Consistency in sentencing is an important objective of the Australian criminal justice system – after all, it is unfair for some offenders to be given lenient penalties while others are given much harsher sentences for similar crimes.
But statistics suggest that the sentences imposed for various Commonwealth offences vary significantly across the country – until now.
R v Pham
In the recent case of The Queen v Pham , the High Court delivered a long-awaited judgement about consistency in sentencing for Commonwealth offences, especially those contained in the Criminal Code Act 1995 (‘the Code’), such as drug importation cases.
In March of 2013, Vu Lang Pham swallowed packages containing 577.1 grams of pure heroin before boarding a plane from Vietnam to Australia. While in the air, some of the bags leaked causing Pham to suffer an overdose. He was treated by cabin crew and survived – but two bags of heroin were found in the bathroom.
He was originally given a ‘head sentence’ – or total sentence – of eight years and six months imprisonment, with a six-year non-parole period; meaning he would have to spend six years in prison before being eligible to apply for release.
He appealed his sentence to the Supreme Court of Victoria on the basis that it was manifestly excessive.
Supreme Court of Victoria
Pham’s appeal to the Victorian Supreme Court was upheld – his head sentence was reduced to six years and his non-parole period to four-years.
In formulating this sentence, President Maxwell reviewed the results of 32 similar cases decided in Victoria. He attached a summary of those cases to his judgment, together with a graph depicting the correlation between the head sentence and the amount of drugs imported.
But Maxwell went a step further than this, comparing the Victorian sentences to those handed-down in other Australian jurisdictions. That comparison showed Victorian penalties to be consistently more lenient than those in other states and territories. On that basis, Maxwell concluded that Pham was entitled to expect a sentence that was consistent with those imposed in Victoria, rather than across Australia generally.
The Crown appealed the judgment to the High Court of Australia.
High Court Appeal
On appeal, the High Court found that Judge Maxwell’s decision to determine the adequacy of Pham’s sentence by reference to Victorian cases was an error of law, and that sentences for Commonwealth offences should be determined by reference to the national sentencing regime contained in the Crimes Act 1914 (Cth) (‘the Act’) and established sentencing principles, not by the practices, trends or statistics of individual states and territories.
Section 16A of the Act requires courts to consider a range of matters when deciding an appropriate sentence, including:
- The nature and circumstances of the particular offence,
- Any injury, loss or damage resulting from the offence, and
- The degree to which the person has shown contrition for the offence
In upholding the Crown’s appeal and remitting the case to the Court of Appeal for determination, the High Court considered a range of established principles, including:
- That similar cases are to be treated similarly, and different cases are to be treated differently; Wong v R (2001),
- That relevant considerations and legal principles are to be applied consistently to all offenders; Hili v R (2010),
- That consistency does not equate to numerical equivalence, and cannot be expressed by a graph or mathematical formula: Wong v R (2001), and
- That courts are only to uphold an appeal on the ground that a sentence is manifestly excessive if sentencing principles have been applied incorrectly; Wong v R (2001).
The decision means that state and territory judges are not permitted to use local sentencing regimes or statistics when determining penalties for those convicted of Commonwealth offences.Rather, they must apply the national regime and principles set down by the High Court.
It is hoped that this will lead to greater consistency in sentencing nationwide.