The High Court has recently considered the proper approach to the sentencing of Federal offenders (ie people convicted of offences against the laws of the Commonwealth).

Such offences are prosecuted nationally by the one office, the Commonwealth Director of Public Prosecutions (CDPP). The underlying investigations may have been conducted by the Australian Federal Police (AFP), Australian Border Force (ABF), the Australian Taxation Office (ATO), the Australian Securities & Investments Commission (ASIC) or a range of other Federal (and occasionally State) investigating agencies. Offences are typically found in the Criminal Code (Cth). Sometimes, particularly in the commercial and regulatory context the offence will be found in other federal laws, such as the Corporations Act 2001 (Cth).

For reasons1 that are probably more historical than anything, Federal offenders are almost universally dealt with and thus sentenced in State Courts. From time to time State Courts not surprisingly find it attractive to compare the criminality in Federal offending with the criminality in State offending. By way of example, there is a natural attraction to a State judge in comparing the criminality of a Federal offender who has imported 1kg of heroin with a State offender who has sold 1kg of heroin. Over time that approach is likely to lead to different sentencing outcomes for similar Federal offences, depending on the State in which the offender is sentenced.

In The Queen v Pham [2015] HCA 39, the High Court has unanimously directed all Courts sentencing Federal offenders to look nationally for comparative cases in order to determine the appropriate sentencing range.

Pham was a prosecution appeal (in a drug importation case) against a judgment of the Victorian Court of Appeal, which had upheld an appeal against sentence by the offender. Maxwell P in the Court of Appeal had found:

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 [Mr Pham] 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.2

All 5 judges in the High Court agreed with the CDPP that:

Maxwell P erred in holding that [Mr Pham] 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.3

In light of the decision I expect that over time the sentencing range for individual Federal offences will converge, regardless of the State in which they occur.

The High Court also used Pham to consider the proper approach to statistics in the sentencing process. In short the Court affirmed the proposition that the quantity of drugs is not the sole determiner of the appropriate sentence.4 The same proposition must be true of the quantum of a fraud or the value of money or property possessed in a money laundering case.

  1. And by operation of s 68 Judiciary Act 1901 (Cth). []
  2. [2015] HCA 39 at [14] and [41]. []
  3. [2015] HCA 39 at [17][18][41]. []
  4. [2015] HCA 39 at [35][37]. []