Special Bulletin 10 — December 2015

Post The Queen v Pham (2015) 90 ALJR 13 appellate cases

Importing a marketable quantity of a border controlled drug

(s 307.2(1) Criminal Code (Cth))


The High Court made it clear in The Queen v Pham (2015) 90 ALJR 13 that when a court sentences an offender for a Commonwealth offence it must have regard to intermediate appellate court decisions of all jurisdictions of the Commonwealth — not just to cases where sentencing occurs (at [27]). Bell and Gageler JJ at [50] (“the joint Justices”) said:

comparable cases decided by the intermediate courts of appeal provide the most useful guidance to a sentencing judge. An appellate court’s reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance.

French CJ, Keane and Nettle JJ (“the plurality”) said at [28] consistency in sentencing is achieved through the work of intermediate appellate courts and that those courts “must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences” at [29].

It is to be noted in Pham v R [2014] VSCA 204 at [37] that Maxwell P attached to his Honour’s judgment a table of 32 cases of intermediate appellate courts (Attachment A) for offences involving a marketable quantity of a border controlled drug where the offender “performed the role of a courier (or recipient), and no more”, had “pleaded guilty to the charge” and had “no (or no relevant) prior convictions”. The schedule was primarily drawn from schedules provided by the parties in the case.

The purpose of this Special Bulletin is to provide relevant intermediate appellate decisions for cases where the drug importer was no more than a courier, pleaded guilty and had no (or no relevant) prior convictions (Table A attached). It uses as a starting point the schedule of 32 cases relied upon by the Victorian Court of Appeal in Pham v R (Attachment A) having regard to the criticisms of the High Court. Table A also provides nine additional intermediate appellate decisions that fit the specified offender profile. For further completeness, and for the purpose of comparison, Table B also provides intermediate appellate decisions where the offender was identified by the court as more than a courier, or pleaded not guilty, or had a significant criminal history (including convictions with imprisonment).

In The Queen v Pham, the plurality criticised the use by the Victorian Court of Appeal of the schedule of cases in Attachment A on the bases that it: failed to distinguish narcotic drugs and precursors (at [12]); failed to have regard to the kind and size of reward given or promised to the offender (at [35]); and erroneously assumed (at [37]):

that the “courier” status of the respondent and each of the prior offenders was of uniform significance, and treat[ed] the weight of the drug imported in each case as “the only variable factor affecting offence seriousness.”

The joint Justices agreed with the last observation at [51]. Their Honours also said a deficiency in Attachment A was the exclusion of “relevant” prior convictions given that Pham himself “had a number of prior convictions” at [51].

Table A — role no more than a courier, guilty plea and no (or no relevant) prior convictions

Table A (attached in two sections) contains a schedule of 30 intermediate appellate court decisions for the offence of importing a marketable quantity of a border controlled drug (s 307.2(1) Criminal Code (Cth)) where the offender was no more than a courier, pleaded guilty and had no (or no relevant) prior convictions. Twenty-one of these cases were drawn from Attachment A in Pham v R. Nine further decisions, which fit the criteria, were added following research conducted by the Judicial Commission of NSW.

Issues with Attachment A, in addition to those identified by the High Court, were corrected and certain decisions moved to Table B. These included decisions for possession offences (s 307.6 Criminal Code) where offenders received the border controlled drug(s) via Australia Post, a courier service, or customs. Importation cases prosecuted under s 233B (rep) Customs Act 1901 were also excluded on the basis that the ingredients of the crime did not precisely match, and that such offences are unlikely to be prosecuted again (also moved to Table B).

Table A also corrects for the occasional incorrect calculation in Attachment A for the percentage of the commercial quantity of the drug involved. For example, in R v Huynh (2008) 180 A Crim R 517, the percentage was in fact 7.2% and not 0.7% as reported. Attachment A decisions where the offender was, in fact, identified by the court as more than a courier, or pleaded not guilty, or had a significant criminal history (including convictions with imprisonment) were also excluded and moved to Table B.

Table B — other distinguishable objective and subjective features

Table B (attached in two sections) contains a further schedule of 22 intermediate appellate court decisions. Eleven of these decisions (E1–E11) have been removed from Attachment A on the basis that none of the decisions fits each and every criterion of Table A. The distinguishing objective or subjective factor(s) in these decisions are explained in bracketed text. It is to be noted that, in decisions E5 and E7, the sentence is recorded in parenthesis to indicate that the sentence is an effective sentence. Further details of the other sentences are provided in the footnotes. Table B also contains an additional 11 decisions which are similar to the removed decisions which were identified through the Judicial Commission’s further research.

A note regarding financial reward

Tables A and B add financial reward as a sentencing factor in addition to those factors in Attachment A. The plurality in The Queen v Pham at [35] affirmed the statement in Wong v The Queen (2001) 207 CLR 584 that the kind and size of reward given or promised to the offender is “important in fixing a sentence and distinguishing between offenders” at [69]–[70]. The specific text in each appeal judgment (or where applicable, lower court judgment) which describes the financial reward (where known) is provided in the Tables.

However, in some decisions there is no finding of fact and/or it is not “known to the court” (see s 16A(2) Crimes Act 1914 (Cth); Filippou v The Queen (2015) 89 ALJR 776 at [70]). In some decisions, a reward was offered but the type of currency was not clear. Further, the reward was not always a sum of money. In some cases it was the repayment of an existing debt, or paid expenses including airline tickets. Finally, it is to be noted that the quantum of the reward may be influenced by when the importation occurred. Generally, the older the importation, the lower the reward and vice versa.

Use of sentencing tables by the prosecution

Given very recent pronouncements of the High Court, something must be said of the use of tables (such as Tables A and B attached) at sentence by the prosecution. A prosecutor is not required, and should not be permitted, to make a submission as to the bounds of the available sentencing range or to proffer some statement of the specific result: Barbaro v The Queen (2014) 253 CLR 58 at [7], [39]. In criminal proceedings the imposition of punishment is an exercise of instinctive synthesis: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [56], [72]; Wong v The Queen at [75]; Markarian v The Queen (2005) 228 CLR 357 at [35]. There is no room in an exercise of that nature for the judge to take account of the Crown’s opinion as to an appropriate length of sentence; to do so would create an unacceptable risk of breaking down the distinction that must exist between the court and the coercive power of the State which is exercised in the criminal jurisdiction: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate at [37], [56], [77], [93], [99].

Hugh Donnelly

Director, Research and Sentencing

Judicial Commission of NSW