Facts and Background
The appellants, George Ellias and Chafic Issa, were charged and pled guilty before the Supreme Court of Victoria for the common law offence of attempting to pervert the course of justice (at [2]). These charges arose out of the conduct of the appellants in assisting the infamous Tony Mokbel (“Mokbel”) to hide from authorities and flee Australia to Greece (at [8]-[9]).
Under the Crimes Act 1958 (Vic), s 320 the maximum penalty for attempting to pervert the course of justice is 25 years. The appellants were each sentenced to 8 years (at [2]).
These sentences were appealed in the courts below on the basis of the principle enunciated in R v Liang (1995) 124 FLR 350 at 355 (“Liang”) that where, on the facts, the prosecution could have charged a defendant with an offence that carries a lesser penalty, and it was as, or more appropriate to proceed with that lesser charge, then the judge should take into account that lesser penalty in sentencing (at [1]).
Here, Mokbel was charged with offences under the Customs Act 1901 (Cth) (at [7]). As such, the appellants might have been charged under the Crimes Act 1914 (Cth), s 43 for attempting to pervert the course of justice, or under the Crimes Act 1958 (Vic), s 325 for being an accessory after the fact (at [10]). Both offences carried significantly lesser penalties (5 years) than s 320.
However, an argument based on Liang was rejected by both the sentencing judge and the Victorian Court of Appeal. The appeal before the High Court proceeded on the basis that the Victorian Court of Appeal was wrong, insofar as it held that Liang only applied to considering offences within the same jurisdiction (at [4], [22]), and that it did not consider the maximum penalty for the less serious State offence (at [4]).
The Decision
The High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) first considered the substance of the principle in Liang. The court, noted the statement of Winneke P (at [13]) that,
“although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is nonetheless relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused.” (at 355).
In tracing the history of the principle, the court noted that the requirement is for the lesser offence to merely be “as appropriate” not more so (R v McEachran (2006) 15 VR 615 at 636 [51] per Redlich JA) (at [17]). The Victorian Court of Appeal accepted Redlich JA’s application of the principle in the appellants’ case (Pantazis v The Queen (2012) 268 FLR 121 at 124 [3]) wherein it held the principle was a means by which the court’s discretion to impose a sentence it regards as appropriate is not fettered by the prosecutorial discretion to charge whatever offence it decides. It held this was based on the principles of achieving consistency and parity in sentencing – “It requires that the court should strive to impose similar punishment for similar offences committed by offenders in similar circumstances.” (Pantazis v The Queen (2012) 268 FLR 121 at 129-131 [28]) (at [21]).
The High Court though, after considering Liang, comprehensively rejected it. Firstly, it considered that implicit in the Victorian Court of Appeal’s formulation of the principle in Liang was that “the court sentences on its assessment of the offending conduct and not for the offence” (at [26]). As a matter of logic, it follows that if a court is permitted to take into account the fact that a defendant’s conduct might have resulted in a conviction for a lesser offence, then why should a judge “not take into account facts disclosing a circumstance of aggravation that could have been, but was not, charged”? (at [26]). As per Gibbs CJ in R v De Simoni (1981) 147 CLR 383 at 389, the latter represents a breach of a fundamental rule that no one should be punished for an offence of which they were not convicted; a court cannot take into account in sentencing “circumstances of aggravation which would have warranted a conviction for a more serious offence.”
The second basis was that Liang proceeded on a misconception of the court’s discretion in sentencing; the fact that simply because a defendant is being sentenced for an offence does not mean the court is engaged in a mechanistic exercise with a range of predetermined outcomes (at [26]). Rather the maximum penalty for an offence merely represents the worst case, the facts of which a court is invited to compare the facts of the case before it to (at [27]). It is the duty of the court in doing so to balance various factors against one another in pursuit individualised justice, and this is reflected by there being a wide sentencing discretion often afforded to the court (at [27]). Therefore, the maximum penalty for an offence does not constrain a court or force it to impose an inappropriately harsh sentence; it provides a yardstick by which to measure the penalty it so decides on, with reference to the facts both in the case before it, and those facts that would meet the yardstick (the worst case scenario).
The third basis was that Liang violated the principle of consistency in sentencing. It cited with approval the judgment of Glesson CJ in Wong and The Queen (2001) 207 CLR 584 at 591 [6] that while discretionary decision making can never be uniform, due to various factors, including that cases are adjudicated by different judges, such consistency is something to be strived for; “The administration of criminal justice … should be systematically fair, and that involves, amongst other things, reasonable consistency.” (at [28]). Individual offences, by their very nature and the exercise of judicial discretion have “differing elements and differing maximum penalties.” (at [29]). These elements and penalties each represent part of a “constellation of factors” the courts take into account when sentencing (at [29]). This constellation is broad enough without introducing those factors that have been developed and apply to other offences, therefore consistency is not achieved when sentences for different offences are taken into account which may likely have a whole different constellation of factors to them (at [29]).
The fourth basis was that the principle in Liang violates the separation of functions between the prosecution and the courts. The discretion of the prosecutor to determine the charge is its own (at [35]). In support, the court cited with approval the judgment of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501 at 514:
“No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority.” (at [34]).
Furthermore, prosecutors have a duty of fairness in exercising their functions, and in the event that the discretion to prosecute a particular charge was exercised for an improper purpose, the court has the power to relieve against such abuse (at [35]). However the time for doing so is prior to the entry of a plea, not after, else the court risks compromising its own impartiality and independence in substituting its own judgment for that of the prosecution’s (at [35]).
Finally, the appellants argued that Liang echoes the principle of parity as discussed in Green v The Queen (2011) 244 CLR 462 at 472-473 [28] (per French CJ, Crennan and Kiefel JJ) insofar as such is founded in “considerations of fairness and equal justice” (at [23]). The court was dismissive of this contention as, for the reasons above, the “norm of equality … is not disturbed by sentencing an offender for the offence for which he or she has been convicted.” (at [30]).
The appeals were therefore dismissed, and the principle enunciated in Liang was rejected (at [37]-[38]).
Analysis and Conclusions
In this decision, the High Court, by its own admission, has effectively turfed thirty years of Victorian jurisprudence. In doing so though, it noted that Liang had been comprehensively rejected by the NSW Court of Appeal (R v El Helou (2010) 267 ALR 734 at 750 [90] per Allsop P, Grove and Hislop JJ agreeing) (at [18]). However, several challenges can be made to the various grounds on which the court based its reasoning.
With regard to the first basis, that considering a lesser sentence must logically allow the court to also consider a more serious one, the courts have always assessed penal matters in favour of defendants, regardless of if they could logically be construed as admitting otherwise. For example, penal statutes are always construed in favour of defendants; an extreme example is that I have noted in Director of Public Prosecutions (Cth) v Keating [2013] HCA 20 wherein the High Court completely disregarded the clear purpose of the Social Security (Administration) Act 1999 (Cth), s 66A.
The second basis misconceives what Liang stood for, which was that where the sentencing judge believes a charge with a lesser sentence was more appropriate, such should be taken into account. This does not somehow mandate that the lesser penalty should be imposed, it merely asserts that it should be a factor in exercising the court’s discretion. It is much like how in administrative law decisions there are factors that must be taken into account in reaching a decision, and even though the decision maker may have reached the same decision were they not considered, said decision may be challenged if they were left out.
The fourth basis, that Liang breaches the separation of function between the prosecution and the court is also answered by the above conclusion in relation to the second basis, as it does not mandate the judge overthrow the prosecution’s discretion. Indeed, the prosecutor may argue for the maximum sentence and fail. It is therefore recognised that the prosecution’s discretion is fettered by the court’s in sentencing as a matter of course, and Liang simply introduces a factor in determining sentence.
The third basis, of Liang violating principles of consistency in sentencing, seems to ignore the fact that the Victorian courts have proceeded quite happily with Liang for thirty years, and have found it to be a workable enough principle to apply without inconsistency resulting. Indeed, if the factors a judge may take into account are known, and they are shown to have been used workably for such a long period of time, the practical realities would demonstrate such fears of inconsistency are unfounded.
The final basis, that rejecting Liang is not inconsistent with the norm of equality also means, in light of the preceding discussion, that nor is accepting Liang inconsistent with the norm, if a court forms the view that an offence with a lesser penalty was as appropriate as the one charged, and that is simply a factor to be taken into account.
It appears the decision is based solely on the view that Liang was a mandatory rule to be applied unflinchingly. If that were so then the decision is surely correct. But if Liang merely introduces a factor to be taken into account in the court exercising its discretion in sentencing, then it appears all the High Court has achieved is that a factor in sentencing that the courts were required to previously enunciate will now slink back to the recesses of the judicial mind. It is beyond strange to assume that judges will not, even subconsciously when passing sentence, consider lesser relevant offences and will not form a judgment as to their appropriateness. These considerations always impact on sentencing. In which case the principle in Liang will now become something that will likely continue to be applied, which practitioners will surely know about and still direct their minds to, but which shall never be acknowledged or spoken of. I do not see how that is something we should be pleased about.
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