Today’s reported contempt proceedings in the Supreme Court of Victoria do not (yet) involve the High Court. Rather, they concern an ongoing appeal in Victoria’s Court of Appeal by the Commonwealth Director of Public Prosecutions against a ten year sentence imposed on convicted terrorist Sevdet Besim by the Supreme Court. However, the issues are closely tied to several past High Court decisions.

One is a ruling in late 2015 allowing a Cth DPP sentencing appeal in a federal drugs matter, where the High Court unanimously held that:

to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.

This ruling almost certainly is the background for reported comments by judges hearing the DPP’s appeal that, the case of terror sentences:

Warren CJ: “NSW courts appeared to put less weight on the personal circumstances of the offender than Victorian courts, with greater concern for denouncing the crime and sending a message to others in the community. It’s as if the Murray River is an enormous gap in terms of sentencing.”

Weinberg JA: “The range seems to be in the 20s [years] for offending somewhat similar to this. It is extremely worrying, I would have thought, that there is such a gap.”

Just as in the 2015 case, the difficulty faced by the judges is that Victorian courts consistently gave lower sentences than other states, notably NSW. The High Court has made it clear that Victoria should generally follow the national approach, rather than its own one.

The other High Court rulings in play today are ones concerning the common law offence of scandalizing the court. Continue reading →