Bui v Director of Public Prosecutions (Cth)

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Kiefel,Bell JJ.
• Judgment Date: 09 February 2012
• Neutral Citation: [2012] HCA 1,2012-0209 HCA A
• Court: High Court
• Docket Number: M127/2011
• Date: 09 February 2012

Kieu Thi Bui

Appellant

and

Director of Public Prosecutions For The Commonwealth of Australia

Respondent

[2012] HCA 1

French CJ, Gummow, Hayne, Kiefel and Bell JJ

M127/2011

HIGH COURT OF AUSTRALIA

Bui v Director of Public Prosecutions (Cth)

Criminal law — Appeal — Appeal against sentence — Prosecution appeal — Double jeopardy — Appellant pleaded guilty to importation of a marketable quantity of a border controlled drug contrary to s 307.2(1) of Criminal Code (Cth) — Appellant sentenced to three years' imprisonment to be released forthwith upon giving security to comply with a condition that appellant be of good behaviour for three years — Respondent appealed against sentence — Sections 289(2) and 290(3) of Criminal Procedure Act 2009 (Vic) (‘Victorian provisions’) provided that double jeopardy not to be taken into account in allowing appeal against sentence or imposing sentence — Whether ss 68(1) or 79(1) of Judiciary Act 1903 (Cth) (‘Judiciary Act’) rendered Victorian provisions applicable to prosecution appeal against sentence instituted by respondent — Whether a ‘common law principle against double jeopardy’ picked up by s 80 of Judiciary Act — Whether ss 16A(1)–(2) of Crimes Act 1914 (Cth) required or permitted court determining sentence for federal offence to take into account double jeopardy.

Words and phrases — ‘double jeopardy’.

Crimes Act 1914 (Cth), ss 16A(1)–(2).

Judiciary Act 1903 (Cth), ss 68(1)–(2), 79(1), 80.

Criminal Procedure Act 2009 (Vic), ss 289(2), 290(3).

Representation

P F Tehan QC with G F Meredith for the appellant (instructed by Greg Thomas, Barrister & Solicitor)

W J Abraham QC with D D Gurvich for the respondent (instructed by Commonwealth Director of Public Prosecutions)

S G E McLeish SC, Solicitor-General for the State of Victoria with R J Orr intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

ORDER

Appeal dismissed.

1 French CJ, Gummow, Hayne, Kiefel and Bell JJ. The appellant is an Australian citizen who was born in Vietnam. She agreed to carry drugs into Australia from Vietnam at the suggestion of one Quang Vo, also called Ho, a person from whom she had borrowed money. She was apprehended at Melbourne airport on 11 February 2009 and taken to a hospital where a computed tomography (or so-called ‘CT’) scan identified four foreign objects concealed within her body. The objects were pellets containing heroin. The calculated total pure weight of heroin, found upon analysis, was 197.3 grams.

2 After the discovery of the drugs the appellant co-operated with the police. She gave a detailed account of her involvement, made a statement naming the person who provided her with two of the pellets and provided information as to the coded language used by that person and Ho. An undertaking by the appellant to co-operate with law enforcement agencies in future proceedings, made pursuant to s 21E of the Crimes Act 1914 (Cth) (‘the Crimes Act’), was tendered at the hearing on sentence after the appellant's plea of guilty to one count of the importation of a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code (Cth).

3 On 30 April 2010, the sentencing judge in the County Court of Victoria, Wilmoth J, decided not to impose an immediate term of imprisonment upon the appellant. Her Honour gave as reasons for that decision the assistance the appellant had already given to the authorities and her undertaking to assist the authorities in the future; the danger which attended that course of action; and the risk that hardship would be caused to the appellant's infant twins, born prematurely in December 2009, following her arrest. Her Honour sentenced the appellant to three years' imprisonment but ordered that she be released forthwith upon giving security by recognisance of $5,000 to comply with a condition that she be of good behaviour for three years.

4 The Commonwealth Director of Public Prosecutions (‘the respondent’) appealed against the sentence imposed on the ground that it was manifestly inadequate. Neither the appellant nor the Attorney-General for Victoria, who intervened in the appeal to this Court, disputed that the respondent was entitled to appeal against sentence. That entitlement was explained by this Court in Rohde v Director of Public Prosecutions1 applying the reasoning of Gibbs J in Peel v The Queen2.

Section 287 of the Criminal Procedure Act 2009 (Vic), like its predecessor s 567A of the Crimes Act 1958 (Vic) which was considered in Rohde, gave a right of appeal against a sentence imposed by an originating court, to the Director of Public Prosecutions of Victoria. Section 68(2) of the Judiciary Act 1903 (Cth), when applied to s 287, has the effect of conferring a right of appeal on the Attorney-General of the Commonwealth. By way of analogy with the Director of Public Prosecutions of Victoria, the Attorney-General is the proper officer to represent the Commonwealth. The stage is then set for s 9(7) of the Director of Public Prosecutions Act 1983 (Cth) to operate so as to vest the right of appeal in the respondent.

5 The reasons for judgment of the Court of Appeal of the Supreme Court of Victoria (Nettle, Hansen JJA and Ross AJA) identified two errors in the sentencing judge's approach and did so by reference to s 16A of the Crimes Act, which appears in Div 2 of Pt 1B of that Act. Part 1B relevantly governs the sentencing of offenders against Commonwealth laws. Section 16A(1) provides:

‘In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.’

Sub-section (2) of s 16A provides a list of matters which ‘[i]n addition to any other matters, the court must take into account’ if they are ‘relevant and known to the court’. Ross AJA, with whom the other members of the Court of Appeal agreed, identified as relevant to the circumstances of the appellant's case, the matter referred to in s 16A(2)(p), namely ‘the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.’ His Honour observed that this provision has been construed as being subject to a requirement that the family hardship be adjudged to constitute exceptional circumstances 3.

6 The first error identified by the Court of Appeal in the reasoning of the sentencing judge was her Honour's conflation of the consideration of family hardship, which might be caused by the appellant's imprisonment, with the

circumstance that the appellant had co-operated with the authorities. It was held that in determining whether family hardship amounts to exceptional circumstances, the effect of hardship must be assessed on its own 4. The second error related to the sentencing judge's finding that the evidence disclosed a risk of hardship, whereas s 16A(2)(p) requires that hardship be shown to be a probable effect 5.

7 The Court of Appeal agreed with the submission of the respondent that, taking into consideration all relevant matters, the sentence imposed upon the appellant was inadequate. The factors to be taken into account included general deterrence, the nature of the offence, the significance of the appellant's role in drug trafficking, the significant quantity of heroin imported and her motivation, namely financial reward 6. After also taking into account the assistance which the appellant undertook to provide law enforcement agencies, the Court re-sentenced the appellant to four years' imprisonment and fixed a non-parole period of two years 7.

8 In reasoning to this conclusion the Court of Appeal had regard to ss 289 and 290 of the Criminal Procedure Act which came into effect in Victoria on 1 January 2010 8. Section 289 provides:

And s 290 provides:

• ‘(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP [ 9] satisfies the court that—

  • (a) there is an error in the sentence first imposed; and

  • (b) a different sentence should be imposed.

• (2) In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.

• (3) In any other case, the Court of Appeal must dismiss an appeal under section 287.’

• ‘(1) If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.

• (2) If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.

• (3) In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.’

9 The Court of Appeal correctly observed that Victorian legislative provisions concerning considerations relevant to sentencing cannot of their own force have anything to say about sentencing with respect to a federal offence 10.

However, s 80 of the Judiciary Act11 provides for the application, by courts exercising federal jurisdiction, of the common law of Australia as modified ‘by the statute law in force in the State … in which the Court in which the jurisdiction is exercised is held’. The Court of Appeal held that ss 289(2) and 290(3) of the Criminal Procedure Act (‘the Victorian provisions’) relevantly modify the judge-made rule of double jeopardy and are effective to exclude the rule on Commonwealth appeals relating to sentencing of federal offences 12. The...