the current version, and can I just very briefly indicate in very narrow compass what the differences are, only because my learned friend, who brought this to our attention, seeks to at least in part refer to one part of it.

The relevant difference, although it is not in terms relevant for this case, is section 16A(2)(ea) was inserted.  Your Honours will see that refers to victim impact statements, which was, of course, not a feature of this case, but as part of that there were two new sections introduced; section 16AAA, which provides for the victim impact statements, and section 16AB, which provides for matters relating to victim impact statements.  But I apprehend my friend will simply be saying that was not referred to because it had no application, but I apologise, your Honours.

FRENCH CJ:   Yes, all right, thank you.

MR BROMWICH:   Your Honours, I apprehend that I will be fairly economical in what I have to say because we do not have a lot, at least in our argument in‑chief, to say differently from what is in our written submissions.  The issue of principle it seems in dispute between the parties is as to the role of intermediate appeal court decisions in federal sentencing and in federal sentencing appeals.  Your Honours would have been provided with an outline of oral submissions which I will not slavishly read but I will use that as a form of a guidepost. 

In a sense it is trite to say that reasonable consistency nationwide in federal sentencing is important to ensure, so far as possible, that like cases are treated as like and that the administration of federal criminal justice is systematically fair.  The question then really is as to how that is best to be achieved and what has previously been said by this Court on that topic and what is to be made of what this Court has said on that topic.  This is an area where perhaps by nuance but, I think, in substance, the parties do depart.

The reasonable consistency in federal sentencing we say is to be achieved firstly by the proper and, therefore, consistent application of sentencing principles and I place some emphasis on the word “application” and that is, of course, especially Part 1B of the Crimes Act 1914 but also principles beyond Part 1B derived from common law and from applicable State or Territory law as surrogate federal law and secondly, as part of that, in a sense, having regard to what has been done in other cases and why. The reason I place emphasis on the application of sentencing principles is this is not about identifying what those principles are or their content. It is not a question of interpretation although that, of course, does arise.

The consistency takes as given that you have settled or unified sentencing principles which may adjust and change over time. The issue is to ensure that they be applied and that intermediate appeal courts have a central role to that and you can pick a range of sentencing principles to which that could apply. For example, within Part 1B there is a reference to the effect on dependants and there has been a body of case law that has been developed that you only have regard to the effect on dependants if it is exceptional because otherwise it would occur in every single case.

What matters then, that position having been arrived at by many different intermediate courts of appeal, is that that is applied across the board, so that you do not have a situation where in one part of the country the mere fact that you have a dependant is given real weight; in another part of the country it is not given real weight because the higher threshold of exceptional circumstances is not present.

A common law version of that could be in relation to the effect of a guilty plea in federal sentencing and this Court has said in Cameron, speaking in relation to common law principles, that there are only three aspects which you take into account, which is remorse, acceptance of responsibility and facilitation of the course of justice - administration of justice - not the utilitarian benefit which is a departure from at least statutory regimes in places like New South Wales and the Australian Capital Territory.

So the point we make is that the intermediate appeal courts are not just - and the authority in this area, particularly in Hili, but also the references to Hili in Barbaro and in Lacey, are not talking about the content of the principles, but of the application of the principles, and that is an important point of distinction between the argument we advance and that which my learned friend advances.  I should say that it is not that side of the issue other than our disagreement that really arises for consideration in the content of this case, although it does stand as an important point of principle. 

The second limb is what has been done in other cases and why, which again is a reference to the discussion – certainly occurring in Hili but in numerous other decisions – Barbaro has been but one but Lacey as well and what is referred to in Hili the consistency is to be achieved by the work of intermediate appeal courts. 

So when we go back to Hili, Hili is ultimately – in the part that is dealing with consistency in federal sentencing from paragraphs 46 through to 57 – is about consistency of outcome and how you achieve consistency of outcome.  It is not about consistency of interpretation.  Doubtless, that is very important but that is not what part is concerned with.  That part is concerned with it being taken as given that you have settled or unified sentencing principles – by statute, by common law, by Commonwealth statute or by surrogate federal law by the application of State sentencing law where it applies, but, rather, how it is that you achieve the consistent outcome.

Built into that is the difficulty that emerges with not taking, if you like, the injunction from Hili to the next step and that is to place primary responsibility and primary regard to what has been done in intermediate appeal courts rather than having regard to first instance decisions unless, of course, you have a situation where there just is not a sufficient body of intermediate appeal court decisions, that is, that if you do have a sufficient body of intermediate appeal court decisions, it is highly desirable that sentencing courts really have regard to that body of law and not to the body of primary or first instance decisions, not least because one can never be sure that a primary or first instance decision is correct.

It has not been tested, it has not been taken on appeal and just because the Crown has not taken an appeal in a matter does not mean that the sentence is considered to be right.  Crown appeals are more restricted than that and more limited than that.

So, if you take as the point picked up in Hili from De La Rosa the cautionary note that a history of sentencing cannot do more than establish what sentences have in fact been imposed, and not that the range collectively disclosed is correct or that it establishes the upper or lower limits, you need the input and the application of intermediate appeal courts, both as to the application of principle and how you go about it, in a sense, and secondly what has happened in other cases rather than going the step below to first instance decisions.

It follows that our central argument, and a point, again, where we part company with our learned friends, is that while reasonable consistency is not crude numerical equivalence, nor is it barren principle without proper regard to prior sentencing outcomes, you need to have regard to the application of principle, but you do need to have regard to what has happened previously, and you need to have primary regard, we submit, by reference to appellate yardsticks rather than first instance yardsticks because if we do not have primary regard to appellate yardsticks, we just end up with this massive sea of first instance decisions turning so much on their own facts and without regard to the problem identified by Justice Simpson in De La Rosa that you cannot be sure that it is right or not.

FRENCH CJ:   By “appellate yardsticks”, you mean not statements of legal principles at appellate level, but the range of outcomes of a number of appellate decisions ‑ ‑ ‑

MR BROMWICH:   Yes, your Honour.

FRENCH CJ:   ‑ ‑ ‑ relevant to the particular area you are concerned with?

MR BROMWICH:   Yes, and that becomes particularly important, if I may say, Chief Justice, when you have the decision of this Court in Barbaro which says that you essentially are meant to put up the facts, the sentencing principles, and what has happened in other cases.  If we do not have the discipline or some support for the discipline of having primary regard to intermediate appeal court decisions – not as precedents because we know that they are yardsticks and not precedents, but the yardstick is a more reliable yardstick – it is less likely to have the problem identified in De La Rosa because it has had the considered input of an intermediate appeal court, otherwise, it just becomes a scattergun.

FRENCH CJ:   I am just wondering how all this works with proposition 4 in your outline which might be apposite to the decision of an intermediate appeal court on a matter of law, but when you talk about things being plainly wrong and not departed from, what are you talking about?

MR BROMWICH:   It is picking up from what was said by this Court in Hili at paragraph 57. Can I perhaps take your Honours to that, and then say something about what I think the answer to your Honour’s question is. Paragraph 57 in Hili – it is Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 and the particular passage is at page 538. There, the plurality said that:

In dealing with appeals against sentences passed on federal offenders –

how they are brought –

the need for consistency of decision throughout Australia is self‑evident . . . should not depart from an interpretation placed on Commonwealth legislation –

and we know all about Farah Constructions and Marlborough Gold Mines, and that line of authority.  But it is then the last sentence – and in a sense, I have to answer the question by reference to what this Court has said.  So point made, and I might just read that because it is important to make the point –

So, too, in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong.

First of all, perhaps the language of “plainly wrong” is a harsh way of expressing it.  I have seen softer ways of expressing the same principle, I think, in a decision by – or judgment by Justice Nettle where, I think, the phrase was used “without there being a compelling reason to do so”; perhaps if you use that form of language and then you put it in context.  In context what it means – I think it means, it is ultimately – I am trying to say back to this Court – what this Court meant, but what it means is in a practical sense given that we are not talking about precedent and we are not talking about following interpretation ‑ and I think that is what the Chief Justice might be apprehending in this ‑ it ultimately, in a practical sense, must mean that it becomes part of the yardstick range of sentences that you must have regard to.

This Court said in Hili and said in Lacey and said very emphatically in Barbaro not that you may or that you might or you might like to have regard to but that you must have regard to yardstick sentences.  The way of making that workable is to say what you really must have regard to is the yardstick sentences revealed by intermediate appeal court decisions rather than first instance decisions.  It is still not a precedent and so the language unless convinced it is plainly wrong is perhaps better put that you do not disregard a prior intermediate appeal court sentence outcome unless there is a compelling reason to do so.  The compelling reason might be in the nature of distinguishing and, of course, it is going to be more readily able to be distinguished because of material differences between the instant case and the prior case.

But if you want to go beyond that identifying distinguishing features, for example, if you have got a prior case that is on all fours and the instant case you want to say an appellate court wants to depart from that and it really is on all fours, they are going to have to say, well, we are going to depart from that whether you use the language of “plainly wrong” or whether you use the language of “a compelling reason to do so” because you are going to have to bring it out and say why because otherwise it is part of the range of decisions and without doing that you then have an apparent conflict without resolution of the conflict which, I think, is what this line of authority generally talks about, that if you are going to depart as an intermediate appeal court from what another intermediate appeal court has done you need to say so that you are doing it and need to say why otherwise it is left unanswered.  Does that satisfactorily address your Honour the Chief Justice’s question or does it leave more questions begging?

FRENCH CJ:   Well, partly it involves an interpretation of paragraph 57 of the last sentence and that is our problem as well as yours.

MR BROMWICH:   That is right.  Well, I do not think, with respect, that it can be taken absolutely literally and, of course, there is that strong body of authority that judgments of this Court or any other court are not to be interpreted like statutes.  You will need to go beyond that and make sense of it if you like.  I am not saying this did not make sense but it is clearly enough.  My learned friend and I have taken a different view of how that should be read.  My learned friend appears, and I do not put too many words in her mouth lest she disagrees, but my learned friend seems to be speaking in terms of underlying principle, what the principles are and what we are saying is no, it is about the application of the principles and about what has happened in prior cases with that particular sentence focusing on that particular limb of it. 

BELL J:   There are two sources of material that are frequently made available at first instance and to intermediate appellate courts in support of an argument that a sentence is either manifestly excessive or manifestly inadequate.  That is the statistical material that in New South Wales is produced by the Judicial Commission.  I think the Commonwealth makes statistical material of a like kind available and that is crude material reflecting the range of outcomes at first instance defined sometimes by – or confined by some integers, whether or not the person convicted had previous convictions and the like.

MR BROMWICH:   Indeed.

BELL J:   This Court has emphasised that that material is perhaps less valuable than material that reveals the factual background of a case said to be comparable, and clearly if you have a number of cases that are truly seen to be comparable that might inform an idea of whether a given sentence falls outside the range of discretion.  That analysis tends to place emphasis on the appellate decision because it is in an appellate decision that you learn what the facts were, but does not depend upon a view that until reviewed by an intermediate court, the sentence imposed at first instance might not be correct.

MR BROMWICH:   The difficulty in a sense is coming at it the other way, that if you have got a first instance decision, it is a decision that has been made by a single judge in a single set of circumstances.  The individual judge will have looked at whatever material is placed before that judge.  Necessary sentencing at first instance is a more rapid, less deeply considered process, and I do not there is a lack of hard work.  Quite to the contrary, I think there is an awful lot of hard.  It is just that it is difficult to spend the time and have the period of reflection.  What that does is increase the risk that any given single judge decision which may look all right in its own terms, in the wider context is out of synch or does not reflect an appropriate approach to sentencing standards, and so on.  So you can get an internal consistency with a first instance decision, but you do not get that broader landscape and that greater period of consideration.

So what we are really saying is not that you would have no regard to it; you might, for example, be coming up for a sentence and a first instance decision could have been handed down in the relatively recent past which has looked at a whole lot of intermediate appeal court decisions and synthesised them in some way and articulated what emerges from them and so on but, unless it has that sort of quality to it, you have to approach them with a great deal more caution.  And what we are experiencing – and I have to say it is being experienced around in the country and in the State and Territory DPPs as well as Commonwealth – is that it is hunting around for a case that gets you the sort of result that you want, and the result and the statistics tend to an extent inevitably drive what gets put forward, and that is the very hazard or danger which we are articulating.

I should also, if I may, Justice Bell, take up the two forms of statistics or figures or information that have provided the bare statistics.  What seems clear from Hili and really developing from Wong is that those very raw statistics are really only the first entry point; they are really at first blush.  That gives you the lie of the land, so it will tell you for a particular kind of offence, has the general pattern been inevitable custody?  So are we really talking about duration or is there a dividing line between custody and non‑custody, so is there a real disposition issue here as well as a duration issue if it is to be custodial?

But what is clear enough – I think this emerges from Hili itself, if I can find the right passage.  I think it was paragraph 48 in Hili.  There the plurality said, in the third sentence referring to:

numerical tables, bar charts or graphs is not useful –

Then the next sentence says –

is not useful because referring only ‑ ‑ ‑

BELL J:   Yes.

MR BROMWICH:   So, the emphasis is on “only” that, by all means, there may be cases in which that may be useful but you have to be very careful you do not stop at that point, because if you do stop at that point you end up with the very grid sentencing which this Court decried in Wong.

BELL J:   And with the difficulty Justice Simpson identified in De La Rosa.

MR BROMWICH:   Yes, that is right.  Of course, it becomes even worse if you only have regard to tables, bar charts or graphs because to the extent that error is able to be identified or an approach that is not preferable is there to be seen, that is completely obscured by the time you have got markings or dots on a graph.  It actually – and we have made that point elsewhere, that if you do that as more than an entry point, the danger is that you will do all the things that this Court has really said you should not be doing. 

Bringing it then back to this case – and it is important, of course, that I do that – what has happened here is that the Victorian Court of Appeal – and we have our debate about whether or not it is Justice Maxwell, the President on his own, or whether he is joined by Justices Osborn and Kyrou – and I can come to that in due course if that is a point that really does trouble the Court and I expect my friend will argue it at some greater length but we do say it is the overall view of the Court of Appeal – is that what they have essentially done is the very thing that Hili, it seems, with respect, was designed to avoid happening, that is, that you have not got national consistency because you are not relying on the work of intermediate appeal courts, you are only relying on the work of an intermediate appeal court, being that intermediate appeal court, the Victorian Court of Appeal and, in particular, not having regard to what has happened in other jurisdictions.

That has partly been achieved by picking up the phrase within the State Sentencing Act referring to current sentencing practice and treating that as a licence, in effect, to confine your consideration to that jurisdiction, and that is the real vice in this case because it encourages, as we have said, a confining of consideration to one jurisdiction.  This will sound glib but I do not mean it to be glib, it is the sort of thing that reinforces what I would describe as the Albury‑Wodonga problem.  If you commit a $75,000 social security fraud in Albury, you almost certainly will go to gaol.  If you commit that same fraud over in Wodonga, you almost certainly will not.  It is that sort of thing – and it is why this case is so important from our point of view – that we need to have the national consistency developed by intermediate appeal courts nationwide and that each intermediate appeal court does have regard to what the others have done.  It may produce a wider range of outcomes but it should produce overall greater consistency of outcome.

FRENCH CJ:   You rely also, I think, on an observation in Johnson v The Queen.

MR BROMWICH:   Yes.

FRENCH CJ:   At 15.

MR BROMWICH:   That was really to pick up the notion that ‑ ‑ ‑

FRENCH CJ:   Excluding peculiarly local or statute statutory principles of sentencing.

MR BROMWICH:   That is right.  That is so that you have got the – I think it was Putland where the particular local sentencing law was picked up because there was not federal provision for that particular aspect of sentencing. But, generally speaking, you go to Part 1B, it articulates a set of things, it does not articulate everything. It leaves some matters for the common law and the most obvious one which we all know of is general deterrence because that was left out of Part 1B. But something that is peculiarly local or state‑based – and we say that applies to section 5(2)(b) of the Victorian sentencing legislation because that talked about current sentencing practices. We say that cannot be picked up and applied as federal law because otherwise you would have the bizarre outcome that a federal law picks up State law mandating non‑national consistency and we say that cannot be right.

That represents really the substance of our argument, that the Victorian Court of Appeal has gone directly against what this Court we say mandated in Hili, although we do develop the argument a little further by saying that the best way to advance what Hili was after is not just positively to set the task to intermediate appeal courts, but to positively encourage a confinement so much as possible to appeal court decisions when there is a sufficient body of them, because that in itself will advance consistency by producing a more coherent body of sentencing law, particularly a more coherent body of yardsticks, recognising their non‑precedent value as such, but their strong guiding value which is of course very important to pick up what Chief Justice Gleeson said in Wong as reproduced in paragraph 47 in Hili.

FRENCH CJ:   The core of the contention is the – the core of the complaint is the mandated accordance of the sentence with Victorian sentencing practice.

MR BROMWICH:   That is right.  We say that simply cannot stand with what this Court has previously said, and there probably is not much more I can say about that.  In relation to the statistical analysis and objective seriousness, the only additional thing I wanted to tease out – and I partly referred to it in an extended answer to Justice Bell’s question – is that there is a potential slight conflict although I think, properly read, there is no such conflict between what this Court has said on that topic in Hili and what this Court has said in that topic in Barbaro.

If I could just take your Honours to it, I do not believe it is a conflict but I think it requires a careful read.  I have already indicated – or taken the Court to paragraph 48 in Hili and emphasised the use of the word “only” in the third sentence in that paragraph, and I think the emphasis on that word “only” helps to deal with what this Court also said on that topic in Barbaro v The Queen;Zirilli v The Queen (2014) 253 CLR 58, and the particular passage is that at page 74, paragraph 40. What was said at 40 was that:

The setting of the bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases.

Again, to pick up in the last sentence the reference to the application of legal principles, which was the point I was making first out, there is, on one reading, some difference in emphasis between paragraph 48 in Hili and paragraph 40 in Barbaro, and the answer lies in the emphasis on the word “only”, that is, it is acceptable to use sentencing statistics, provided you do not stop there.

BELL J:   That really becomes clearer when one goes on to paragraph 41.

MR BROMWICH:   Yes, that is absolutely right, because the Court is then saying “with the ordinary caution to be applied” and the point I am essentially making here, you still do not have a lack of caution in looking at prior outcomes if you are principally concerned with appellate outcomes, but you need have much less regard or concern with that.  The cautionary note in Hili, which is really picked up in the last sentence of paragraph 53:

Care must be taken, however, in using what has been done in other cases –

which then takes over to 54 and the references to De La Rosa – those concerns within De La Rosa are necessarily lessened, not eliminated, but lessened, if principal focus is had to intermediate appeal court decisions.  Although the dots are not joined up quite as tidily as I am seeking to draw them before this Court today, what we say is that when you look through paragraphs 54, 55, 56 and 57, they encourage a view that the outcome should be one of principal reliance, not just in terms of application of principle, but in terms of prior outcomes upon intermediate appeal court decisions because that will produce a tighter, but still not confining, set of yardsticks. 

It will not in any way restrict independent discretion, but it will help to inform that independent discretion, particularly in the jurisdictions which have become more comfortably wedded to the pre‑Barbaro approach, particularly in Queensland and Victoria, of nominating a sentence, which this Court has said – and it is accepted, of course, as law of the land – cannot and must not be done.

GAGELER J:   You are really not saying anything more than that greater weight should be given to Court of Criminal Appeal decisions than is given to sentencing at first instance?

MR BROMWICH:   Whether I can persuade your Honours to a slightly stronger articulation of that, and the stronger articulation we would seek, with respect, is that it is preferable not to have regard to first instance decisions when there is a sufficient body of intermediate appeal court decisions, but that may be overstating it and making it too strongly. 

What is not a good thing is to have a large shopping list of first instance decisions because they simply favour a particular outcome that someone is seeking.  It is better to have a tighter body of cases, so perhaps somewhere between what I just said and what your Honour just said, which encourages – much in the language, really, of Hili itself, that consistency in federal sentencing is to be achieved through the work of the intermediate courts of appeal, but how is that to be achieved unless that is the primary source, unless that is the source that is perhaps expressed in terms of weight, but it should carry considerably greater weight.  Perhaps that is the way to get there.  If we do not have that, it just becomes a scattergun of what every individual judge anywhere in the country has chosen to do in a given case.

As a DPP, when you are considering appealing, ideally you should be able to look at a case and say we think the result in that was wrong, but there is not a sufficient point of principle here.  There is not a “sentencing standards” thing here, a “sentencing judge was too weighed by a particular subjective circumstance” here, but we will leave that alone because that will just go into history.  The intermediate appeal court decisions are the ones that are going to matter.

That is not what is happening at present.  What is happening now is every time you get a particularly – I am speaking obviously from a Crown perspective, and the defence will have a different perspective – every time you get a very light sentencing result, one that we even say is wrong, straightaway it gets put up at the next sentence, and the next one after that.  We do not want to have to, as Crowns, as DPPs, have to weigh up the consequences if we do not appeal because this will continue to be used against us.

FRENCH CJ:   There is still a threshold question about the Crown appeal, is there not, even with the sort of double jeopardy exclusion around the country?

MR BROMWICH:   We - and I think I can speak with a measure of confidence that this is true of all the DPPs, that very anxious consideration is given to appeals and very few cases even amongst the pool considered to be wrong are appealed.  This Court’s views on that are taken extremely seriously and properly so, I should add, but it becomes a harder task where every poor decision becomes put up with apparent almost equivalent weight. 

So, even if, as Justice Gageler said, the statement from this Court was one to the effect of giving greater weight, that of itself would be useful to encourage a focus on what intermediate appeal courts have done because that really will advance what we really are all about here today which is about achieving better consistency because of the systemic justice that that entails. 

Your Honours, the two remaining points were the issue about whether it is a decision just of the President or that of the Court of Appeal.  We have put what I really wanted to say about that in writing but I can say a little bit more on that unless your Honours would not be assisted by it.  I just do not want to labour a point that you do not really need to hear, but I certainly do not want to lose the point for want of saying something.

FRENCH CJ:   I think we have everything – that is not a guarantee that you will win it.

MR BROMWICH:   Of course, there are no guarantees in this business.  There is nowhere else I can go unfortunately.  Sorry, I meant that entirely flippantly, your Honours.  The last point which we have articulated in the written outline which perhaps I can leave in writing is in relation to the notice of contention.  We have already said why we say that should not be entertained.  Perhaps an additional point flowing from what I have already said today is that what has been put before you is a set of graphs and tables of the very kind which was warned against in paragraph 48 of Hili and if you have that and you have nothing more then that does encourage a grid approach referable only to numbers and that is not something that we say should be entertained. 

But the further point we make is that even if your Honours were minded to entertain the notice of contention and the evidence that goes with it, we point to a separate point of concern in relation to that and that is the basis by which these tables are even drawn up in the first place.  I have spelled that in paragraph 15 of the written outline.  It is essentially that four drugs have been picked, the weight of the heroin has been picked at half and double the amount involved.  In our respectful submission, that is somewhat arbitrary. 

That then half and double quantity is applied to all the other drugs even though the thresholds are different from those other drugs and the last point we make about that is that there is a failure still to recognise the legal constraints on the scope for Crown appeals so that you end up having potentially within that field of cases which are being sought to be used as a yardstick to demonstrate the point about the heaviness or otherwise, and we have our separate point about that, is that it includes decisions which you cannot be confident do not have the vice that Justice Simpson referred to in De La Rosa picked up by this Court in Hili.  I do not think I can articulate that more.

BELL J:   Mr Bromwich, if you were successful, you seek an order setting aside those of the Court of Appeal and a further order that the appeal against the sentence to that court be dismissed?

MR BROMWICH:   Yes.

BELL J:   If you succeeded, it would be because the Court of Appeal approached the determination of the issue before them on a wrong basis.  Would the appropriate ‑ ‑ ‑

MR BROMWICH:   Well, a little more than that.  The whole basis for the appeal as it was brought before that court was that the sentences were out of line with Victorian sentencing practices.  That was the way in which the case was brought.  Certainly there were some subjective factors and I suppose it goes back to the point we make about why it was not Justice Maxwell on his own but why Justices Osborn and Kyrou were in

there as well.  Much of the weight will be that it was one of a number of factors referred to by Justice Osborn, but the thing that really carried the day, we say, was the current sentencing practices in Victoria compared to elsewhere and, once you strip that away, the appeal really had very little in it.

The sentence was undoubtedly stern, but we say there was really nothing wrong with it, unless you get up on that point and, if you cannot get up on that point because it was wrong for the now respondent to succeed on that point, then the appeal simply should have been dismissed.  I cannot take it further than that, and I can see this Court might take a different view.  Thank you, your Honours.

FRENCH CJ:   Thank you, Mr Bromwich.  Yes, Ms Archer.

MS ARCHER:    Thank you, your Honour.  Now, unusually it seems appropriate to start with what is not in dispute.  If we can start in the appellant’s submissions where they identify two issues in paragraph 2, we do not contend that the answer to either of those issues is yes, and we have made that plain in our submissions at paragraphs 23 and 59.  So neither of the two issues identified by the appellant are in dispute.  If we then go to the respondent’s outline of submissions, in paragraph 2 there are three issues identified as being presented in this appeal.  The first and third are not matters of principle.  The second matter is a matter of principle.

BELL J:   I am sorry, are you in paragraph 2 of the hand‑up of your oral submissions?

MS ARCHER:   No, I am sorry, in the respondent’s submissions, the actual ‑ ‑ ‑

BELL J:   I understand, thank you.

MS ARCHER:   My apologies, your Honour.

BELL J:   Yes.

MS ARCHER:   So the Court can see that a) and c) are disputes of fact and b) is a dispute about an issue of principle.  Now, the reason why 2b) is there, as is apparent from its terms, is that it appeared from the appellant’s submissions that what it was arguing was that a court of appeal was bound to have regard to outcomes in other cases unless satisfied the outcome was plainly wrong, and there has been an exchange with Mr Bromwich about that this morning, but that came from paragraphs 22 and 24 of the appellant’s submissions.

The Court will have seen from those paragraphs that what the appellant appeared to be arguing was that it was this requirement to follow outcomes unless satisfied it was plainly wrong.  In paragraph 22, there is a criticism of the court – this is paragraph 22 of the appellant’s submissions – there is a criticism of the court for not making a finding about the decisions of other interstate cases were in any way incorrect, let alone, plainly wrong.  Then, in paragraph 24, the appellant has paraphrased what was said in Hili and, in my respectful submission, in a way that changed the meaning of what was said in Hili.  Then in paragraph 25, there is another reference to:

without any suggestion they are wrong.

So, in identifying as an issue in this appeal in 2b) as the respondent did, it was dealing with what the argument appeared to be.  If the Court goes to paragraph 25 of the respondent’s submissions, it is identified that that is what the appellant appears to be asserting and then that is what is challenged in the submissions that follow.

It seems now, from the appellant’s reply and also from answers to questions from the Court, that the appellant is not saying that – that the appellant is instead saying that the sentences from other cases are part of the yardstick.  If we go to the reply at paragraph 3, the way the appellant is now expressing it is, in effect, that there is a requirement that a court give:

due consideration of the outcomes previously reached, and why –

which was one of our points – as a yardstick.  That is an uncontroversial proposition and there is no dispute about that.

NETTLE J:   Justice Maxwell did not adhere to it, did he?

MS ARCHER:   No, your Honour.

NETTLE J:   Well, that is the point, is it not?

MS ARCHER:   In one sense, yes, because the respondent is not trying to defend the decision of the President or the reasons of the President.  What the respondent is doing at the moment is identifying that there are no issues of principle in dispute.  At the time of the special leave – when special leave was granted – it looked like there was because it looked like the appellant was arguing that courts were obliged to follow the outcomes in other cases unless satisfied they were plainly wrong. 

We now see from the reply that the appellant is no longer arguing that and the appellant is simply saying what is an uncontroversial proposition - that they are a yardstick to which consideration should be had – so that is why, we say, there is actually no longer an issue of principle involved.  But if I can take the Court now to the outline that was handed up on behalf of ‑ ‑ ‑

FRENCH CJ:   In other words, you would accept that the President erred in the proposition that the appellant in the Court of Criminal Appeal was entitled to expect that he would be sentenced in accordance with the Victorian sentencing practices?

MS ARCHER:   Yes, your Honour.  Then if we go to the respondent’s outline of oral submissions in paragraph 6, what we identify there is an issue of principle that could arise on the appellant’s case.  We say it does not arise, but what should a court sentencing a federal offender do if the history in other States is markedly different to what is happening in its own State.  We say that does not arise here on the facts, because we say there was not a disparity.  We say that the cases indicate – even President Maxwell’s table indicates – that there was not this massive disparity.  But if the appellant is right, and there was a disparity, what is a State court supposed to do about that?  On the appellant’s case, that was the situation facing the Court of Appeal, but the appellant does not articulate any arguments as to how that should be resolved.

Now, obviously, consistency in federal sentencing is a desirable aim, but achieving that goal can cause inconsistency in two other respects.  It can cause inconsistency if a State court sentencing a federal offender is required to impose a heavier penalty because it is required to have regard to higher sentences in other States imposed for a Commonwealth offence than what that State court has imposed in its State for Commonwealth offences.  That is one level.  Another level – and this was touched on by Justice Simpson in De La Rosa – is what if achieving federal consistency requires a State court to sentence a federal offender for an offence much more differently than sentencing a State offender in relation to a very similar offence?

GAGELER J:   A similar State offence?

MS ARCHER:   Yes, your Honour.

GAGELER J:   Is that not just a product of applying national legislation?

MS ARCHER:   It is on one level, your Honour, but the question is in terms of the goal of consistency, there are a number of – consistency is a desirable aim of itself, because like cases should be treated alike and we all understand the reasons for that.  Achieving consistency nationally could come at the cost of inconsistency on two other levels, and the Commonwealth Parliament chose a system which would inevitably lead to some inconsistencies.  That was its choice.

BELL J:   Ms Archer, would you need leave to reopen Hili to succeed on this argument? I have in mind paragraph 57 on page 538 of the report, 242 CLR 520.

MS ARCHER:   Did your Honour say paragraph 57?

BELL J:   Yes, at page 538 where it is said:

the need for consistency of decision throughout Australia is self‑evident.

To take up the matter raised by Justice Gageler a moment ago, one may say in a simple sense that possession of heroin under State legislation may be broadly similar to an offence under the Commonwealth Code relating to possession of the same substance but when one speaks of consistency in sentencing one is speaking of consistency in sentencing for the offender and the offence.  I raise these matters because it seems – you say the issue does not arise on your case but to the extent that you invite this Court to consider it, it would seem to have a number of difficulties, including the decision in Hili, the decision in Elias among others, would stand in the way of success.

MS ARCHER:   May I make three responses to that?  Firstly, your Honour, it does not arise in our case.  Secondly, I am not, with respect, inviting the Court to make a decision about it, I am simply articulating the difficulties that could be presented if this is an issue that is going to be discussed in the decision in this case, that it is not simply a matter of saying consistency is a desirable goal and stopping the sentence there.  I am identifying the fact that there are some complexities that are raised in the appellant’s case that have not been ventilated. 

The third matter is, with respect, I do not think it is inconsistent with what is said in Hili – sorry, our submissions are that it is not inconsistent with what is set out in Hili because all Hili is doing, in my respectful submission, is saying that consistency is a desirable goal and when you are sentencing for federal offenders you want to achieve federal consistency.  No argument is taken with that.  But where that consistency is going to compete with the equally desirable aim of achieving consistency at other levels then there may be a balancing exercise and it may be something that the Court has not yet made a decision about.  One of the consequences of the legislative choice which has created differences is that this Court has accepted that there may be differences associated with local factors.

One factor that is often relevant in the assessment of an appropriate penalty is the prevalence of an offence.  That is also relevant in relation to State court sentencing Commonwealth offenders.  Justice Brennan in the case of Leeth referred to that.  If it turns out that these offences are far more prevalent in New South Wales than in Victoria, Queensland and Western Australia, why would that not be something that a Victorian court could not take into account?  Similarly, because of the legislative choice, there may be different State laws that apply that affect the outcome of sentences.

I suspect it is notorious that Western Australia had a system of remissions that were so extraordinary that the amending legislation was called “Truth in Sentencing”.  So again, if there is this local factor that means that what looks like a very long sentence in Western Australia in fact is not, why could not a State court in sentencing a federal offender take those things into account?  The respondent is not urging on this Court any way of resolving those issues.  We simply wish to ventilate that it is not as simple as saying, with respect, we want consistency in federal sentencing when there are all of these other issues at play.

FRENCH CJ:   But this presumably is the platform for an argument.

MS ARCHER:   Well, I would be happy to provide your Honour with an argument, but only if it is something the Court was considering.

FRENCH CJ:   An argument relevant to this appeal.

MS ARCHER:   Pardon, your Honour?

FRENCH CJ:   An argument relevant to the outcome of this appeal.

MS ARCHER:   Let me get back to the substantive argument.  The point of what I was saying earlier is that, from what we have now in the appellant’s reply, there are no issues of principle in dispute.  All we are left with is what this court did, so were Justices Osborn and Kyrou in error firstly, and secondly, if they were, did it matter?

If I can turn to the alleged first error which relates to Victorian sentencing practices, the appellant said that section 5(2)(b) of the Sentencing Act 1991 (Vic) does not apply to a Commonwealth offence. As interesting as it would be to explore whether or not that is correct, it is not necessary to consider that because, on our submission, it cannot be doubted that a State court exercising federal jurisdiction may have regard to its own sentences as well as to the sentences in other jurisdictions. So, simply having regard to its own sentencing practices would be a requirement whether or not there was a piece of legislation that told you to do that.

Despite the way the alleged error is characterised by the appellant – and I am referring now to the top of page 6 of the appellant’s submissions, how they describe the error - section 5(2)(b) does not require the court to do anything more than have regard to current sentencing practices. It does not require the court to sentence in accordance with them.

BELL J: But Ms Archer, when sentencing for a federal offence, the court is required to apply Part 1B of the Crimes Act supplemented by the common law and, to the extent that State laws are picked up, it applies those.  But the statements in the Sentencing Act (Vic) with respect to the purposes of punishment and the matters that the court is to take into account are hardly matters picked up for the purposes of sentencing federal offenders when one has regard to the scheme of Part IB, surely?

MS ARCHER:   We do not argue otherwise, your Honour.

BELL J:   Yes.

MS ARCHER: But the appellants have characterised what the court did as sentencing in accordance with current sentencing practices. Our point is that whatever they did – if the court considered it was required to deal with current sentencing practices, that requirement does not require a sentence “in accordance with”. All it requires is “have regard to”. There is a very long list, as the Court is well aware, in section 5 of the Sentencing Act (Vic) of things that the court has to have regard to and they are not things that the court is required to sentence only in relation to.

So the requirement does not mean that a sentence cannot be imposed outside the range, imposed in comparable cases.  It does not mean that the court cannot decide that there should be an increase or decrease in the level of sentences for particular offences and it must be understood in the context of the proper approach to sentencing, namely, there is no sentencing tariff and that sentencing is an instinctive synthesis of numerous variables.

It is there because there will be some types of offences where it can be said that some offences are more serious than others and in such cases it is desirable that there be a comparison of other cases with an aim of achieving, so far as possible, consistency in outcomes but within the context of the proper approach to sentencing.  That is what “having regard to current sentencing practices” means. 

If it meant anything more, it would mean a court going outside the bounds would have fallen into error. That is not what section 5(2)(b) of the Sentencing Act (Vic) says. It is fair to acknowledge that the President appears to have concluded that simply because the sentence was outside the range it was an error. We do not seek to support that. What we say is that neither of the other two members of the court agreed with that conclusion.

NETTLE J:   What about Justice Kyrou at paragraph 83?

MS ARCHER:   Your Honour Justice Nettle, Justice Kyrou referred to the current sentencing practices but what he did not do was say because it is inconsistent with those there was an error.  He does not say because it was outside the bounds there was an error.  He does not say that the current sentencing practice in Victoria sets the outer and lower limits of the appropriate discretionary range.  What his Honour says was, starting at paragraph 81 – his Honour agreed that the:

sentence is manifestly excessive for the reasons set out by Osborn JA. 

Later, he identified what his Honour meant by that – and this is the last sentence of his Honour’s judgment:

that the impugned sentence must have resulted from the misapplication of principle and thus warrants appellate intervention.

NETTLE J:   You might be right, it is just that 83 really begins with 82 in the first sentence where Justice Kyrou says that he finds Justice Maxwell’s sentencing tables and so forth assistance in effecting the range.

MS ARCHER:   Your Honour, the respondent does not disagree that Justice Kyrou looked at Victorian cases.  The point of distinction is that Justice Kyrou was not saying that is why I am finding error, that on its own is enough to find error and I am misusing the value of comparable cases.  What his Honour says is he agrees with the reasons of Justice Osborn, and Justice Osborn went through an extraordinarily painstaking analysis of the proper approach and limited value and the risks inherent of looking at comparable cases.  Justice Kyrou agrees with that.  Justice Kyrou then adds his Honour’s own warnings about what consistency means and how statistics are to be used that they are a yardstick.  In that context his Honour says they are out of line and that disparity together with the other factors enables a conclusion of error to be drawn.  In our respectful submission, that is the significant point of difference.

With respect, it is difficult – the respondent does not try to support the President’s reasoning.  The President appears to have treated the Victorian cases as setting the upper and lower limits of the bounds of the discretion.  The President appears to have said that because it was out of that range it was wrong and the President appears to have formed the view that the offender had a reasonable expectation.  The respondent does not seek to support any of that.  What the respondent says is that the only thing that can be said about the other two members of the Court is that one of six factors that their Honours took into account was that the sentence seemed heavy compared to Victorian cases.

BELL J:   One issue that it seems to me you need to deal with in this regard is when one looks at Justice Osborn’s analysis his Honour describes the statistical material that the President took into account as:

significantly more helpful than the [more] general data –

that is ordinarily presented to the Court.  That is at paragraph 63.  Then his Honour goes on to discuss the principles and the care that needs to be taken with reception of statistical material of that kind, and then his Honour identifies errors in the primary judge’s approach.  But those are not errors that are said to be errors of sentencing principle and it is not suggested that Judge Tinney mistook the facts or failed to take into account some fact that he should have taken into account. 

So, the reasons that Justice Osborn develops are conclusions that Judge Tinney must have erred because the sentence is manifestly excessive and it is a little difficult to see that his Honour is not reasoning that the sentence is manifestly excessive because the helpful material that has been presented shows that it is out of line with sentencing practice.  Now, that seems to me to be an issue that you need to grapple with.  One comes back to the question that was properly before the Court of Appeal which was has the then appellant, the respondent in this Court, identified House v The King error in the approach of Judge Tinney.

MS ARCHER:   Three responses to that, your Honour, and I will start on the short ones first, because the first response will take a little bit of time. Justice Osborn made a finding of manifest excess, and his Honour says that his reasons for doing that are the six reasons that follow paragraph 77. In my respectful submission, that should be taken at face value. He begins paragraph 77 by saying:

when the combination of matters . . . are taken into account, the sentence . . . [was] manifestly excessive . . . a sentence of a little more than one‑third of the maximum for the offence was manifestly excessive having regard to the following matters in combination.

Justice Osborn is saying this combination is what has caused me to conclude that the sentences are manifestly excessive.  In my respectful submission, that should be accepted as his Honour’s reasons.  The second short point in relation to House v The King error – while Justice Osborn describes it as a manifest excessive residual category of error, in 77(b) his Honour talks about the health of the offender.  His Honour notes that the trial judge was labouring under the mistaken belief that the appellant merely had HIV, whereas in fact he had an AIDS‑defining illness.  In my respectful submission, that is a significant error of fact that his Honour has identified.

KEANE J:   Well, what he says about that is that:

the sentencing judge did not fully acknowledge the seriousness ‑ ‑ ‑

MS ARCHER:   That is right.

KEANE J:   The way you were putting it, it seemed to be suggesting that the primary judge mistook the facts as opposed to the weight or significance to be accorded to the facts.

MS ARCHER:   The way that Justice Osborn describes it is as your Honour has articulated, and it had consequences for the trial judge in that he then discounted the appellant’s belief that he was going to die and discounted his partial motive for having committed the offence.  But if one actually goes to the decision of the trial judge, it is apparent that his Honour was talking about HIV as distinct from AIDS‑related illnesses.  If the Court goes to paragraph ‑ ‑ ‑

BELL J:   At appeal book 79, in paragraph 11, there is some discussion of the history.

MS ARCHER:   Thank you.  It begins at line 31:

you were diagnosed as HIV positive –

Then at line 40 and following –

your HIV status is evidently quite treatable –

and then on ‑ ‑ ‑

BELL J:   Can I just direct your attention at about 33:

There have been some illnesses associated with that condition, with a lengthy inpatient admission back in 2010.

MS ARCHER:   Yes, but that is different, with respect, from saying “AIDS‑defining illness”.  This man’s HIV is now AIDS.  It is a different thing.  Can I also ask the Court to go to – I am sorry, did your Honour ‑ ‑ ‑

BELL J:   Well, Judge Tinney appears to have understood that illnesses associated with the respondent’s HIV condition had resulted in lengthy inpatient treatment.

MS ARCHER:   We accept that, your Honour.

BELL J:   Yes.

MS ARCHER:   But just finally on page 81 of the appeal book, paragraph 15, lines 19 and 20, there is a reference again to the HIV status, and in line 28:

HIV is still subject to much misunderstanding –

So simply this was to make the observation that one thing that Justice Osborn did think was significant was this mischaracterisation of the extent of the offender’s ill‑health, what that meant on his belief and what that would mean in terms of his possible motive.  So, those are the two short answers.  The longer answer takes us to the start of Justice Osborn’s decision.  I am acutely aware of the fact that this Court will have already read these reasons many times.  What I wish to do is simply signpost how the decision progressed.

So if one starts at page 127 of the appeal book, the first thing that Justice Osborn does is sets out the background independently of the President’s decision.  We find out later that Justice Osborn had seen a draft of the President’s reasons which set out all of the facts exhaustively, but Justice Osborn starts on a new page to write his Honour’s own decision.  We then get to page 128 where his Honour sets out the appellant’s case.  On page 130 his Honour sets out the Crown submissions and then goes to the first instance judge’s reasons.

Then on page 133 at the commencement of the analysis – this is at paragraph 63 of Justice Osborn’s decision – his Honour refers to having read the reasons of the President in draft and the analysis.  From then on his Honour says nothing about the reasons of the President, does not endorse them, does not pick them up, does not accept them.  All his Honour goes on to talk about is the analysis.  He is talking about the numbers.  Your Honour Justice Bell referred to the sentence:

It is significantly more helpful than the more general data commonly presented to the Court.

But step back for a moment and look at an example of the material that is commonly presented to the Court, if we go to the Crown tables that were provided to the Court at appeal book 97.  I am hoping that your Honours have the corrected page that in the column for role, next to Lindsay, it is written:

“more than a mere courier” –

Originally – thank you, I am obliged.  So, this was the first table that was provided by the Crown to the Court of Appeal and I am asking the Court to look at this in the context of Justice Osborn’s observation that President Maxwell’s table was significantly more helpful.  The Crown’s table here explains why Justice Osborn made that comment.  It was not to say the table of the President is tremendous, the best thing I have ever seen and I am going to use this as my sole guiding force.  It was to say, look at what we normally get and look at what you normally get.

Nine cases were on this table.  Seven were from New South Wales, one was from Queensland and one was from Victoria.  No head sentence of less than seven years eight months appeared on this table.  These were all cases where the sentences were at the top end of the range.  What the Court was told about them was the drug, the quantity, something about the priors, a description of the role, a very brief description of some subjective factors and what the sentence was.

If we then go to the second table that was provided by the Crown – this is at page 105.  In this table, the Crown added three cases, some of which had lower sentences than the first, and deleted two.  The ones it deleted were the New South Wales cases that were tainted by the approach the New South Wales Court of Appeal had been taking in adopting the Wong guidelines even after the High Court had condemned them.

The heading of this table, at page 105, is “National Sentencing Decisions of Appellate Courts in Commonwealth Prosecutions for Comparable Marketable Quantities from 2008”.  That is the heading.  What you have is 10 cases, a selection of 10 cases.  Now we have five from New South Wales, four from Victoria and one from Queensland.  Some of these cases the Court may consider are of a different nature to the one that was in consideration here.  The first one, for example, was a drug importation by post.  The case of Lindsay which was on the previous table was “more than a mere courier”.  So, that was what Justice Osborn was comparing when he said the President’s table is significantly more helpful.

Having said that, his Honour then immediately went on to note the limitations of the use of statistics and he correctly identified that Hili – sorry, that Barbaro referred to that and his Honour set out the paragraphs.  So, those are the first two paragraphs of the analysis.  I have read the President’s reasons, say no more about them.  I have had a look at the analysis, that is significantly more helpful than what we normally get but these are the limitations.  Then his Honour starts on the top of page 134 with the Crimes Act. 

GAGELER J:   Can I just perhaps go to the end point of his judgment and link it with what you took us to in paragraph 63?  His Honour says that having looked at the President’s statistics ‑ he says in the last sentence of paragraph 63 that those statistics demonstrate:

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

When his Honour at the end of paragraph 77 as the last of the matters which, in combination, led him to his own view of the manifest inadequacy of the sentence, referred to the sentence imposed being heavy when compared with the class of broadly comparable cases identified by the President. Are we to read his Honour as referring to the class of broadly comparable sentencing cases in Victoria?

MS ARCHER:   The answer to that is the respondent does not know.  There is an argument that could be made both ways.  Because of what his Honour says in paragraph 63 it would be fair to assume that when his Honour is talking about comparable cases in 77 his Honour is talking about Victorian cases.  Alternatively, when talking about the class of broadly comparable cases identified by the President, his Honour could be talking about the table which contained cases involving other jurisdictions.

As the Court is aware, part of our proposition is that case showed that the sentence was heavy in respect of all jurisdictions once you actually analyse it, not just Victoria.  The respondent does not seek to urge on this Court that that decision referred to all States.  The more likely interpretation is that it referred to Victorian States but on its face it is ambiguous and I do not – the respondent cannot really advance it beyond what the actual words on the page are other than to offer those observations.

Having identified the legislative framework, in paragraph 66 his Honour then returns to the limitations of the use of statistics.  The significance of this is more to do with the second issue identified by the appellant about the weight‑based error that the appellant attributes to all members of the Court. 

His Honour specifically refers in the indented part, quoting from the case of Markarian v The Queen 228 CLR 357 about the reason why weight is not necessarily going to be a reliable guide. That appears again in paragraph 70 where his Honour specifically notes that this Court’s decision in Wong noted:

it was an error to view the weight . . . as generally the chief factor –

so we have got that coming into it as well.  His Honour throughout these reasons notes what can be masked by the use of statistics, even when some variables are taken into account and eliminated from the equation and that carries all the way through to paragraph 72 onwards where his Honour then notes the proper use that can be put to the statistics, that it can invite scrutiny, it can be an indicator, but it can never be determinative.

When his Honour comes in paragraph 77 to talk about the issues that caused his Honour to conclude there was an error, his Honour is identifying all but one of the relevant factors that applied under the Crimes Act. So at paragraph (a), punishment, section 16A(2)(k), the “role as a courier and his limited financial interest” is (2)(a), paragraph (b) is the antecedents and health, (c) covers contrition, plea of guilty and co‑operation, (d) covers rehabilitation, (e) and (f) are not in the Crimes Act but (e) is that life in custody would be more difficult, and no one would suggest that was not a reasonable consideration and an applicable one, and (f) is that “The sentence imposed was very heavy”.

Then in paragraph 78, his Honour says what his Honour thinks should happen in such a way that it confirms once again that these reasons are his Honour’s own independent views and have nothing to do with the reasons of the President, to the point of making the declaration under section 6AAA.

Can I go back to the respondent’s submissions briefly now, paragraph 52 – start at paragraph 50, my apologies.  So paragraph 50 is the reference to what the appellant had said about disregarding the yardstick effect unless satisfied they were plainly wrong, and the respondent’s response to that is that is not the test.  The respondent’s substantive defence then follows in paragraphs 52 to 56 and it is apparent from this that the respondent is not saying the court was entitled to ignore the decisions of other States, but what the respondent is seeking to do is to contextualise what actually happened here.

It was only one of many factors.  The proper limitations of the comparison were noted and the third is that although the President concluded that the sentences imposed in other States were substantially higher, it is doubtful that that conclusion is borne out by the table and graph his Honour produced.  I would now like to go to that table and graph, particularly the graph.  This is at page 126 of the appeal book.

The respondent’s original sentence is obviously not contained on this graph but it was 102 months.  The lines on the left‑hand column increase by factors of four.  So, where the line is for 100, halfway between that and the next line is where the respondent would fall, just before the 40 per cent mark ‑ he is 38 per cent. 

There are three blue triangles above that.  The one on the far left is Paliwala which is a 2005 decision.  The next one is Mirza, a 2007 decision, and the one that is nearly at the 40 per cent line is Mirzaee, which was a 2004 decision.  All of those are New South Wales decisions.  All of those are tainted by the New South Wales court’s adherence to the Wong guidelines.  That was recognised by the appellant by taking out those cases from its second table and in filing submissions which unfortunately were not reproduced but to which we have referred in our submissions without objection.  My friend has clarified that.  There is a concession that they were taken out.  There is not a concession that they were tainted.

The further submissions that were filed on behalf of the respondent, which are referred to in footnote 51, indicated that they were taken out because that argument had been raised.  If it is necessary, I can take the Court to the paragraphs of those decisions that refer specifically to the Wong guidelines, specifically Paliwala definitely does and Mirza is the other, I think.

So, those are three New South Wales decisions prior to 2008.  The one that is before the 30 per cent marker at 102 is the case of Brink.  Now, in Brink, the sole ground of appeal, the sole ground of appeal in Brink, was that the court had paid insufficient regard to the disability of the offender, not because of some error made at the sentencing process but because of events that transpired later and the Court of Appeal refused leave to rely on that additional material.  So, if we remove those cases from President Maxwell’s table and leave ‑ ‑ ‑

BELL J:   Why would we remove Brink, I am sorry?

MS ARCHER:   Simply because ‑ I am sorry, I spoke too casually, your Honour.  I apologise, this is not the forum for that.  The Court of Appeal in Brink did not consider whether the sentence was excessive or inadequate.  That was not the focus of the appeal and my friend has made much of the fact that you cannot rely on decisions, although I am going to argue that proposition later, that you cannot rely on decisions that have not had a Court of Appeal ‑ ‑ ‑

BELL J:   I understand the point you make.

MS ARCHER:   Thank you.  If that ‑ ‑ ‑

BELL J:   Can I suggest it is difficult when one is looking at material which is no more than a statistical account of outcomes to then say, well, let us take this one out because if you in fact go behind and work out which case it was, you will discover that the Court of Appeal did not really come to grips with where it stood in terms of whether it was excessive or inadequate.  I mean, there seems to me to be a difficulty with that approach, Ms Archer.  I mean to the extent this is relied on to establish what sentences had been imposed on people convicted of offences as couriers with quantities of drugs either half as much or twice as much as that involved in this case, then it stands or falls for that information surely.

MS ARCHER:   No disagreement in relation to any of that, your Honour Justice Bell.  What I am addressing at the moment is paragraph 55 of our submissions which is that:

although Maxwell P considered that the sentences imposed in New South Wales, Queensland and Western Australia were substantially higher than those imposed in Victoria, it is doubtful that that conclusion is borne out –

by his Honour’s graph, when one bears in mind the fact that the Crown had removed from its second table those New South Wales cases.

FRENCH CJ:   So the statement about sentencing in accordance with Victorian practice did not take him out of the sphere of practice in other States because the materials did not indicate when properly distinguished that there was relevantly a different practice.

MS ARCHER:   That was our second point.  So the first point is, are Justices Osborn and Kyrou tainted by the reasoning of President Maxwell, and the second point is, if they were, does it matter.

FRENCH CJ:   Well, this is the, if they were, does it matter point, is it not?

MS ARCHER:   Yes, your Honour.

FRENCH CJ:   It goes also to ‑ ‑ ‑

MS ARCHER:   The notice of contention.

FRENCH CJ:   ‑ ‑ ‑ in a sense, to the President’s reasoning.

MS ARCHER:   Yes, it does, but there are other difficulties with the President’s reasoning which is why ‑ ‑ ‑

FRENCH CJ:   But in terms of the core error that is relied upon by the Crown.

MS ARCHER:   Yes, your Honour.

BELL J:   Let us accept for the present that properly understood the statistical material did not show the stark difference between sentencing practice in Victoria and in other States that the President identified at appeal book 112, paragraph 8.  Unless you can show that the statistical material supported a conclusion, not that this was a severe sentence but that this was such an outlier that it bespoke misapplication of principle by Judge Tinney, where does this argument get you?

MS ARCHER:   The respondent is not arguing that these statistics prove – all of the statistics in the notice of contention prove that the sentence was manifestly excessive.  That is not the respondent’s argument.  The respondent’s argument is that the statistics in the notice of contention demonstrate that it was open to Justices Osborn and Kyrou to reach a decision, for the six reasons that their Honours identified, that the sentence was manifestly excessive and that, had regard been had to sentences around Australia, that sixth reason, that the sentence was heavy, would have been true.

BELL J:   I come back to the matter I took up with you earlier.  Save for your assertion that Justice Osborn identified an error in fact‑finding relating to the health status of the respondent, the other factors are factors which suggest reasons for the conclusion of manifest excess, but one has to come back to the question of how is it that their Honours concluded that a sentence of this length with this non‑parole period was outside the range of discretion to Judge Tinney unless it be, as you say, acceptance that Justice Osborn considered that his Honour had made a mistake with respect to the facts?

MS ARCHER:   Probably one answer to that, thankfully this time, your Honour.  What Justice Osborn and Justice Kyrou were doing was using their accumulated wisdom and experience to get a sense of whether this decision was manifestly excessive.  That did not require the sentence to be outside any range.  That did not require it to be wildly outside any range.  What it required was their instinctive sense that, for what they would consider this crime deserved, some error of principle must have occurred and, using their accumulated wisdom and experience and looking at the six factors that they identified, they concluded that there must have been an error, and the factors were significant ones.  A plea of guilty is significant.  Some prospect of rehabilitation is significant.  Contrition, co‑operation and AIDS, they are all significant.

Now, one has to accept that general deterrence is going to be a predominant sentencing consideration in offences of this type.  One has to accept that the weight of the drug is going to be very significant.  But one cannot ignore the other very significant considerations that fed into their Honours’ considerable experience and wisdom.

What the respondent says is Justice Osborn - in fact, all three members of the Court of Appeal explained why they reasoned the way they did and President Maxwell’s reasons we do not seek to defend.  But Justice Osborn explained his Honour’s reasons and his Honour’s reasons were these six. 

Can I turn briefly to the second alleged error which is that the weight was used as the dominant means of determining objective seriousness?  The appellant has alleged in paragraphs 31 to 33 of its submissions predominantly, but also I would refer to paragraphs 32, 35 to 37 and 40, that the Court of Appeal as a whole treated the weight of the drug as the dominant means of determining the objective seriousness and that the use of statistical analysis became a guiding force for the outcome of the appeal. 

That is discussed by the respondent in its submissions in paragraphs 60 to 73.  But our primary response is that the appellant incorrectly attributes the reasoning of President Maxwell to the other two members of the Court of Appeal.  As we have set out in our outline we make, in essence, four points.  The first of those is Justice Osborn and Justice Kyrou distanced themselves from the President’s reasoning in every respect.  It is almost impossible to imagine how their Honours could have been clearer in distinguishing themselves from the President’s reasoning. 

Secondly, their Honours were alive to the dangers and the limitations.  I have already taken the Court to the reference in Justice Osborn’s decision about what was said in Markarian about giving a small quantity of drug to an infant and about what the Court said in Wong about weight not being the dominant factor.  The other thing is unlike President Maxwell this was only one of six reasons.  That is all I wanted to say in relation to that point, the rest of it is dealt with in the written submissions. 

May I now turn to the notice of contention and deal with the respondent’s – the appellant’s objection to that first?  In paragraph 10 of the reply, the prosecution contends that it is not open to the respondent to assert that the original sentence was heavy compared to sentences imposed in all jurisdictions, not merely in Victoria because it is says that this is a change in stance.  That is paragraph 10 of the reply. 

Now, it says this because it says that in the Court of Appeal the respondent argued that there is a stark difference between sentencing practices in Victoria and that in other States for importation offences involving comparable quantities and cites as a source the decision of the President at paragraph 8. 

The primary response to that is that the two propositions are not inconsistent.  A sentence may be heavy compared to both categories even if one is heavier than the other.  If, for example, all the sentences in Victoria were two years and all of the sentences in New South Wales were four years and this sentence was six years, you could make both propositions good. 

The second point, as part of that primary response, is that it is bound up in two aspects of the appeal proper.  The first aspect in which it is bound is our submission in paragraph 55 that it is doubtful that the President’s conclusion was borne out by the President’s table.  The other aspect is what is said by the appellant in its submissions at paragraph 17(a), if I may invite the Court to go to that.  In 17(a) of the appellant’s submissions, the appellant says:

even with all the matters identified by Osborn JA, the original sentence of the respondent was within that imposed in sufficiently like cases in other jurisdictions –

No analysis is provided for that proposition, no evidence is provided for that proposition, but by objecting to the notice of contention, the appellant is saying we are going to assert that the original sentence was within a range, compared to all States, and you may not say otherwise.

FRENCH CJ:   This was not material before the Court of Appeal?

MS ARCHER:   This material was not before the Court of Appeal, your Honour, but the issue was.  The Crown put forward sentencing material to the Court of Appeal which referred to other States and made submissions about the sentence not being out of line with that material.  All of the material that is in the notice of contention has been sourced from the appellant, and if one considers the various permutations, in my respectful submission, one only gets to the point of wondering whether this material should be allowed in is if the respondent’s contention is correct. 

If the respondent’s contention is wrong, it makes no difference, but if the respondent’s contention is correct, and sentence was in fact heavy compared not only to Victorian cases, but compared to all cases, then what Justices Osborn and Kyrou did by regarding only Victorian cases made absolutely no difference.

BELL J:   This is an appeal from the Court of Appeal.  In the Court of Appeal, it appears that it was put on the respondent’s behalf that there is a stark difference between sentencing practice in Victoria and in other States for importation offences involving comparable quantities, that submission presumably being advanced to invite consideration to the Victorian sentencing practice that one sees explicitly in the President’s reasons and perhaps equally in the reasons of Justices Osborn and Kyrou. 

If the appeal were successful, the Director argues the appropriate course would be for this Court to simply make orders dismissing the appeal to the Court of Appeal.  Another approach would be to remit the matter to the Court of Appeal for it to assess the appeal by reference to correct principle.  In that respect, the material that you rely on in your notice of contention may have some significance.  I am not expressing a view about that, but it is just rather difficult to see how it can inform this Court’s determination of the appeal.

MS ARCHER:   Firstly, your Honour, the Crown did make a submission that the appeal should be dismissed if its grounds were upheld.  As we have said in our submissions that would deprive the offender of his right to have an appeal according to law, him having been granted leave to appeal.  So irrespective of the view that this Court takes of the notice of contention, in my respectful submission it would not be appropriate to simply dismiss the appeal. 

In relation to the submissions below, the prosecution has taken from President Maxwell’s reasons a sentence characterising or summarising his Honour’s perception of the submissions that were made below but no context is provided for that.  This Court has not been told whether or not there was a submission made about the Wong guidelines infecting New South Wales or whether or not there were submissions made about remissions affecting the sentences in Western Australia.  So that characterisation by the President is uncontextualised. 

Thirdly, in relation to the material, we certainly consider that it has – if leave was granted – a limited value.  We do not say that the material could prove manifest excess.  What we say is that it can prove that one part of the reasons of Justices Osborn and Kyrou did make a difference.  That is the sole point of it. 

We appreciate this Court is not a sentencing court and we appreciate the obstacles in our path.  But what has been presented, or what we seek to present, is material that has been sourced from the Commonwealth and that is of a completely different quality to the sorts of statistics that were under consideration in the case of Wong. 

In Wong, the Court was talking about how useless it was – if I can use that expression – to have a broad range of Commonwealth offences and extract a very small sample space of 20 to 30 cases and seek to draw any meaningful conclusions from them.  Here, there are 85 cases, all of which contain common attributes.  So, again, not suggesting that they are all necessarily comparable but some of the variables have been removed and the - my apologies - the comparable attributes – all of them were sentences imposed in the last five years.  So that eliminates any concerns about New South Wales and Wong and Western Australia and truth in sentencing.

For importing a border‑controlled drug, obviously, in excess of the marketable quantity but less than the commercial quantity, obviously, four drugs were picked - I accept that the appellant has correctly characterised that as arbitrary but they are, in this Court’s experience, the more common – involving only one type of drug – and that was done, obviously, because when there are multiple drugs involved, that tends to increase the seriousness of the offence even if the drug weight is aggregated. 

So, in fairness, let us put them off to one side so we do not get confused. Pleaded guilty – the person who was a courier. These are listed in paragraph 77 of our submissions, I should have said. In order to make the table manageable all of the Court of Appeal cases meeting those characteristics were included because the number was small. But in relation to Court of Appeal and first instance cases, an arbitrary – yes – cut‑off figure was chosen of half the drug weight possessed by the respondent to double. We accept that it is arbitrary but having a meaningful number was more important – 85 cases.

NETTLE J:   Just to take up Justice Bell’s point, if the matter were to go back for resentencing, obviously this material would be relevant.  At the moment, as I understand it, you are putting it forward to say to the extent that Justices Kyrou and Osborn may have taken into account what I will call an irrelevant consideration, namely that there was a large disparity between Victoria and other States, nonetheless it made no difference because in truth there was no disparity.  Is that it?

MS ARCHER:   If I may recharacterise that slightly?  If the error made by Justices Osborn and Kyrou was not finding there was a disparity but in failing to have regard to other States, for saying the sentence was heavy compared to this rather than saying the sentence was heavy compared to all of this ‑ ‑ ‑

NETTLE J:   Okay, relying on that qualification and assuming for the sake of argument that the material that you are seeking to adduce shows what you say, namely that there is no relevant difference, really does not get over the difficulty, does it, that ex hypothesi each of those judge’s reasoning was informed by an error in that they believed that there was a large disparity between Victoria and other places.  We do not know what the result would have been had they known that the position was as you say this material would disclose.

MS ARCHER:   Our response to that, your Honour, comes back to what we say Justice Osborn’s reasons were and how his Honour articulated them and his Honour said that he thought an error must have occurred because of his accumulated wisdom and experience and these were the six factors that caused him to reach that view.  The six of those factors were simply that the sentence was heavy and if we assume the more likely alternative, heavy compared to Victorian cases.

So if it was an error to not have regard to other cases, had that happened, it still would have been heavy.  It was the heaviness that was the sixth factor, not where the heaviness came from.  I perhaps have not made that particularly clear.

NETTLE J:   No, I think I understood.  Thank you.

FRENCH CJ:   Just bear with me.  The Court is of the view that we should not receive the affidavit.

MS ARCHER:   May I deal then with one point made by my learned friend about first instance decisions and the value of first instance decisions, simply because it is something that is of some significance.
           In the case of Hili at paragraph 54, the Court referred with approval to what Justice Simpson had said in Director of Public Prosecutions (Cth) v De La Rosa, which the media‑neutral citation for that is [2010] NSWCA 194, and your Honours will see that part of what was extracted by this Court in Hili was a reference to not only the accumulated experience and wisdom of appellate courts, but also that of first instance judges.

My friend also made the observation that one should really only be looking at appeal cases because with first instance decisions, with the Commonwealth’s self‑imposed restraint on appealing, you really need to be a bit concerned about first instance decisions.  Turn that to the other side of the coin and look at appeal decisions.  If the residual category of House v King is the point in principle, a court of appeal will not interfere if it thinks the sentence was wrong.  It will only interfere if it thinks it was manifestly wrong. 

Some of the cases on President Maxwell’s table fell into that category.  The case of Lau, for example, was a case – and I am going from memory here – in which the Court of Appeal said the sentence was stern, but not so stern as to be manifestly excessive.  That is the first point to be made about appeal cases.

The second point to be made is that there are less of them and, as Wong pointed out, small sample spaces are not conducive to useful outcomes or value.  The third point to be made about it is, if you are relying on appeal cases and if you are relying on the parties to bring them to you,

you end up with the sorts of tables that were produced to the Court of Appeal in this case, where you have the Crown putting forward tables headed “National Sentencing Decisions of Appellate Courts in Commonwealth Prosecutions for Comparable Market Quantities from 2008” at page 105 of the appeal book, which has 10 cases on it, even less than the actual number.  May I just have a moment?  Thank you, your Honour, those are our submissions.

FRENCH CJ:   Yes, thank you, Ms Archer.  Yes, Mr Bromwich.

MR BROMWICH:   Only very briefly, your Honours.  A point was made – and I am not into scoring points on this – but that there had been some change in position between our original submissions and those in reply.  But paragraph 22 of our submissions in the second sentence really contains the same substance as what we said in reply, and perhaps to some extent that second sentence in paragraph 22 is a better way of expressing what I was trying to say in answer to a question from the Chief Justice about the meaning of the last sentence in paragraph 57 in Hili, particularly if the language is softened to a reference to no compelling reason for disregarding interstate decisions.  In other words, it falls within the pool of yardstick sentences.

The second point is a slightly more abstract one but, I think, briefly worth making and that is a concern was expressed about an emerging problem of intrastate inconsistency between Commonwealth sentences and State sentences for what are said to be similar offences. 

The two things to note in that regard are that when we first started out at Federation and, indeed, right up to the 80s really, right through to the late 80s, sentencing was really done on a State‑based system and intrastate consistency was the principal concern. But once Part 1B came in 25 years ago the focus shifted towards Commonwealth sentencing as a distinct class of sentencing and the adherence to or preference for intrastate or intra‑territory, for that matter, sentencing gave way to a national consistency culminating, of course, in this Court’s decision in Hili. 

The second is that the problem probably stands to be overstated in what my learned friend had to say because the Criminal Code, although intended to create the first stepping stone to a national criminal legislation, criminal offence regime, simply has not been realised and the Criminal Code now represents a whole set of offences that are so different from State offences even in areas like drugs let alone other areas that they are just two different systems really and that concern is really much more theoretical than real.  But they were the only points I had on this, unless there was anything else that I could say to assist the Court.

FRENCH CJ:   Yes, thank you, Mr Bromwich.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 12.12 PM THE MATTER WAS ADJOURNED