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[2012] HCA 1
respondent. Appeal dismissed.
9 cited instruments linked from this judgment.
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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2,711 words · generated 24/04/2026
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.
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 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.
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.
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).
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.
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.
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1
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)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
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.
Criminal Procedure Act 2009 (Vic), ss 289(2), 290(3).
"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].
"(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
(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."
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [20]. ↑
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [27]. ↑
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [28]. ↑
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [31]-[46]. ↑
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [97]. ↑
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]. ↑
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. ↑
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. ↑
"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." ↑
"The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(b) their examination and commitment for trial on indictment; and
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
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." ↑
"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." ↑
R v Tait and Bartley (1979) 24 ALR 473 at 476. ↑
R v Tait and Bartley (1979) 24 ALR 473 at 475. ↑
(2004) 78 ALJR 616 at 622 [15]; 205 ALR 346 at 353; [2004] HCA 15. ↑
(2010) 242 CLR 520 at 528 [25]; [2010] HCA 45. ↑
Director of Public Prosecutions (Cth) v Said Khodor El Karhani (1990) 21 NSWLR 370 at 378. ↑
Wong v The Queen (2001) 207 CLR 584 at 597 [31], 609-610 [71]; [2001] HCA 64. ↑
Johnson v The Queen (2004) 78 ALJR 616 at 624-625 [25]-[34]; 205 ALR 346 at 356-358. ↑
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. ↑
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. ↑
Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 at 335 [54]. ↑
Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 at 345 [106]. ↑
Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 at 385 [279]-[280]. ↑
Director of Public Prosecutions for the Commonwealth of Australia v Bui [2011] VSCA 61 at [81], [87]-[90]. ↑
(2003) 212 CLR 230 at 254 [62] per McHugh and Gummow JJ; [2003] HCA 12. ↑
Bui
Director of Public Prosecutions
[2011] VSCA 61
[2009] TASSC 107
[2004] HCA 8
[1998] HCA 57
[2001] HCA 64
[1999] HCA 8
[1999] HCA 9
Appeal dismissed.
[2003] HCA 73
(1986) 161 CLR 119
(1971) 125 CLR 447
(2010) 241 CLR 177
(2010) 269 ALR 674
(2010) 273 ALR 324
(2004) 218 CLR 174
(1984) 155 CLR 21
(1998) 194 CLR 610
(2002) 213 CLR 635
(2010) 77 NSWLR 7
(1979) 24 ALR 473
(1928) 41 CLR 230
(2004) 78 ALJR 616
(2010) 242 CLR 520
(1990) 21 NSWLR 370
(2001) 207 CLR 584
(2003) 212 CLR 230
(1988) 165 CLR 55
(1999) 196 CLR 553
(1999) 198 CLR 334
(2003) 218 CLR 330
[2010] HCA 17