The principle of double jeopardy as an automatic discount or presumed anxiety and distress on re-sentencing is not accommodated by s 16A of the Crimes Act 1914 (Cth) because it...
There is no gap or insufficiency in the Commonwealth law relating to federal sentencing that would engage s 80 of the Judiciary Act 1903 (Cth) so as to apply the common law...
Sections 289(2) and 290(3) of the Criminal Procedure Act 2009 (Vic) are not picked up and applied to Crown appeals against sentence for federal offences because the common law...
Issues before the court
Whether ss 289(2) and 290(3) of the Criminal Procedure Act 2009 (Vic), which preclude regard to double jeopardy in prosecution appeals against...
Cited legislation
9 cited instruments linked from this judgment.
Plain English Summary
The High Court decided that when the Commonwealth DPP appeals a federal drug-importation sentence as too lenient, the appeal court does not automatically reduce the new sentence to allow for the stress the offender feels at being sentenced twice. The federal sentencing law in s 16A of the Crimes Act is complete on its face and does not contain or permit this double-jeopardy discount. Because the Commonwealth law leaves no gap, there is no occasion to apply Victorian legislation that removes double jeopardy from sentencing appeals. The Victorian Court of Appeal was therefore correct to increase the sentence without giving a discount for presumed anxiety, and the offender's further appeal failed.
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Deep Dive
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What happened
Kieu Thi Bui, an Australian citizen born in Vietnam, agreed to import heroin from Vietnam after borrowing money from a person named Quang Vo (also known as Ho). On 11 February 2009 she was apprehended at Melbourne airport. A CT scan revealed four foreign objects inside her body; these were pellets containing a total of 197.3 grams of pure heroin. After the drugs were discovered she cooperated fully with police, gave a detailed account of her involvement, named the person who supplied two of the pellets, explained coded language used by her contacts, and provided an undertaking under s 21E of the Crimes Act 1914 (Cth) to assist law-enforcement agencies in future proceedings. That undertaking was tendered at the sentencing hearing.
On 30 April 2010 Wilmoth J in the County Court of Victoria sentenced Bui after her plea of guilty to one count of importing a marketable quantity of a border-controlled drug contrary to s 307.2(1) of the Criminal Code (Cth). Her Honour decided not to impose an immediate custodial term. The reasons given were the assistance already provided and the undertaking to provide future assistance, the danger that assistance entailed, and the risk of hardship to Bui's infant twins who had been born prematurely in December 2009. The sentence imposed was three years' imprisonment, with an order that Bui be released forthwith upon giving security by recognisance of $5,000 conditioned on being of good behaviour for three years.
The Commonwealth Director of Public Prosecutions appealed to the Court of Appeal of the Supreme Court of Victoria on the ground that the sentence was manifestly inadequate. Neither Bui nor the Attorney-General for Victoria (who later intervened in the High Court) disputed the Director's right to bring the appeal. That right was traced through s 287 of the Criminal Procedure Act 2009 (Vic), s 68(2) of the Judiciary Act 1903 (Cth), and s 9(7) of the Director of Public Prosecutions Act 1983 (Cth).
The Court of Appeal (Nettle, Hansen JJA and Ross AJA) identified two errors in the sentencing judge's approach by reference to s 16A of the Crimes Act. First, the sentencing judge had conflated family hardship with the appellant's cooperation; the Court of Appeal held that hardship must be assessed on its own when deciding whether it constitutes exceptional circumstances under s 16A(2)(p). Second, the sentencing judge had found only a risk of hardship, whereas the statute requires that hardship be a probable effect. The Court of Appeal accepted that, taking all relevant matters into account (including general deterrence, the nature of the offence, Bui's role, the quantity imported and her financial motivation), the original sentence was inadequate. After allowing for the undertaking to assist, the Court re-sentenced Bui to four years' imprisonment with a non-parole period of two years. In doing so it had regard to ss 289(2) and 290(3) of the Criminal Procedure Act 2009 (Vic), which prohibit taking any element of double jeopardy into account either when deciding whether to allow a prosecution appeal or when re-sentencing.
Special leave to appeal to the High Court was granted but limited to the single question whether those Victorian provisions applied to a Crown appeal against sentence instituted by the Commonwealth Director for a federal offence. The High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) unanimously dismissed the appeal.
Why the court decided this way
The Court's reasoning begins and ends with the text and structure of s 16A of the Crimes Act. That section applies of its own force to the sentencing of all federal offenders. Sub-section (1) commands the court to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". Sub-section (2) then lists matters the court must take into account "in addition to any other matters" if they are "relevant and known to the court". The Court observed that s 16A has previously been held to accommodate common-law principles such as general deterrence, proportionality and totality because those principles give relevant content to the statutory phrases. However, the "principle" of double jeopardy pressed by the appellant did not fit.
The appellant argued that double jeopardy operated as one of the "other matters" under s 16A(2) and, in particular, that the presumed anxiety and distress of facing re-sentencing fell within the "mental condition" referred to in s 16A(2)(m). The Court rejected both limbs. First, an automatic discount would be inconsistent with the obligation to impose a sentence that is appropriate in severity in all the circumstances; it would introduce a rigid reduction for which the text supplies no foundation. Second, the opening words of s 16A(2) limit the court to matters that are "relevant and known to the court". Presumed anxiety is not "known" in the statutory sense; it is an inference drawn from common experience rather than a proven fact. The Court noted that in Director of Public Prosecutions (Cth) v De La Rosa there had been differing views on this point, but the textual emphasis on matters "known to the court" supported the narrower construction.
Because s 16A is a complete and self-contained statement of the matters to be considered on sentence (including on re-sentence after a successful Crown appeal), there is no gap or insufficiency in Commonwealth law. Section 80 of the Judiciary Act therefore has no work to do. That section applies the common law of Australia as modified by State statute only "so far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment". The Court cited Blunden v The Commonwealth for the proposition that s 80 fills gaps in written federal law. Here, re-sentencing can occur and will occur according to s 16A without any reference to presumed anxiety on re-sentencing. The judge-made rule of double jeopardy therefore does not apply in this statutory context, and the Victorian provisions that modify that rule are not engaged.
The Court was careful to distinguish earlier authority. R v Tait and Bartley had applied double-jeopardy considerations to a Crown appeal, but that case was decided before the enactment of Pt 1B of the Crimes Act and arose under a different statutory appellate regime. The principles stated in Tait and Bartley could not be transplanted into the quite different regime created by s 16A. The Court also noted that the Victorian provisions could not, of their own force, speak to the sentencing of federal offences; they could only be relevant if picked up by the Judiciary Act. Because no picking-up was required, the provisions simply fell away.
In short, the Court decided the appeal the way it did because the federal Parliament has legislated a comprehensive sentencing code that leaves no room for the automatic double-jeopardy discount the appellant sought to invoke. The Victorian legislation was therefore irrelevant, the Court of Appeal had not erred, and the appeal was dismissed.
Before and after state of the law
Before Bui the law was unsettled. The seminal decision in R v Tait and Bartley had treated double jeopardy as a relevant consideration on a Crown appeal against sentence, describing the offender's freedom as being placed in jeopardy a second time. That reasoning was applied in a number of intermediate appellate decisions. However, those cases did not arise under Pt 1B of the Crimes Act. After the introduction of s 16A, courts had to decide whether the statutory language could accommodate the earlier common-law approach. Intermediate courts reached differing conclusions. In Director of Public Prosecutions (Cth) v De La Rosa a majority appeared willing to treat presumed anxiety as falling within s 16A(2)(m), while Simpson J required actual evidence of mental condition. In Victoria, the Court of Appeal in the present matter and in Director of Public Prosecutions (Vic) v Karazisis had held that Victorian provisions excluding double jeopardy could apply to federal appeals. The Tasmanian Court of Criminal Appeal in R v Talbot took a contrary view.
After Bui the position for federal offences is clear. Section 16A is not to be read as containing or permitting an automatic discount for the presumed distress of re-sentencing. The statute requires an individualised assessment of all relevant and known circumstances; a fixed discount is foreign to that exercise. Because the federal law is complete, s 80 of the Judiciary Act is not engaged and State provisions that modify the common-law rule against double jeopardy have no application. Sentencing judges and appellate courts dealing with federal matters must therefore sentence according to s 16A without subtracting an amount simply because the Director has appealed. Actual evidence of severe anxiety that amounts to a proven mental condition under s 16A(2)(m) may still be taken into account, but only on the ordinary basis that it is relevant and known, and its weight will vary from case to case.
The decision also confirms that the common-law principle of double jeopardy, while a foundational value expressed in the maxim nemo debet bis vexari, does not operate at the punishment stage in federal sentencing in the manner previously assumed in some intermediate courts. The law after Bui is therefore more tightly tied to the statutory text and less influenced by pre-Pt 1B appellate practice.
Key passages with plain-English translation
Paragraph [11]: "Section 16A does not accommodate the 'principle' which the appellant seeks to introduce. … Application of an automatic discount would not be consistent with the requirement of s 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. And to read s 16A in the manner submitted by the appellant would be to gloss the text impermissibly by introducing a notion for which there is no textual foundation."
Plain-English translation: The law does not let judges knock a fixed percentage off a sentence simply because the prosecutor has appealed. Every sentence must be fitted to the whole picture of the offence and the offender. Adding an extra rule that is not written in the statute is not allowed.
Paragraph [15]: "There it is said that the court must take into account 'such of the following matters as are relevant and known to the court' (emphasis added)."
Plain-English translation: The list in s 16A(2) is not a menu of automatic discounts. The judge only considers the listed matters if they actually matter in the particular case and if the judge knows about them from evidence or concession. Presumed feelings that everyone might have are not automatically "known to the court".
Paragraph [20]: "Re-sentencing is able to occur and will occur according to s 16A without reference to that presumed state of affairs."
Plain-English translation: Appeal courts can do their job of re-sentencing perfectly well by applying the federal statute. They do not need to add an extra step that subtracts points for the stress of being sentenced twice. The statute is sufficient on its own.
Paragraph [23]: "The 'principle' of double jeopardy relied upon by the appellant is not accommodated by the sentencing provisions of s 16A. No question of picking up the Victorian provisions arises. There is no need to resort to the Victorian provisions because the judge-made rule does not apply in the context of s 16A."
Plain-English translation: Because the federal sentencing law does not include the double-jeopardy discount the appellant wanted, there is nothing for the Victorian legislation to change. The Victorian rules therefore drop out of the picture entirely.
These passages are the analytical heart of the judgment. They repeatedly return to the statutory text and refuse to imply additional common-law overlays that would alter the statutory command.
What fact patterns trigger this precedent
The precedent is triggered whenever a Commonwealth offender is re-sentenced on a successful Director's appeal against an assertedly inadequate sentence and seeks to invoke presumed anxiety or an automatic discount arising from the fact of being sentenced a second time. It applies to all federal offences because s 16A governs the sentencing of every person convicted of an offence against a law of the Commonwealth. The decision is not limited to drug-importation cases; it extends to fraud, people-smuggling, tax offences, or any other federal crime where a Crown appeal is brought.
The precedent is engaged only on a prosecution appeal. It has nothing to say about offender appeals or about first-instance sentencing. It is also confined to federal matters; the position for State offences continues to be governed by the relevant State legislation (several of which contain provisions similar to the Victorian sections considered in Bui). The fact pattern that most clearly calls for the application of Bui is one in which the offender places before the appeal court evidence or argument that he or she has suffered or will suffer stress or anxiety from the appeal process and asks the court to reduce the sentence on that account as a matter of presumed double jeopardy. In such a case the court must disregard that consideration except to the extent that concrete evidence of a mental condition is both relevant and known within the meaning of s 16A(2)(m).
How later courts have treated it
The judgment itself reviews and positions itself against earlier authority. It follows the approach taken in Hili v The Queen and Johnson v The Queen that s 16A accommodates only those common-law principles that can be fitted into its language without glossing the text. It distinguishes R v Tait and Bartley on the basis that that decision was given in the absence of Pt 1B and under a different appellate regime. It cites with approval the textual analysis in Pearce v The Queen that double jeopardy is a value underpinning the criminal law but is not a single inflexible rule applying at every stage of the criminal process.
The Court notes the conflicting intermediate views expressed in Director of Public Prosecutions (Cth) v De La Rosa. It implicitly prefers Simpson J's insistence on actual rather than presumed mental condition, while acknowledging that Allsop P and Basten JA had taken a broader view influenced by their understanding of the width of s 16A(2). By emphasising the words "relevant and known to the court", the High Court resolves that difference in favour of the narrower construction for federal matters.
The judgment also records that the weight of intermediate appellate authority before it had favoured the application of State provisions excluding double jeopardy. By rejecting the need to pick up those provisions, the High Court authoritatively settles the federal position and removes the conflict that had existed, at least for Commonwealth prosecutions.
Still-open questions
The judgment leaves several practical questions unresolved. First, it acknowledges that there was unchallenged evidence of actual anxiety suffered by Bui as a result of the appeal. That evidence was considered by the Court of Appeal but found insufficient to warrant any further reduction. The High Court does not decide what weight should be given to proven severe anxiety that rises to the level of a mental condition under s 16A(2)(m). Sentencing judges are therefore left to assess such evidence case by case, guided only by the statutory requirement that the matter be relevant and known.
Second, the Court does not address whether a different outcome might arise if the Commonwealth Parliament were to enact an express provision dealing with double jeopardy on appeal. The present decision turns on the absence of any such provision and the completeness of the existing s 16A scheme.
Third, the interaction between s 16A and State laws in areas other than double jeopardy (for example, procedural rules or evidentiary provisions) is not explored. The judgment is tightly focused on the double-jeopardy question.
Finally, the position for appeals brought by the Attorney-General rather than the Director, or for appeals from sentences imposed in territories rather than States, is not expressly considered, although the reasoning would appear to apply equally.
Practitioners should therefore be alert that while Bui closes the door on an automatic double-jeopardy discount, it leaves open the possibility that compelling evidence of serious psychological harm caused by the appeal process may still influence the ultimate sentence under the ordinary s 16A(2)(m) analysis. The precise boundaries of that residual discretion will have to be worked out in future cases.
Catchwords
Bui v Director of Public Prosecutions (Cth)
Judgment (62 paragraphs)
[1]
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1
[2]
P F Tehan QC with G F Meredith for the appellant (instructed by Greg Thomas, Barrister & Solicitor)
[3]
W J Abraham QC with D D Gurvich for the respondent (instructed by Commonwealth Director of Public Prosecutions)
[4]
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)
[5]
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
[6]
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.
[7]
Criminal Procedure Act 2009 (Vic), ss 289(2), 290(3).
[8]
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.
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).
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.
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 Prosecutions[1] applying the reasoning of Gibbs J in Peel v The Queen[2]. 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.
[9]
"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."
[10]
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].
[11]
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].
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].
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:
[12]
"(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP[[9]] satisfies the court that-
[13]
(a) there is an error in the sentence first imposed; and
[14]
(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.
[15]
(3) In any other case, the Court of Appeal must dismiss an appeal under section 287."
[16]
"(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.
[17]
(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.
[18]
(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."
[19]
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 Act[11] 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 weight of authority of intermediate appellate courts was said to support that conclusion[13].
This appeal is limited, by the terms of the grant of special leave to appeal given by Gummow, Hayne and Bell JJ, to the question whether the Victorian provisions apply to a Crown appeal against sentence instituted by the respondent. The appellant contends that the Court of Appeal was wrong to hold that those provisions, which in effect forbid the Court of Appeal taking into account the element of double jeopardy involved in the prisoner being sentenced again, apply in the exercise of federal jurisdiction by a State court of appeal when it determines appeals against sentences for federal offences. The appellant argues that, in deciding the respondent's appeal, the Court of Appeal should (but did not) have had regard to what the appellant described as "the principle" of "double jeopardy", a "principle" which required the Court of Appeal to take account of the presumed distress and anxiety of the appellant occasioned by having to stand for sentence again.
The appellant's argument concerning the relevance of double jeopardy to the determination of a prosecution appeal against inadequacy of sentence necessarily recognised the need to begin examination of the issue by consideration of s 16A of the Crimes Act. The argument depended upon the concept of double jeopardy being one of the matters to be taken into account under that section. And on that footing, the question would be whether s 16A would prevent the Victorian provisions being picked up by ss 68, 79 or 80 of the Judiciary Act. If s 16A does incorporate considerations of double jeopardy, it may be that the Victorian provisions are not "applicable" so that s 68(1)[14] cannot apply[15]; or that s 16A may be said to provide "otherwise" than the Victorian provisions so that s 79(1)[16] cannot apply; or that the Victorian provisions are "inconsistent" with s 16A within the meaning of s 80[17]. Because the Victorian provisions are expressed to modify the common law, it may be considered appropriate to direct attention, in the first place, to s 80. Before doing so it is necessary to consider the appellant's contention concerning s 16A.
[20]
The "principle" of double jeopardy relied upon by the appellant is not accommodated by the sentencing provisions of s 16A. No question of picking up the Victorian provisions arises. There is no need to resort to the Victorian provisions because the judge-made rule does not apply in the context of s 16A.
The appeal should be dismissed.
[21]
(1986) 161 CLR 119 at 123-125 per Gibbs CJ, Mason and Wilson JJ, 127-128 per Brennan J, 130 per Deane J; [1986] HCA 50. ↑
[22]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [20]. ↑
[23]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [27]. ↑
[24]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [28]. ↑
[25]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [31]-[46]. ↑
[26]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [97]. ↑
[27]
These provisions are similar to those adopted in other States: see Crimes (Appeal and Review) Act 2001 (NSW), s 68A; Criminal Law Consolidation Act 1935 (SA), s 340; Criminal Appeals Act 2004 (WA), s 41; Criminal Code (Tas), s 402(4A); Criminal Code (NT), s 414(1A). The impetus for the introduction of these provisions was a meeting of the Council of Australian Governments (COAG), which agreed to implement the recommendations of the Double Jeopardy Law Reform COAG Working Group: see Director of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14 at 36 [83]. ↑
[28]
This term is defined by s 3 of the Criminal Procedure Act 2009 (Vic) to mean "the Director of Public Prosecutions for Victoria", but see the discussion at [4] regarding the position of the respondent. ↑
[29]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [66], referring to R v LK (2010) 241 CLR 177 at 193; [2010] HCA 17. ↑
[30]
"So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters." ↑
[31]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [69]. ↑
[32]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [71], referring to R v Baldock (2010) 269 ALR 674 (Court of Appeal of the Supreme Court of Western Australia); Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 (Court of Criminal Appeal of the Supreme Court of New South Wales); contra R v Talbot [2009] TASSC 107 (Court of Criminal Appeal of the Supreme Court of Tasmania). ↑
[33]
"The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
[34]
(b) their examination and commitment for trial on indictment; and
[35]
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
[36]
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section." ↑
[37]
Putland v The Queen (2004) 218 CLR 174 at 179-180 [7] per Gleeson CJ, 189 [41] per Gummow and Heydon JJ, 215 [121] per Callinan J; [2004] HCA 8. ↑
[38]
"The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable." ↑
[39]
Davern v Messel (1984) 155 CLR 21 at 29-30; [1984] HCA 34; see also Pearce v The Queen (1998) 194 CLR 610 at 614 [9]-[10], 625 [53]-[54]; [1998] HCA 57. ↑
[40]
Pearce v The Queen (1998) 194 CLR 610 at 614 [10], 626 [56]; see also R v Carroll (2002) 213 CLR 635 at 660-661 [84]; [2002] HCA 55. ↑
[41]
Pearce v The Queen (1998) 194 CLR 610 at 614 [9]. ↑
[42]
See also Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 129. ↑
[43]
R v JW (2010) 77 NSWLR 7 at 19 [54]; see also Director of Public Prosecutions (Vic) v Karazisis (2010) 206 A Crim R 14; Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324. ↑
[44]
R v Tait and Bartley (1979) 24 ALR 473 at 476. ↑
[45]
R v Tait and Bartley (1979) 24 ALR 473 at 476. ↑
[46]
R v Tait and Bartley (1979) 24 ALR 473 at 476. ↑
[47]
R v Tait and Bartley (1979) 24 ALR 473 at 475. ↑
[48]
(2004) 78 ALJR 616 at 622 [15]; 205 ALR 346 at 353; [2004] HCA 15. ↑
[49]
(2010) 242 CLR 520 at 528 [25]; [2010] HCA 45. ↑
[50]
Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 at 378. ↑
[51]
Wong v The Queen (2001) 207 CLR 584 at 597 [31], 609-610 [71]; [2001] HCA 64. ↑
[52]
Johnson v The Queen (2004) 78 ALJR 616 at 624-625 [25]-[34]; 205 ALR 346 at 356-358. ↑
[53]
Hili v The Queen (2010) 242 CLR 520 at 528 [25]; Johnson v The Queen (2004) 78 ALJR 616 at 622 [15]; 205 ALR 346 at 353. ↑
[54]
Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 at 335 [52] per Allsop P, 345 [104] per Basten JA agreeing, 385 [280] per Simpson J. ↑
[55]
Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 at 335 [54]. ↑
[56]
Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 at 345 [106]. ↑
[57]
Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 at 385 [279]-[280]. ↑
[58]
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [81], [87]-[90]. ↑
[59]
(2003) 212 CLR 230 at 254 [62] per McHugh and Gummow JJ; [2003] HCA 12. ↑
[60]
Northern Territory v GPAO (1999) 196 CLR 553 at 576 [38]; [1999] HCA 8; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 351 [30]; [1999] HCA 9. ↑
[61]
(2003) 218 CLR 330 at 343-344 [35] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [2003] HCA 73. ↑
[62]
Blunden v The Commonwealth (2003) 218 CLR 330 at 360 [91]. ↑
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:
The appellant submitted that double jeopardy is a principle of judge-made law which informs the content that is to be given to several elements of the statutory provisions governing the sentencing of federal offenders set out in Pt 1B of the Crimes Act. In particular it was said that the words of s 16A(1) "a severity appropriate in all the circumstances of the offence" and the words of s 16A(2) "[i]n addition to any other matters" are sufficiently broad to encompass "double jeopardy". The appellant further submits that the "mental condition" of the person to be sentenced, which condition s 16A(2)(m) requires to be taken into account, is broad enough to refer to the anxiety and distress to which it may be presumed that person will suffer on re-sentencing.
It has been explained that what is referred to as the rule against double jeopardy is a manifestation of the principles expressed in the maxim nemo debet bis vexari pro una et eadem causa (a person shall not be twice vexed for one and the same cause), which is the foundation of the pleas of autrefois acquit and autrefois convict[18]. In Pearce v The Queen[19], reference was made to the rationale which had been offered for the rule by Black J in Green v United States[20], that "[t]he underlying idea" is that the State should not be allowed to make repeated attempts to convict an individual "thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty." The rule is properly understood as a value which underpins the criminal law[21].
It was also explained in Pearce v The Queen[22] that the term "double jeopardy" is not always used with a single meaning and is employed in relation to different stages of the criminal justice process, including that of punishment[23]. In this context, and taking up what was said in Green v United States, the term has been used to describe the distress and anxiety that a convicted person may feel when faced with the prospect of re-sentencing by an appeal court[24].
The first mention of double jeopardy in connection with a Crown appeal against sentence by an Australian court would appear to be by a Full Court of the Federal Court of Australia (Brennan, Deane and Gallop JJ) in 1979 in R v Tait and Bartley[25]. The Court was sitting in that case on a Crown appeal against a sentence imposed by the Supreme Court of the Northern Territory, jurisdiction to hear which was conferred by ss 24(1)(b) and 28(5) of the Federal Court of Australia Act 1976 (Cth).
The Full Court confirmed that settled principles relating to the review of a discretionary act of sentencing required that some reason must be shown for regarding the discretion confided in the Court as having been improperly exercised. An error affecting the sentence must appear before an appellate court will intervene, whether the appeal be brought by a person convicted of a crime or by the Crown[26]. However, the Court considered that a Crown appeal raises considerations which are not present in an appeal by a convicted person[27]. In Peel v The Queen[28] Barwick CJ had said that Crown appeals cut across "time-honoured concepts of criminal administration". Isaacs J said in Whittaker v The King[29] that a Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal." The Full Court observed in R v Tait and Bartley that the freedom of the person was first in jeopardy when the person was before the sentencing court and it was put in jeopardy again on a Crown appeal against sentence[30].
What was said in R v Tait and Bartley concerning the application of the principle of double jeopardy in connection with sentencing was said by reference to a very different statutory context from that which is here relevant, namely Pt 1B of the Crimes Act. The provisions in question in R v Tait and Bartley were those which provided the Federal Court with a general appellate jurisdiction. The appeals in R v Tait and Bartley were the first instituted by the Crown under the Federal Court of Australia Act. The Full Court was therefore concerned to state the principles to be observed by the Federal Court in the exercise of that jurisdiction[31] but it did so in the absence of any statutory provision dealing with sentencing principles, such as Pt 1B.
Section 16A applies of its own force to the sentencing of persons convicted of offences against Commonwealth laws. In Johnson v The Queen[32] and in Hili v The Queen[33] it was observed that, on its proper construction, s 16A accommodates the application of some common law principles of sentencing. The section has been held to accommodate principles of general deterrence[34], proportionality[35], and totality[36]. It is able to accommodate some judicially-developed sentencing principles where such principles give relevant content to the statutory expression in s 16A(1) "of a severity appropriate in all the circumstances of the offence"[37], as well as expressions such as "the need to ensure that the person is adequately punished for the offence", which appears in s 16A(2)(k).
Section 16A does not accommodate the "principle" which the appellant seeks to introduce. The appellant submitted that this principle was one of the "other matters" which "the court must take into account" in determining sentence[38] and that it was a matter that operated as an automatic "discount" on the sentence that would otherwise be imposed. Application of an automatic discount would not be consistent with the requirement of s 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. And to read s 16A in the manner submitted by the appellant would be to gloss the text impermissibly by introducing a notion for which there is no textual foundation. It would go well beyond giving relevant content to any of the expressions found in the section.
Moreover, the terms of s 16A, in particular those of sub-s (2), are addressed to matters affecting sentencing which are to be applied by all courts exercising federal jurisdiction upon sentencing. Those terms draw no distinction between the matters to be taken into account by a sentencing court at first instance or by a court on appeal. It has nothing to say about particular matters which an appeal court alone may take into account when considering re-sentencing. No warrant is therefore provided for interpreting s 16A as encompassing concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy.
In Director of Public Prosecutions (Cth) v De La Rosa[39] three out of five members of the New South Wales Court of Appeal were agreed that the reference in s 16A(2)(m) to the "mental condition" of the person to be sentenced is apt to refer to a state of distress or anxiety[40]. However, a difference in approach is evident as to the question whether s 16A(2)(m) refers to a mental condition which is to be presumed, as the "principle" drawn from the rule against double jeopardy does, or a condition which is proved by evidence.
Allsop P and Basten JA did not consider that s 16A(2)(m) was limited to a condition of distress and anxiety which was the subject of proof. Allsop P referred to the presumption as reflecting the reality of what a person facing re-sentencing would experience[41]. Basten JA was of a similar view, that the presumption was of a fact to be inferred from common experience and that it was not to be expected that s 16A(2) would require proof of such a fact[42]. Simpson J, however, considered that par (m) referred to the actual mental condition of a person, not his or her presumed condition and that a condition of distress or anxiety must be demonstrated before the provision applies. In her Honour's view the weight to be accorded to such evidence would vary from case to case[43].
Allsop P and Basten JA were influenced in their assessment by their understanding of the width of the intended operation of s 16A(2). Nevertheless, the opening words of that sub-section bear out the view expressed by Simpson J. There it is said that the court must take into account "such of the following matters as are relevant and known to the court" (emphasis added).
In this case there was evidence of actual anxiety and distress which the appellant suffered as a result of the institution of the appeal by the respondent. That evidence was unchallenged and it was considered by the Court of Appeal in determining whether to intervene and in re-sentencing, although Ross AJA was unpersuaded that the hardship to the appellant was sufficient to warrant a reduction in the appellant's sentence[44].
Whilst s 16A, on its proper construction, is able to accommodate some judge-made sentencing principles, for the reasons outlined above it leaves no room to accommodate the "principle" for which the appellant contends. It was pointed out in R v Gee[45], by reference to Deputy Commissioner of Taxation v Moorebank Pty Ltd[46] and other cases[47], that "[p]rovisions such as ss 64, 68(2) and 79 of the Judiciary Act do not operate to insert a provision of State law into a Commonwealth legislative scheme which is 'complete upon its face' where, on their proper construction, those federal provisions can 'be seen to have left no room' for the picking up of State law" (footnote omitted).
The "principle" relied upon by the appellant is judge-made law. If it were to be picked up it would be via s 80 of the Judiciary Act, which allows the common law of Australia to apply in a case in certain circumstances. Even then the terms of s 80 refer to the common law "as modified … by the statute law in force in the State … in which the Court in which the jurisdiction is exercised is held".
Submissions on this appeal concerning s 80 focused upon whether there was any disconformity between the Victorian provisions and s 16A, being a "law of the Commonwealth". However, the opening words of s 80 provide that the common law (as modified) applies if the laws of the Commonwealth "are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment". The words are apt to speak of a gap in Commonwealth statute laws. Thus in Blunden v The Commonwealth[48] the plurality held that the exercise of the necessary federal jurisdiction was by s 80 directed to be the common law in Australia, as modified by the statute law in force in the relevant Territory. The plurality held that the provisions of the federal statute law, apart from s 80 would be insufficient to provide the appellant with any adequate remedy. Kirby J, in expressing agreement with the view of the plurality, said that the common law, modified by the statute law of the Territory, "applies to fill the gaps in the written law."[49]
The punishment of which s 16A(1) speaks is a sentence "of a severity appropriate in all the circumstances of the offence." Presumed anxiety and distress on re-sentencing is not one of the matters to which the Court is to have regard under sub-s (2), for the reasons earlier given[50]. That does not mean that there is a gap or omission in Commonwealth statute law such as to bring s 80 into play. Re-sentencing is able to occur and will occur according to s 16A without reference to that presumed state of affairs.