The Queen v Pham

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Keane,Nettle JJ.,Bell,Gageler JJ.
• Judgment Date: 04 November 2015
• Neutral Citation: [2015] HCA 39
• Docket Number: M82/2015
• Date: 04 November 2015

[2015] HCA 39

HIGH COURT OF AUSTRALIA

French CJ, Bell, Gageler, Keane and Nettle JJ

M82/2015

The Queen (Cth)

Appellant

and

Vu Lang Pham

Respondent

Representation

R J Bromwich SC with D D Gurvich for the appellant (instructed by Commonwealth Director of Public Prosecutions)

G A Archer SC with M D Phillips for the respondent (instructed by Victoria Legal Aid)

Crimes Act 1914 (Cth), Pt IB.

Criminal Code (Cth), s 307.2.

Judiciary Act 1903 (Cth), s 68.

Sentencing Act 1991 (Vic), s 5(2)(b).

The Queen v Pham

Criminal law — Sentencing — Federal offences — Consistency — Current sentencing practices — Whether sentencing courts to have regard to current sentencing practices throughout Commonwealth.

Criminal law — Appeals against sentence — Manifest excess or inadequacy — Sentencing statistics — Drug importation offences — Whether permissible to assess current sentencing practices by statistical analysis of correlation between sentence and quantity of drug imported.

Precedent — Intermediate appellate courts — Use of sentencing decisions of intermediate appellate courts.

Words and phrases — ‘consistency’, ‘courier’, ‘current sentencing practices’, ‘statistics’, ‘yardstick’.

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 September 2014.

3. Remit the matter to the Court of Appeal for determination.

1 French CJ, Keane and Nettle JJ. Upon pleading guilty before a judge of the County Court of Victoria (Judge Tinney) to one charge of importing a marketable quantity of a border controlled drug, namely, heroin, contrary to s 307.2(1) of the Criminal Code (Cth), the respondent was convicted and sentenced to eight years and six months' imprisonment with a non-parole period of six years.

2 On appeal to the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Osborn and Kyrou JJA), the sentence was set aside and the respondent was re-sentenced to six years' imprisonment with a non-parole period of four years.

3 By special leave granted on 15 May 2015, the Commonwealth Director of Public Prosecutions appeals to this Court on grounds that the Court of Appeal erred in law by:

• (1) determining that the respondent should be sentenced in accordance with current sentencing practices in Victorian courts, to the exclusion of sentencing practices throughout the Commonwealth; and

• (2) adopting an impermissible statistical analysis of comparable cases to determine the objective seriousness of the subject offence.

The facts

4 The respondent was born in Vietnam and migrated to Australia with his parents when he was still a child. He left home after completing year 9 at high school and was introduced to illicit drugs. Thereafter he struggled with drug dependency issues up to the time of the subject offending.

5 At the time of sentencing, he had prior convictions for possession and use of drugs, and for offences of dishonesty. He also had a prior conviction for trafficking heroin, which dated back to 1996. On that occasion, he had been released on a community-based order for 12 months, on condition that he perform 40 hours of unpaid community work.

6 In February 2013, the Australian Federal Police began investigating drug importation activities connected with Anh Lan Vo. They believed that Vo was responsible for organising couriers to transport drugs from Vietnam to Australia and, subsequently, organising the trafficking of those imported drugs.

7 During the investigation, the police lawfully intercepted telephone conversations, to which Vo was a party, which disclosed that Vo had facilitated the purchase of airline tickets in the name of the respondent. Police believed that Vo and her associates had recruited the respondent to bring drugs from Vietnam to Australia.

8 On 4 February 2013, the respondent was issued with an Australian passport by the Department of Foreign Affairs and Trade and, on 6 February 2013, a Vietnam Airlines ticket for return travel from Melbourne, departing Melbourne on 7 February 2013, was issued in the respondent's name. The respondent was originally set to return on 7 March 2013 but that was subsequently altered to 15 March 2013.

9 The Vietnam Airlines flight arrived at Melbourne Airport on Friday, 15 March 2013 with the respondent on board. Officers of the Australian Customs and Border Protection Service received information from the captain and crew that the respondent had required medical attention during the flight for a potential drug overdose, and that a crew member had found two clear plastic packages containing white powder in a bathroom that the respondent had used. Customs officers detained the respondent, who admitted under caution to having ingested heroin whilst on board the flight, that the packages were his and that he guessed that they contained heroin.

10 Subsequent testing established that the packages contained heroin mixed with caffeine and that the weight of pure heroin was 577.1 grams. A marketable quantity of heroin is between two grams and 1.5 kilograms 1.

11 The respondent was committed by way of straight hand-up brief on 10 July 2013, after which he entered a plea of guilty to the sole charge on the indictment.

The judgments delivered in the Court of Appeal

12 Each member of the Court of Appeal delivered separate reasons for judgment. Maxwell P gave the leading judgment. Near to the outset of his Honour's reasons, he said that ‘the [respondent] pleaded guilty in the reasonable expectation that he would be sentenced in accordance with current sentencing practices in Victorian courts’ 2. His Honour annexed a statistical analysis of the results of 32 sentencing decisions of Australian intermediate appellate courts for offences involving a marketable quantity of a border controlled drug in which the accused was a ‘courier’, had pleaded guilty and had no relevant prior convictions. The presentation included a calculation of the quantity imported

expressed as a percentage of the commercial quantity for each of the different drugs imported (without distinguishing between drugs and precursors) and ranked the cases according to the percentage of the commercial quantity for the given drug in each case.

13 In a further attachment, his Honour presented a graph which plotted what was described as the correlation between the head sentence imposed (in months) and the quantity of the drug imported as a percentage of the commercial quantity, with the results shown separately for Victoria alone and then by way of comparison for all other States taken together.

14 Based on those analyses, his Honour concluded that the sentences imposed in New South Wales, Queensland and Western Australia were substantially greater than sentences imposed in Victoria for offences involving similar quantities of drugs; that the sentence imposed on the respondent was ‘well outside the range indicated by Victorian practice’; and that, because the respondent would have pleaded guilty with the ‘reasonable expectation’ that he would be sentenced in accordance with current sentencing practices of Victorian courts, the appeal had to be allowed 3.

15 Osborn JA observed in his reasons for judgment that an analysis of sentencing statistics by reference only to the weight of the drug imported is at risk of masking differences with respect to other aspects of the culpability of the offender, such as the role of the offender, the relative extent to which the offender stood to profit from the offending and the purpose of the importation. His Honour also noticed that such an analysis may mask significant differences between the personal circumstances of the analysed offenders and thus, as was observed in Wong v The Queen4, a statistical analysis of sentences for an offence which encompasses a very wide range of conduct and criminality is fraught with problems, especially if the number of examples is small. Osborn JA was persuaded, however, that the analysis undertaken by Maxwell P was relevant. His Honour observed that ‘[i]f a sentence appears to be outside the range ordinarily imposed in generally similar circumstances, that fact invites very close scrutiny of the individual case. The analysis undertaken by the President demonstrates that this is such a case’, albeit that ‘other sentences cannot be definitive of error’ 5. His Honour then turned to a detailed consideration of the

respondent's individual circumstances and concluded that, in view of the weight of the drug involved and the respondent's individual circumstances, the sentence imposed in the County Court was manifestly excessive.

16 Kyrou JA stated that the statistics set out in the attachments to Maxwell P's judgment established that the impugned sentence was out of line with current sentencing practices in Victoria. That factor, taken together with the other considerations to which Osborn JA referred, satisfied him that the subject sentence must have resulted from such a misapplication of principle as to warrant appellate intervention.

Current sentencing practices

17 The Director of Public Prosecutions submits that Maxwell P erred in holding that the respondent was entitled to expect that he would be sentenced in accordance with current sentencing practices in Victoria as opposed to the relevant range of sentences established across all States and Territories.

18 That contention should be accepted. As Hili v The Queen6 made clear, where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.

19 It follows that to approach the sentencing task on the basis...