HCA: consistency in sentencing Federal offences

The Queen v Pham [2015] HCA 39 (4 November 2015)

I refer you to the High Court judgment summary and the decision of the court that the Court of Appeal in Victoria erred in taking into account the sentencing practices in Victoria to the exclusion of other jurisdictions.

In particular the approach as exposed by French CJ, Keane and Nettle JJ:

[28]      Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:

(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently[19].

(2) The consistency that is sought is consistency in the application of the relevant legal principles[20].

(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts[21].

(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form[22].

(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided[23].

(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so[24].

(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle[25].

David Cormack – Brisbane Barrister & Mediator


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