Wong v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,Gummow,Hayne JJ,Kirby J,Callinan J
• Judgment Date: 15 November 2001
• Neutral Citation: 2001-1115 HCA D,[2001] HCA 64
• Docket Number: S193/2000
• Court: High Court
• Date: 15 November 2001

[2001] HCA 64

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ

S193/2000

S198/2000

Tak Fat Wong

Appellant

and

The Queen

Respondent

Jackie Kai Chu Leung

Appellant

and

The Queen

Respondent

Representation:

J Basten QC with N J Williams for the appellant (instructed by Legal Aid Commission of New South Wales)

P S Hastings QC with F A Veltro for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with M J Leeming intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor).

B M Selway QC, Solicitor-General for the State of South Australia with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia).

M G Sexton SC, Solicitor-General for the State of New South Wales with K M Guilfoyle intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales).

Constitution, s 77(iii).

Crimes Act 1914 (Cth), s 16A.

Customs Act 1901 (Cth), s 235(2)(c)(ii). Judiciary Act 1903 (Cth), s 68.

Criminal Appeal Act 1912 (NSW), ss 5D and 12.

Wong v The Queen Leung v The Queen

Criminal law — Sentencing — Federal offences — Guideline judgments — Appellants convicted of being knowingly concerned in the importation of narcotics — Whether Court of Criminal Appeal erred in failing to give adequate reasons for increasing sentences imposed by trial judge — Whether Court of Criminal Appeal erred in disturbing sentences without identifying a relevant error — Whether Court of Criminal Appeal erred in failing to take adequately into account the nature of a prosecution appeal — Whether Court of Criminal Appeal erred in publishing ‘quantitative guideline’ – Whether such guidelines inconsistent with applicable legislation — Matters to which court to have regard when passing sentence — Significance of weight of narcotics — Whether ‘two-stage’ approach to sentencing open — Whether publication of prescriptive table of sentences within jurisdiction or power of Court of Criminal Appeal when exercising federal jurisdiction.

Constitutional law — Federal legislation providing for sentencing of convicted federal offenders — State court of criminal appeal publishes ‘quantitative guidelines’ – Whether ‘promulgation’ of guidelines incompatible with the exercise of federal jurisdiction by State court — Whether incompatible with decision of a ‘matter’ within Ch III of the Constitution — Whether inconsistent with terms of federal legislation applicable to the case.

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of New South Wales dated 16 December 1999.

3. Remit the matter to that Court for further hearing and determination conformably with the reasons of this Court.

1 Gleeson CJ. The Court of Criminal Appeal of New South Wales allowed appeals by the Commonwealth Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against sentences imposed upon the present appellants by Judge Davidson in the District Court, following their conviction, after trial, for being knowingly concerned in a heroin importation 1. The question for decision by this Court is whether the Court of Criminal Appeal was in error in concluding that the sentences imposed by Davidson DCJ were manifestly inadequate, and in fixing heavier sentences.

2 The Court of Criminal Appeal was composed of five, rather than the usual three, members, because the Court had been given notice that the Commonwealth Director of Public Prosecutions would urge it to publish a ‘guidelines judgment’ in relation to heroin importation. What that involved will be examined below. The Court was unanimous in its conclusion that the sentences imposed by Davidson DCJ were manifestly inadequate, that appellate intervention was required, and that heavier sentences should be imposed. The maximum penalty was imprisonment for life. Davidson DCJ had sentenced each offender to imprisonment for 12 years with a non-parole period of 7 years. All five members of the Court of Criminal Appeal agreed that those sentences should be quashed, and that each offender should be sentenced to imprisonment for 14 years with a non-parole period of 9 years.

3 The Court of Criminal Appeal was divided on whether it was appropriate to publish a guidelines judgment. Four members of the Court (Spigelman CJ, Mason P, Sperling and Barr JJ) thought it was. Spigelman CJ, who delivered the principal judgment, set out guidelines 2. Simpson J thought it undesirable to publish guidelines for two reasons: first, the proposed guidelines related to people involved at a lower level in the scheme of importation than the two offenders; secondly, the examination of sentencing patterns showed that sentencing was already consistent, and at a suitable level. However, she agreed with the disposition of the appeals in relation to each offender, and with the orders proposed by Spigelman CJ 3.

4 Most of the argument in this Court was addressed to the subject about which the members of the Court of Criminal Appeal were divided: the guidelines. Indeed, the grounds of appeal were addressed exclusively to the guidelines, and set out a number of reasons in support of a conclusion that they were either beyond power, or involved an improper or inappropriate exercise of

power. Such was the concentration upon the guidelines in this Court that there was no examination, either in written submissions or oral argument, of the reasons for sentence given by Davidson DCJ. Yet, in order to satisfy this Court that the appeals to it should be allowed, and the decision of the Court of Criminal Appeal set aside, the appellants must show that the Court of Criminal Appeal was in error in relation to the matter about which it was unanimous. As the concurrence of Simpson J in the ultimate decision shows, it is not necessary to agree with the decision to formulate guidelines to reach the conclusion that the appeal under s 5D should have been allowed. The grounds of appeal in this Court appear to have been framed upon an assumption which may ultimately be found to be correct; but which is not self-evident. A successful attack upon the decision to publish guidelines does not necessarily mean that the decision to uphold the prosecution appeal against leniency was affected by error. Accordingly, it is necessary to examine the reasons of the Court of Criminal Appeal for its decision to allow the appeal under s 5D, and the role of the guidelines in those reasons. It is convenient to begin by noting how it was that the matter of guidelines arose

The idea of guidelines

5 The expressions ‘guidelines’ and ‘guidelines judgments’ have no precise connotation. They cover a variety of methods adopted by appellate courts for the purpose of giving guidance to primary judges charged with the exercise of judicial discretion 4. Those methods range from statements of general principle, to more specific indications of particular factors to be taken into account or given particular weight, and sometimes to indications of the kind of outcome that might be expected in a certain kind of case, other than in exceptional circumstances.

6 One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.

7 Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice. The Judicial Officers Act 1986 (NSW) identifies sentencing consistency

as a legislative objective. That Act established the Judicial Commission of New South Wales to monitor sentences and disseminate information about sentences ‘for the purpose of assisting courts to achieve consistency in imposing sentences’ (s 8). How does collecting and disseminating information about sentences help to fulfil the statutory purpose? The obvious legislative assumption is that knowledge of what is being done by courts generally will promote consistency. That assumption accords with ordinary practice. Day by day, sentencing judges, and appellate courts, are referred to sentences imposed in what are said to be comparable cases. There will often be room for argument about comparability, and about the conclusions that may be drawn from comparison. But sentencing judges seek to bring to their difficult task, not only their personal experience (which may vary in extent), but also the collective experience of the judiciary. Communicating that collective experience is one of the responsibilities of a Court of Criminal Appeal

8 One of the reasons for giving a Court of Criminal Appeal jurisdiction of the kind conferred by s 5 of the Criminal Appeal Act is to secure consistency in sentencing 5. In R v Osenkowski 6, King CJ, in a passage that has been quoted with approval many times, said:

‘The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for...