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Consistency in Federal Sentencing

The content on this page was last reviewed on 27 April 2016.

Recent cases alert
DPP (Cth) v Phan [2016] VSCA 170 — Crown’s table of comparative cases unsatisfactory, inaccurate and apt to mislead.
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

Sentencing should be systematically fair and that involves, amongst other things, reasonable consistency. 1 However, consistency is not demonstrated by, and does not require, numerical equivalence. 2 The consistency that is sought is consistency in the application of the relevant legal principles, contained in Part IB of the Crimes Act 1914 (Cth). 3 This requires the treatment of like cases alike, and different cases differently. 4 In Hili v The Queen; Jones v The Queen [2010] HCA 45 the majority identified two primary means of achieving consistency in federal sentencing. These are:

Judicial consideration of these two means of achieving consistency, and recent developments on submissions as to sentencing range considered in Barbaro v The Queen [2014] HCA 2 are discussed below.

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2. Apply the relevant statutory provisions

The majority in Hili v The Queen; Jones v The Queen [2010] HCA 45 observed that the first and paramount means of achieving consistency in federal sentencing is to ‘apply the relevant statutory provisions’, 5 ‘without being distracted or influenced by other and different provisions that would be engaged if the offender concerned were not a federal offender’. 6  It is therefore of ‘cardinal importance’ 7 to begin consideration of the sentencing of a federal offender by examining Part IB of the Crimes Act 1914 (Cth) and any other applicable statutory provisions. 8

2.1 Application of state and territory laws and consistency

Part IB of the Crimes Act 1914 (Cth) is not a comprehensive sentencing scheme. 9 Some sections expressly pick up and apply the laws of the State or Territory in which the federal offender is sentenced. 10 This may result in inconsistency in the sentencing of federal offenders according to where they are sentenced. 11

This inconsistency is the result of the policy choice inherent in the Judiciary Act 1903 (Cth) and the Crimes Act 1914 (Cth), 12 and the ‘consequence is that some variation in sentencing between different jurisdictions is inevitable’. 13 It is however a result of a deliberate legislative choice by the Commonwealth, and ‘[t]he courts must apply that choice, even if the result is a degree of inconsistency in sentencing in different jurisdictions’. 14

As such, consistency in federal sentencing may give way to an express provision in the Crimes Act 1914 (Cth) which adopts the relevant state or territory practice. For example, in Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125 Fryberg J considered an argument that a court should compensate for differences in State legislation in order to achieve uniformity of federal offenders. The offender’s submission related to s 15A of the Crimes Act 1914 (Cth), which ‘picks up’ certain state and territory laws relating to imprisonment for fine default. Fryberg J stated at [86]:

It may be accepted that such differences should often be taken into account by sentencing judges, but this must be subject to any express provision found in Commonwealth legislation. Section 15A(1) of the Crimes Act, which picks up s 182A of the Penalties and Sentences Act, implicitly recognises the likelihood of differences among the various jurisdictions and makes provision for the modification or exclusion of State laws where that is desired by the Commonwealth. Subject to any laws made pursuant to that provision, the section provides an example of the adoption or acceptance of jurisdictional differences as a matter of federal legislative policy.

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3. Have regard to what has been done in other cases

3.1 Relevance of past sentences

In seeking consistency, sentencing judges must have regard to what has been done in other cases. 15 However, the sentences which have been imposed in the past do not mark the outer bounds of the permissible discretion, 16 or fix ‘the boundaries within which future judges must, or even ought, to sentence.’ 17 Rather, what is important is the ‘unifying principles which those sentences both reveal and reflect.’ 18

The majority in Hili v The Queen; Jones v The Queen [2010] HCA 45, [54] agreed with the observation by Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194, [304] that past sentences:

… are no more than historical statements of what has happened in the past.  They can and should provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.

3.2 Relevance of decisions of intermediate courts of appeal

Intermediate courts play an important role in achieving greater federal consistency. In Hili v The Queen; Jones v The Queen [2010] HCA 45 the Court reiterated at [57] that:

… intermediate courts of appeal should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court, unless convinced that the interpretation is plainly wrong.

The Court also commented on consistency in the sufficiency of sentences for federal offenders, stating at [57]:

… in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong.

However, the jurisdictional differences that occur in some areas of federal sentencing are relevant when considering comparable cases and the sufficiency of sentences. In R v Lee [2013] WASCA 216, the Court noted the principle from Hili, 19 however McLure P (Mazza JA and Hall J agreeing) also noted at [27] that:

… when considering comparable cases and the sufficiency of sentences, it must be recalled that in some but not all respects, Pt 1B of the Crimes Act refers to and picks up State and Territory legislation affecting service of a sentence of imprisonment.

3.3 Utility of sentencing statistics

The emergence of sentencing databases (including this database) throughout Australia in the last decade has provided greater accessibility to sentencing statistics. In Hili v The Queen; Jones v The Queen [2010] HCA 45, [48] the majority cautioned about the utility of employing mathematical tables in sentencing at that time, stating at [48]:

Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the result (emphasis added).

After the judgment in Hili, the format of most sentencing databases were adapted to enable users to ‘go behind’ the statistics and view further information particular to the individual sentence. In the more recent case of Barbaro v The Queen [2014] HCA 2, the High Court noted that sentencing statistics are useful in promoting consistency between comparable cases. The plurality stated at [40]:

The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence (emphasis added).

In Matthews v The Queen [2014] VSCA 291 the Victorian Court of Appeal considered the application of Barbaro, and emphasised that sentencing statistics and other material on comparable cases are important in achieving consistency, stating at [21]:

As the majority in Barbaro took care to point out, their Honour’s proscription of the submission of quantified sentencing ranges must also be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases.  Sentencing judges should continue to strive for consistency and consistency entails having regard to what has been done in other cases.  Other cases may establish a range of sentences even though, as the majority said, they do not establish that the sentences imposed in those cases mark the outer bounds of the permissible discretion [Barbaro (2014) 305 ALR 323, 331-2 [40]-[41]] (emphasis added).

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4. Submissions on sentencing range: Barbaro v The Queen

The prosecution is not permitted to make submissions regarding an appropriate sentencing range. In Barbaro v The Queen [2014] HCA 2, the High Court specifically overturned the Victorian practice of counsel for the prosecution providing a submission as to the range of available sentences, stating that such a submission is ‘a statement of opinion, not a submission of law’. 20 The plurality further stated at [7]:

Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed. That being so, the prosecution is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge.

While it is permissible for counsel to refer to sentencing statistics and other materials indicating the outcome in other cases, 21 the High Court emphasised that such material ‘does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion’: The plurality stated at [41]:

The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.

4.1 Application of Barbaro v The Queen

In Matthews v The Queen [2014] VSCA 291the Victorian Court of Appeal considered the application of Barbaro v The Queen [2014] HCA 2in an appeal against sentences imposed where the court had received prosecution submissions as to the available range of sentences. The Court advanced a number of propositions regarding the application of Barbaro v The Queen [2014] HCA 2.

4.1.1 Whether a submission as to range is an irrelevant consideration

The majority and minority judges disagreed on whether a prosecution submission as to range was an irrelevant consideration. 22 The majority held that a submission as to range was not of itself an irrelevant consideration, understanding Barbaro as holding that the practice of the prosecution offering a range should cease, because of the risk of it leading judges into error. 23 As such, they found that a sentencing judge would fall into error where they had received a quantified range submission and then imposed a sentence merely because it was within the range suggested by the Crown, shirking the task of coming to their own instinctive synthesis. 24 The minority disagreed, finding that Barbarohad held that a submission as to range was an irrelevant sentencing consideration. 25

4.1.2 Whether sentencing discretion is vitiated where a range submission is received

The majority in Matthews v The Queen [2014] VSCA 291 held that receiving a submission as to range was not of itself an error of law, 26 nor should it be inferred that just because a sentencing judge has received a range, the discretion is vitiated. 27 Rather, the majority indicated that a quantified range submission will not vitiate the sentencing discretion unless it can be demonstrated that the sentencing judge was influenced by the submission in arriving at his or her sentence. 28  Warren CJ and Nettle and Redlich JJA further explained at [19]:

Of course, it remains that the question of whether a sentencing judge has allowed a quantified range submission to affect the sentencing disposition in the sense of being swayed by the Crown’s assessment of appropriate punishment must be decided on a case by case basis as one of fact and degree.  But, in most cases, it should be clear.  In some, like Barbaro itself, the sentencing judge may have expressly stated that he or she did not consider the fact of the Crown’s view of the appropriate range of sentences to be a matter which they would take into account.  Where that is so, there could hardly be any doubt about the position.  In other cases, the judge may not have said anything about the matter, but even so the position is still tolerably clear.  A judge will not ordinarily be expected to state that they have or have not taken a quantified range submission into account.  Unless  the judge expressly states that the prosecution’s view of the appropriate range of sentences has been taken into account or it is necessarily implicit in the judge’s sentencing remarks that he or she has been so swayed, it is difficult to suppose that it would have been so.  Exchanges between the judge and counsel during the plea in mitigation as to possible sentencing dispositions will not usually provide a sound basis for an inference that a range submission has influenced the judge (emphasis added).   

The minority judges similarly held that mere receipt of a submission as to range does not of itself lead to the conclusion that the exercise of the sentencing discretion has miscarried. 29 However, the minority judges offered a lower threshold for determining whether the range had been taking into account, stating at [154]:

It is only if it can be discerned that the judge has acted on the submission in a manner that has influenced the sentencing result that sentencing error is demonstrated.  Ordinarily, in circumstances where the Crown has offered a sentencing range, and a sentencing judge is minded to impose a sentence which is within (or close to) the proffered range, so as to avoid the conclusion that the range has been taken into account in a material way, we would expect the judge who has determined not to take the range into account to say so in his or her reasons for sentence.

4.1.3 Role of the Crown

The majority in Matthews v The Queen [2014] VSCA 291described the role of the Crown after Barbaro at [27]:

… it appears that, apart from proscribing the submission of a quantified sentencing range, Barbaro has not changed any of the pre-existing practice (emphasis added). Nothing said in Barbaro detracts from the Crown’s obligation to make clear what type of sentencing disposition, whether imprisonment or otherwise, it contends is necessary or appropriate.  It remains that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner.  It has a duty to assist the sentencing judge to avoid appealable error [R v Tait (1979) 24 ALR 473, 477].  That includes making an adequate presentation of the facts, identifying any aggravating features and admitting any mitigating features, fair testing of the offender’s case, correcting any error of fact which emerges in the course of the plea and drawing attention to the offender’s antecedents including any sentence of imprisonment currently being served [R v Rumpf [1988] VR 466, 476].  The Crown’s duty also extends to making appropriate submissions on relevant questions of law, including statutorily prescribed maximum penalties [R v Travers (1983) 34 SASR 112, 115-6], principles of sentencing reasonably thought to be applicable [R v Tait (1979) 24 ALR 473, 477] and comparable and other relevant cases [Hili v The Queen (2010) 242 CLR 520, 536-7]. If it is submitted for an offender that he or she should receive a non-custodial disposition or a suspended term of imprisonment, the Crown should make clear whether it contends, and if so why, a disposition of the kind proposed would not be a proper exercise of sentencing discretion [Malvaso v The Queen (1989) 168 CLR 227; Everett v The Queen (1994) 181 CLR 295]. 30

4.1.4 Submissions as to range from defence counsel

The majority in Matthews v The Queen [2014] VSCA 291 held that defence counsel was not prohibited by Barbaro from proffering a submission on sentencing range. 31 The majority further stated that if defence counsel does make a submission as to range, it is permissible for the Crown to respond, and state whether in the Crown’s submission, it would be open to impose a sentence within that range. 32 Warren CJ and Nettle and Redlich JJA explained at [24]-[25]:

… we think that, if that were intended, it would have been stated expressly because of its effect on the criminal justice system.  A plea in mitigation of penalty is supposed to be just that and, although there are sometimes good forensic reasons for defence counsel to avoid submitting a quantified sentencing range, there are just as many cases where a plea in mitigation of penalty would be significantly compromised unless defence counsel had the ability to make a submission of that kind.

 

Moreover, when and if defence counsel does make a submission as to range, we consider that it is necessary and therefore permissible for the Crown to respond and, in particular, to be able to tell the judge whether in the Crown’s submission it would be open to impose a sentence within that range; or, if not, to draw to the judge’s attention the comparable and other cases, current sentencing practices and other relevant considerations which in the Crown’s submission support that conclusion.  To say so is not to suggest that the Crown would be entitled to specify an alternative quantified range.  So much is now prohibited by Barbaro.  But it remains necessary to the proper functioning of the sentencing process that the Crown be able to and do draw to the judge’s attention the possibility that acceptance of a defence submission might lead to appealable error (emphasis added).

The minority found it unnecessary to discuss the issue of range submissions by defence counsel. 33

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4.2 Barbaro does not apply to civil penalty proceedings

‘[T]he decision in Barbaro does not apply to civil penalty proceedings and a court is not precluded from receiving and, if appropriate, accepting an agreed or other civil penalty submission’. 34  In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 French CJ, Kiefel, Bell, Nettle and and Gordon JJ held at [46]­–[51]:

[T]here is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and … the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers. As was recognised in Allied Mills [[1981] FCA 142; (1981) 37 ALR 256] and authoritatively determined in NW Frozen Foods [[1996] FCA 1134; (1996) 71 FCR 285], such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention.

[T]he court is not bound by the figure suggested by the parties. The court asks “whether their proposal can be accepted as fixing an appropriate amount” [NW Frozen Foods [1996] FCA 1134; (1996) 71 FCR 285 at 291 (emphasis added)] and for that purpose the court must satisfy itself that the submitted penalty is appropriate.

 

Nor is it “pious” to suppose that judges will do their duty, as they have sworn to do, and therefore reject any agreed penalty submission if not satisfied that what is proposed is appropriate. It would be a travesty of justice if that were not the case. It may be presumed that a judge will do his or her duty according to the oath of office. The public may have confidence that it will be so.

[W]hat was said in Barbaro applies only to criminal proceedings and, consequently … nothing said in Barbaro is antithetical to continuing the practice of agreed penalty submissions in civil penalty proceedings.

 

Contrary to the Full Court’s reasoning, there are basic differences between a criminal prosecution and civil penalty proceedings and it is they that provide the “principled basis” for excluding the application of Barbaro from civil penalty proceedings (emphasis added).

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Notes:

  1.  Wong v The Queen [2001] HCA 64, [6] (Gleeson CJ), cited with approval in Hili v The Queen; Jones v The Queen [2010] HCA 45, [47] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  2.  Hili v The Queen; Jones v The Queen [2010] HCA 45,[48] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) cited in Barbaro v The Queen [2014] HCA 2, [40] (French CJ, Hayne, Kiefel and Bell JJ).
  3.  Hili v The Queen; Jones v The Queen [2010] HCA 45,[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) cited in Barbaro v The Queen [2014] HCA 2, [40] (French, Hayne, Kiefel and Bell JJ).  
  4.  Hili v The Queen; Jones v The Queen [2010] HCA 45,[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  5.  Hili v The Queen; Jones v The Queen [2010] HCA 45, [50] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  6.  Hili v The Queen; Jones v The Queen [2010] HCA 45, [50] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  7.  Hili v The Queen; Jones v The Queen [2010] HCA 45, [39] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  8.  Hili v The Queen; Jones v The Queen [2010] HCA 45, [39] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  9.  Hili v The Queen; Jones v The Queen [2010] HCA 45, [51] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).  
  10.  See, eg, Crimes Act 1914 (Cth) s 16E. 
  11.  Putland v The Queen [2004] HCA 8, [25] (Gleeson CJ).
  12.  Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, [82] (Fryberg J). See also Williams v The King [No 2] [1934] HCA 19 (Dixon J); Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [3.25]. 
  13.  Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, [84] (Fryberg J).
  14.  Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125, [84] (Fryberg J).
  15.  Barbaro v The Queen [2014] HCA 2, [41] (French CJ, Hayne, Kiefel and Bell JJ).  
  16.  Barbaro v The Queen [2014] HCA 2, [41] (French CJ, Hayne, Kiefel and Bell JJ).
  17.  Munda v Western Australia [2013] HCA 38, [39] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ);  Hili v The Queen; Jones v The Queen [2010] HCA 45, [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)  approving DPP (Cth) v De La Rosa [2010] NSWCCA 194, [304] (Simpson J).  
  18.  Barbaro v The Queen [2014] HCA 2, [41] (French CJ, Hayne, Kiefel and Bell JJ).
  19.  R v Lee [2013] WASCA 216, [26] (McLure P, Mazza JA and Hall J agreeing).  
  20.  Barbaro v The Queen [2014] HCA 2, [42] (French CJ, Hayne, Kiefel and Bell JJ).
  21.  Barbaro v The Queen [2014] HCA 2, [40] (French CJ, Hayne, Kiefel and Bell JJ).
  22.  See Matthews v The Queen [2014] VSCA 291,[7]-[21] (Warren CJ, Nettle and Redlich JJA), [141]-[143] (Priest JA and Lasry AJA).  
  23.  Matthews v The Queen [2014] VSCA 291,[13]-[14] (Warren CJ, Nettle and Redlich JJA).
  24.  Matthews v The Queen [2014] VSCA 291, [18]-[19] (Warren CJ, Nettle and Redlich JJA).
  25.  Matthews v The Queen [2014] VSCA 291,[141]-[143] (Priest JA and Lasry AJA).
  26.  Matthews v The Queen [2014] VSCA 291,[13] (Warren CJ, Nettle and Redlich JJA).
  27.  Matthews v The Queen [2014] VSCA 291,[17]-[18] (Warren CJ, Nettle and Redlich JJA).
  28.  Matthews v The Queen [2014] VSCA 291,[7], [19] (Warren CJ, Nettle and Redlich JJA).  
  29.  Matthews v The Queen [2014] VSCA 291,[154] (Priest JA and Lasry AJA).
  30.  See also the statements of the minority: Matthews v The Queen [2014] VSCA 291,[153] (Priest JA and Lasry AJA).
  31.  Matthews v The Queen [2014] VSCA 291,[22]-[25] (Warren CJ, Nettle and Redlich JJA).
  32.  Matthews v The Queen [2014] VSCA 291, [25] (Warren CJ, Nettle and Redlich JJA).
  33.  Matthews v The Queen [2014] VSCA 291,[162] (Priest JA and Lasry AJA).
  34. Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, [1] (French CJ, Kiefel, Bell, Nettle and and Gordon JJ).