DPP (C'th) v Bui [2011] VSCA 61

3 On 27 April 2010 the respondent pleaded guilty in the County Court to the single count of importation of a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code (Cth). She was sentenced to three years imprisonment, to be released forthwith upon giving security by recognisance of $5,000.00 and to be of good behaviour for three years. The sentence commenced on 30 April 2010.

4 The Director of Public Prosecutions (Cth) has appealed against the sentence imposed, contending that it is manifestly inadequate. Before turning to the grounds of appeal it is convenient to briefly set out the circumstances of the offending. This information is derived from the agreed summary of facts which was read into the court record in the proceedings below.

5 In 2007 or 2008 the respondent met a person she knew as 'Ho'. Ho told her that he arranged for people to bring heroin back from Vietnam to Australia and he paid them up to $20,000. In October 2008, the respondent was running short of money and during a phone conversation with Ho, asked if she could borrow $3,000. Ho agreed to lend her the money and said that she could decide if she wanted to pay the money back or bring drugs back from Vietnam. Ho told her that she would be paid $8,000 per pellet and she agreed to bring the pellets back because she needed the money to pay off her debts.

6 About a month after borrowing the money, the respondent arranged to travel to Vietnam with some friends. The respondent told Ho that she was going to Vietnam and on the day before she left, Ho met her and gave her the name and contact phone number of a person in Vietnam who would give her the drugs to bring back to Australia. Ho also told her to put the drugs inside her body and gave her a different number to contact him upon her return to Australia.

7 On 30 January 2009 the respondent flew from Melbourne to Darwin and left Australia from Darwin International Airport on a flight to Vietnam. During her stay in Vietnam, she had several telephone conversations with Ho about bringing drugs back to Australia. Two associates of Ho provided the respondent with four pellets of drugs to be inserted into her body prior to returning to Australia.

8 The respondent departed Vietnam for Australia on 10 February 2009. On 11 February 2009 at approximately 7.00am, the respondent's flight arrived at Darwin International Airport from Ho Chi Minh City, Vietnam. The respondent is an Australian citizen and was travelling on her own passport.

9 On arrival into Darwin, the respondent was processed and cleared by the Australian Customs Service and then boarded a domestic flight from Darwin to Melbourne. Shortly thereafter, the Australian Federal Police ('AFP') received intelligence that the respondent would be concealing drugs internally on her arrival into Melbourne.

10 After arriving in Melbourne and exiting the plane the respondent was approached by AFP agents. When the agents spoke to the respondent, she denied that she was concealing narcotics internally. She was cautioned and detained for the purposes of an internal search and was conveyed to John Fawkner Hospital for a medical examination. Upon arrival at the hospital arrangements were made for the respondent to undergo a Computerised Technology ('CT') scan. Prior to the scan, one of the AFP agents commenced a taped record of interview and the respondent was cautioned. She confirmed her consent to an internal search and again denied internally concealing drugs. Shortly after the scan was completed the radiologist informed the AFP agents that the respondent was internally concealing four large foreign objects. The respondent then made admissions to having four foreign objects concealed internally. She further stated that she placed them there herself with the help of a person in Vietnam. She said she did not know what was in the foreign objects but knew that it was drugs.

11 AFP forensic services conducted an analysis of the items the respondent removed from her body and established a total net weight of 280.28 grams of the substance within the items. An analysis of the substance conducted by the National Measurement Institute ('NMI') revealed that it contained approximately 70.4% pure heroin. The calculated total pure weight of heroin seized was 197.3 grams. The potential street level value of 197.3 grams of heroin, sold at a purity level of 20% is estimated at $164,400. The potential street value of the same amount of heroin sold at a purity level of 10% is $328,800. The estimated wholesale value of 197.3 grams of heroin is between $71,680 and $100,800.

12 Before the County Court the respondent gave sworn evidence of her undertaking to cooperate with the law enforcement agencies pursuant to s 21E of the Crimes Act 1914 (Cth). The Director tendered the s 21E undertaking signed by the respondent and the attached statements made by the respondent as an exhibit on the plea.

13 On the plea counsel for the respondent relied on two major points in mitigation, namely that the respondent's immediate incarceration would cause exceptional hardship to her infant twin daughters and that she had given an undertaking to assist law enforcement agencies in future proceedings pursuant to s 21E.

14 Forensic psychologist Pamela Mathews and Clinical Psychologist Bernard Healey were called to give evidence for the respondent. Ms Mathews gave supporting character evidence as someone who had known the respondent in a social context for several years. Mr Healey gave evidence as the respondent's treating psychologist and in relation to maternal deprivation and potential custody management issues. No other oral evidence was called by counsel for the respondent.

15 Counsel for the respondent tendered a clinical psychologist report prepared by Mr Healey and made submissions in relation to the contents of the report. Counsel also tendered a letter dated 17 February 2010 from Susan Jacobs, Consultant Neonatologist at the Royal Women's Hospital. Personal details, family background and the potential impact of incarceration of the respondent upon her infant twin daughters were outlined by counsel. It was also submitted that the respondent had cooperated when interviewed and had undertaken to give future cooperation which had already attracted some harassment. The Court was also addressed in relation to the respondent's role in the offending, her plea of guilty, remorse for her actions, prior good character, relevance of specific deterrence and prospects of rehabilitation.

16 The Director submits that having regard to all the circumstances the sentence imposed is disproportionate to the seriousness of the offence and is manifestly inadequate. It is also contended that the sentencing judge fell into material error of fact or law. It is convenient to deal with the last point first.

17 The sentencing of Commonwealth offenders is governed by Part IB of the Crimes Act 1914 (Cth). In particular s 16A(1) of that Act provides that a court must impose a sentence or make an order that 'is of a severity appropriate in all the circumstances of the offence'.

18 Section 16A(2) sets out a non-exhaustive list of the factors to be taken into account when a court sentences a person for a federal offence. Such factors are to be taken into account to the extent that they are relevant and known to the court. One of the factors to be taken into account is set out in s 16A(2)(p):

the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

19 The circumstances in which an offender can legitimately seek an exercise of mercy on the ground that his/her imprisonment is likely to cause hardship to members of his/her family, are limited. At common law it has long been the position that unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration.[1]

20 The exceptional circumstances test has been adopted throughout Australia as governing the position at common law.[2] There is also a uniform national position in relation to sentencing for Commonwealth offences. The requirement in s 16A(2)(p) of the Crimes Act 1914 (Cth) - that the Court consider 'the probable effect' of the sentence on family and dependents - has been construed as being subject to the exceptional circumstances test.[3]

21 These issues were recently considered by a bench of five of this Court in Markovic v R; Pantelic v R ('Markovic').[4] In that case the Court rejected the contention that even if the circumstances of family hardship were not adjudged exceptional, a sentencing court could nevertheless be called on to exercise, on that ground, what was sought to be characterised as a 'residual discretion of mercy'.[5]

22 In rejecting this contention the Court reasoned that reliance on family hardship is itself an appeal for mercy. Properly understood, therefore, the purpose and effect of the 'exceptional circumstances' test is to limit the availability of the court's discretion to exercise mercy on that ground. On this basis the Court concluded that there can be no 'residual discretion' to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.

23 The Director contends that the sentencing judge erred in her consideration of this issue. Two aspects of her Honour's reasons are relied upon in this regard. First, it is submitted that her Honour wrongly considered whether family hardship combined with the respondent's cooperation with the authorities, constituted exceptional circumstances. The correct approach would have been to consider whether family hardship alone constituted exceptional circumstances warranting a non custodial disposition.

24 The second error is said to relate to her Honour's failure to assess the issue of family hardship on the balance of probabilities.

25 I accept the Director's submissions. Her Honour's consideration of family hardship amounted to an error of law. I note that her Honour's decision in this regard preceded this Court's decision in Markovic and accordingly no criticism can be made of her Honour. But the fact remains that there is error in the sentence first imposed. The errors are apparent in the following extracts from her Honour's decision.

[19] Mr Moglia submitted that these circumstances are exceptional and would allow me to impose a sentence which you could serve entirely in the community under a Recognisance Release Order. Mr Stevens, who appeared on behalf of the Commonwealth Director of Public Prosecutions took issue with this submission, contending that prison causes hardship in almost every case, and here it should be taken into account in the general sentencing synthesis...

[23] ... Because of its great potential for causing harm in the community and because of the pressing need for general deterrence it is unusual for this offence to be punished in any other way than a sentence of immediate custody. The maximum penalty for the offence is 25 years' imprisonment or a fine of 5000 penalty units. But I must consider whether the potential for harm to your infant twins and the undertaking you have given to assist the authorities together amount to exceptional circumstances making imprisonment unnecessary...

[25]... Apart from considering whether exceptional circumstances apply I have also considered a number of other circumstances, as I am required to do under s. 16A of the Crimes Act 1914. One of those is the assistance you have already given the authorities...

[28]... In this case a prison sentence to be served immediately would be warranted but for these considerations. The first is whether hardship to your infant twins and to those upon whom the burden of their care would fall caused by your imprisonment could amount to exceptional circumstances requiring your release into the community. As I have said in a previous case involving a baby only a few months old, there would be little support for this from the authorities. As I also said in that case, the hardship to family members in such circumstances is common, not exceptional, and it may not yet be accepted that the harm done to an infant by separation from its mother, with the potential for enormous cost to the community in later years, amounts to exceptional circumstances.

[29] In this case, however, I have sufficient evidence before me to draw the inference that that risk exists. Your babies are four months old, but because of their premature birth their development is that of a two and a half month old baby. They are still being breastfed. Your imprisonment would separate you from them and end any prospects of breastfeeding continuing and it would also endanger their emotional development as I have already set out.

[30] I am satisfied that all these circumstances particularly when considered together with the risk you have taken in committing yourself to assisting the prosecution in the future to amount to exceptional circumstances. Accordingly, I shall not impose a term of imprisonment to be served immediately.

[31] If I were not satisfied that there were exceptional circumstances I would take the step of exercising my discretion to extend mercy to you to bring about the same result.[6]

26 Two errors are apparent from her Honour's reasons for sentence.

27 First, it is clear from the highlighted extracts at paragraphs [23] and [30] of the reasons for sentence that her Honour conflated her consideration of family hardship with the mitigating circumstance that the respondent had cooperated with the authorities. In particular, her Honour approached the sentencing task by considering whether these factors, in combination, amounted to exceptional circumstances. Such an approach is erroneous. Family hardship must - on its own - be adjudged to constitute exceptional circumstances before it can be taken into account as a sentencing consideration.

28 The second error appears in paragraph [29] of the reasons for sentence. Here her Honour says that there is 'sufficient evidence before me to draw the inference that that risk exists'. It is apparent from the previous paragraph of her Honour's reasons that the risk referred to is a risk that the hardship to the respondent's family amounts to exceptional circumstances. It is an error to refer to the existence of exceptional circumstance in the context of family hardship in terms of risk. Such matters are to be assessed on the balance of probabilities. This is also consistent with the language of s 16A(2)(p) of the Crimes Act 1914 (Cth) which speaks of 'the probable effect' that a sentence would have on the offender's family or dependants. As Spigelman CJ observed in R v Togias:[7]

It is of some significance that the Parliament has identified this matter in terms of a "probable effect", not merely a "possible effect".[8]

29 For completeness I note that her Honour's finding (at [31]) that she would have achieved the same result, namely a non-custodial disposition, using her discretion to extend mercy if exceptional circumstances were not made out is also wrong in law, having regard to Markovic.

30 I have also considered whether, despite the errors identified, there was sufficient evidence in the proceedings below to support a conclusion that this was an exceptional case such that family hardship was a relevant sentencing consideration. In this context I note that the Court in Markovic held that:

...it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.[9]

I accept that sentencing the respondent to a term of imprisonment will have a detrimental effect on her infant children but I am not persuaded that the evidence is sufficiently cogent to support a conclusion that the circumstances of this case can be regarded as exceptional.[10]

31 It is not enough that the Director satisfies the Court that there is an error in the sentence originally imposed. The Court must also be satisfied that a different

31 sentence should be imposed.[11] That consideration brings me to the Director's first ground of appeal, that the sentence is manifestly inadequate.

32 In my view there is considerable force in the Director's submissions in relation to this ground.

33 What reveals manifest inadequacy of sentence is consideration of all the matters that are relevant to fixing the sentence.[12]

34 Division 2 of Part IB of the Crimes Act 1914 (Cth) sets out general sentencing principles that are to be applied in sentencing federal offenders. Division 1 provides definitions of terms used in the Part.

35 Chief among the principles stated in Division 2 of Part IB is that provided by s 16A(1): '[i]n 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'. Section 16A(2) prescribes a non-exhaustive list of matters that a sentencing court must take into account in determining the sentence to be passed or the order to be made, if those matters are relevant and known to the court. Section 16A(2) recognises that there may be other matters which may or must be taken into account.

36 As noted in Johnson v R,[13] s 16A of the Crimes Act 1914 (Cth), on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of 'totality' discussed in Mill v R.[14] Section 16A also accommodates some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression 'of a severity appropriate in all the circumstances of the offence' used in s 16A(1), as well as some of the expressions used in s 16A(2), such as 'the need to ensure that the person is adequately punished for the offence.'[15]

37 While general deterrence is not specifically listed in s 16A(2) it is clearly a factor which must be taken into account.[16] The maximum penalty for the offence in question, 5000 penalty units and/or 25 years imprisonment,[17] underscores the relevance of general deterrence.[18]

38 The general sentencing principles in respect of those involved in the importation of drugs are well settled. Even those lower down in the hierarchy of importation deserve condign punishment, for without their participation the narcotics trade would collapse. As Winneke P (with whom Callaway and Buchanan JJA agreed) said in R v Ngui and Tiong:[19]

This court has frequently remarked upon the pernicious nature of the heroin trade and of the evils which it has foisted upon our society. Those who engage in importing quantities of this drug, no matter what their level of participation, must expect condign punishment in which principles of deterrence will play a prominent part. That punishment must involve, except in the rarest of circumstances, immediate imprisonment...[20]

39 More recently, in Nguyen v R,[21] Maxwell P observed:

The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.

The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.[22]

40 The respondent was not a principal in this drug importation exercise, but the role she played was significant. Drug trafficking across international borders can only flourish if there are those who are prepared to act as couriers.[23]

41 In terms of the gravity of the offending in this case, the quantity of heroin imported (197.3 grams) was substantial having regard to the fact that a 'marketable quantity' is 2 grams and a commercial quantity is 1.5kg.[24] Her Honour found that the potential street value of the quantity imported was $164,400.

42 The respondent's motivation was greed and the offence was considered and planned.[25] Participation for financial reward may be seen to increase the objective gravity of the offending.[26] The fact that an offender needs money to pay off a debt does not necessarily reduce culpability.[27] The respondent took the risk of facilitating the movement of a substantial quantity of drugs which, if circulated, would have inflicted real and lasting harm upon the community.

43 I am conscious of the fact that sentencing is an exercise of broad judicial discretion and on appeal this Court is not entitled to simply substitute its opinion for that of the sentencing judge. A just sentence involves a synthesis of a number of factors including the seriousness of the offence, the degree of criminality of those involved and mitigating circumstances personal to the accused.

44 Bearing in mind that her Honour did not find that there were exceptional circumstances relating solely to the probable effect of a custodial sentence upon the respondent's family, the sentence was inconsistent with sentences imposed in similar cases in Victoria and elsewhere within the Commonwealth.[28] Such past sentences can, and should, provide guidance and stand as a yardstick against which to examine a sentence. But care must be taken in using what has been done in other cases. Consistency is not demonstrated by, and does not require, numerical equivalence. As the High Court recently observed in Hili v R:[29]

When it is said that the search is for 'reasonable consistency', what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression.[30]

45 I acknowledge that there were very significant mitigating factors in this case including the fact that the respondent pleaded guilty at an early stage and had cooperated with the authorities. The respondent had also agreed to give evidence for the Crown in the prosecution of others involved in the importation operation. In such circumstances considerable leniency is warranted, in part to encourage others to adopt a similar course.[31]

46 But even giving full weight to all the factors in mitigation the gravity of the offending was such that an immediate custodial sentence was the appropriate disposition.

47 The question that now arises is the impact of recent amendments to the Criminal Procedure Act 2009 (Vic) ('the Act') which deal with the issue of double jeopardy in relation to Crown appeals against sentence. Sections 289 and 290 of the Act are relevant in this regard.

48 Section 289 provides:

(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP 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.

49 Section 290 provides:

(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.

50 Since 1 January 2010, these new provisions have governed the conduct of Crown appeals against sentence in this Court.

51 In DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis[32] ('Karazisis') a five member bench of this Court considered the meaning of 'double jeopardy' in the context of ss 289(2) and 290(3).

52 Before turning to the Court's conclusion as to the proper construction of these provisions it is convenient to first briefly canvass the approach taken prior to the introduction of ss 289(2) and 290(3).

53 Crown appeals against sentence have always been regarded as raising different considerations to those presented in appeals by convicted persons. It was thought that such appeals should only be brought in 'rare and exceptional' cases to establish some point of principle[33] and that 'manifest inadequacy alone' was insufficient 'to warrant appellate intervention'. As Redlich JA said in DPP v Bright ('Bright'):[34]

Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be 'clear and egregious', the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and 'undermine public confidence in the ability of the courts to play their part in deterring the commission of crime'.[35]

54 Further, the Court has always had a residual discretion to refuse to intervene even if sentencing error has been demonstrated.

55 In Karazisis the Court considered the following questions:

(i) whether the element of double jeopardy has been removed entirely as a relevant principle in Crown appeals;

(ii) if so, whether its removal as a constraint upon Crown appeals has any effect upon other factors traditionally viewed as limiting the scope of such appeals; and

(iii) if so, what is that effect?

56 In dealing with these questions the Court observed that, conceptually, a Crown appeal has traditionally given rise to three separate questions which can be described as 'stages'. First, the Court considered the nature of the sentencing error in order to determine whether it satisfied the common law requirements, summarised in R v Clarke ('Clarke')[36] and Bright,[37] which were intended to ensure that such appeals should be 'rare and exceptional', and did not unduly circumscribe the sentencing discretion.[38] Secondly, even if the error met those requirements, the Court would consider whether, for reasons of principle or because of discretionary considerations, it should decline to intervene because it did not consider that a different sentence should be imposed. For example, the Court would exercise what it regarded as an overriding, or residual, discretion not to intervene where it did not consider that there was a sufficient difference between the sentence imposed at first instance, and any sentence it regarded as appropriate.[39] Thirdly, if the Court did intervene, because it was a Crown appeal the Court would impose a lesser sentence than it would otherwise have imposed, which was generally toward the lower end of the appropriate range.[40]

57 The Court concluded that the Act addresses each of the stages at which double jeopardy has been regarded as a relevant consideration. Section 289 is concerned with when this Court must allow an appeal. In that sense, s 289(1)(a) addresses the first stage of the process. It eliminates double jeopardy when considering whether there has been sentencing error. Section 289(1)(b) relates to the second stage. It removes double jeopardy as a discretionary consideration when the Court determines whether it is satisfied that a different sentence should be imposed.

58 The third stage, when the Court has determined to intervene and impose a different sentence, is addressed in s 290(3). The Court held that s 290(3) removes the application of the principle of double jeopardy from the fixing of the sentence. But there are again discretionary considerations, other than double jeopardy, which may affect the sentence which the Court considers 'appropriate'. In particular the Court held that the residual discretion to refuse to intervene even if sentencing error has been shown survives, despite the fact that double jeopardy has been removed as one of the bases upon which it can be exercised.

59 The Court reasoned that the construction adopted was supported by the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (Vic). Section 289(2) was amended by the substitution of the words 'whether an appeal should be allowed' for the words originally enacted, 'whether there is error in the sentence imposed'. The Court held that the purpose of this change in wording was to emphasise that the Court of Appeal is to disregard double jeopardy when considering first the question of error, and secondly, whether it is satisfied that a different sentence should be imposed.[41] Parliament has made clear its intent that double jeopardy is to be eliminated at both the first and second stages when the Court considers whether an appeal should be allowed.

60 For completeness I note that Karazisis also dealt with whether the Director's decision whether or not to institute an appeal continues to be informed by the general principles discussed in both Clarke and Bright. But that issue is not relevant for present purposes.

61 Importantly Karazisis deals with Director's appeals in relation to Victorian offences. The application of ss 289 and 290 to appeals in respect of federal offences did not arise for determination in that case. However such a consideration clearly arises in this case and I now turn to deal with that issue.

62 The respondent submits that the requirement in s 16A(1) of the Crimes Act 1914 (Cth) that a sentencing court 'impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence', encompasses the need to moderate Crown appeals due to double jeopardy. On this basis it is submitted that there is a direct inconsistency between s 16A of the Commonwealth Act and ss 289(2) and 290(3) of the Victorian Act, and hence the Victorian provisions do not apply in the case of a Crown appeal against a sentence imposed for a federal offence.

63 In support of that proposition the respondent relied on the judgment of Blow J (with whom Crawford CJ and Porter J agreed) in R v Talbot ('Talbot').[42] In that case

the Full Court of the Tasmanian Supreme Court considered the effect of s 402(4A)(b) of the Criminal Code (Tas) in the context of sentencing federal offenders. Section 402(4A)(b) removes double jeopardy as a consideration in Crown appeals. In the course of his judgment Blow J said:

In my view s 402(4A)(b) is inconsistent with the general requirement in s 16A(1) to impose a sentence that is of appropriate severity, and therefore does not apply to re-sentencing under Commonwealth legislation: Constitution, s 109. Counsel did not submit otherwise at the hearing of the appeal.[43]

64 I note at the outset that his Honour's conclusion appears to have been reached without any submissions or argument from the Crown about whether there was any inconsistency. Nor did the Court consider the operation of s 80 of the Judiciary Act 1903 (Cth).

65 I am not persuaded that there is any inconsistency between s 16A of the Commonwealth Act and ss 289(2) and 290(3) of the Victorian Act.

66 An Act of a State Parliament concerning how a court exercises power cannot have anything to say about how a court (whether State or Commonwealth) exercises federal jurisdiction.[44] Hence a law of a State providing for relevant considerations in sentencing, whether after conviction at trial or on appeal, cannot, of its own force, have anything to say about sentencing in respect of a federal offence.[45]

67 Prior to the enactment of s 289(2) it was accepted in this Court that the relevant double jeopardy principles applied to Commonwealth Crown appeals against sentence.[46] These principles applied by virtue of s 80 of the Judiciary Act 1903

68 The conditions precedent to the application of s 80 are that the laws of the Commonwealth are not applicable or their provisions are insufficient to carry them into effect or to provide adequate remedies or punishment. These prerequisites are met in respect of the common law regarding double jeopardy because the Commonwealth legislation does not deal with the approach by an appellate court in relation to a Crown appeal on sentence and because Part IB of the Crimes Act 1914 (Cth) is silent on Crown appeals.

69 Section 80 of the Judiciary Act 1903 (Cth) allows for the common law to be modified 'by the statute law in force in the State'. Subsections 289(2) and 290(3) of the Victorian Act are such modifications and on that basis those provisions operate to exclude the double jeopardy principle in Commonwealth appeals.

70 Seen in this way I can see no possible inconsistency between s 16A of the Crimes Act 1914 (Cth) and ss 289(2) and 290(3) of the Act.

71 The weight of authority also supports this conclusion. In R v Baldock ('Baldock')[48] the Court of Appeal of Western Australia reached the same conclusion in relation to the equivalent Western Australian provision abolishing double jeopardy. In DPP v De La Rosa ('De La Rosa')[49] a five member bench in the New South Wales Court of Criminal Appeal concluded that no inconsistency arose between the New South Wales equivalent to ss 289(2) and 290(3) of the Victorian Act and s 16A(1) of the Commonwealth Act. The courts in both Baldock and De La Rosa declined to follow Talbot.

72 In the event the Court rejected the respondent's general inconsistency argument it was submitted in the alternative that ss 289(2) and 290(3) were not 'picked up' by the relevant provisions of the Judiciary Act 1903 (Cth) (and therefore did not apply to Crown appeals against sentences imposed on Commonwealth offenders). This submission was advanced on the basis that the State provisions are contrary to s 16A of the Crimes Act 1914 (Cth), and in particular s 16A(2)(m), because ss 289(2) and 290(3) impliedly repeal or qualify s 16(2)(m) in a material respect.

73 This contention was considered, and rejected, by the majority of the five member Court in De La Rosa. As the plurality said in Farah Constructions Pty Ltd v Say-Dee Pty Ltd,[50] intermediate appellate courts should not depart from decisions of intermediate appellate courts in another jurisdiction on the interpretation of uniform national legislation unless convinced that the interpretation is plainly wrong.[51] I am not persuaded that the interpretation adopted by the majority of the Court in De La Rosa is plainly wrong, hence I adopt it and reject the respondent's alternative contention.

74 For the reasons given I have concluded that ss 289(2) and 290(3) of the Act apply to Crown appeals in respect of sentences imposed for federal offences.

75 The final issue arising for determination is whether the respondent should be resentenced - given that the sentence below was manifestly inadequate - or whether the Court should exercise its residual discretion and decline to intervene.

76 As noted earlier the Court has always has a residual discretion to refuse to intervene even if the sentence imposed below was manifestly inadequate or otherwise affected by sentencing error.

77 In Clarke Charles JA referred to an 'over-riding discretion which may lead to it (the Court) to decline to intervene ...[I]n this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.'[52] In Bright Redlich JA referred to '...the Court having an overarching discretion not to interfere'.[53]

78 This residual discretion survives the amendment of ss 289 and 290 of the Act, despite the fact that double jeopardy has been removed as one of the bases upon which it can be exercised. As their Honours Ashley, Redlich and Weinberg JJA observed in Karazisis:

We find it unnecessary to determine whether the term 'double jeopardy' in both ss 289 and 290 is to be confined to "anxiety and distress", in the sense spoken of in JW or whether that term has any wider import. Whatever its scope, its removal as a rationale, or sentencing principle, to be taken into account by this Court does not otherwise diminish the scope of the residual discretion.

That residual discretion is perhaps of uncertain width. It is impossible to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case. What is clear is that it survives the enactment of the new provisions. In the exercise of that discretion, the Court can dismiss a Crown appeal even where a sentence fixed below is shown to be affected by error in the House sense, and the Court is satisfied as well that a different sentence ought to have been passed.

What has changed, as a result of the new provisions, is that the Court can no longer have regard to double jeopardy when considering whether to dismiss an appeal in the exercise of its residual discretion. Arguably, that means that the Court cannot have regard to what, in New South Wales, has been described as presumptive 'anxiety and distress', in determining whether to dismiss an appeal. Moreover, the Court cannot have regard to such anxiety and distress when considering what sentence to impose after it has determined that a Crown appeal should be allowed.

The new provisions also make it clear that the residual discretion to dismiss a Crown appeal can no longer be exercised on the basis that, if the Court were to proceed to re-sentencing, it would in any event arrive at a sentence close to that imposed at first instance because the court would necessarily be giving a "discount" for double jeopardy.

However, as one learned commentator has pointed out, there remain many reasons, apart from double jeopardy, why, as a matter of discretion, this Court would conclude that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed.

Among the factors that might be relevant to the exercise of the court's discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.

It is not difficult to see how factors such as these, and perhaps a number of others, might be regarded as justifying such a course in any given case. It is important to note that they are all far removed from double jeopardy, certainly in the sense in which that term is now understood in the context of the new provisions.[54]

79 The residual discretion is sometimes described in terms of a discretion to be exercised on the basis of mitigating unfairness or injustice.[55]

80 The respondent contends that a number of interrelated considerations warrant the exercise of the residual discretion, in the circumstances of this case.

81 The first such consideration concerns the hardship imposed on the respondent by the appeal process. In her affidavit of 9 November 2010 the respondent deposes to the anxiety and distress she has suffered as a result of the institution of the appeal proceedings:

1. When I was sentenced on 30 April 2010 and realised I did not have to go to prison I felt like I had been given a new life. I was very happy and grateful with the Court for giving me this chance.
2. When I found out that the prosecution had appealed against my sentence and want me to go to prison I felt sick and very scared.
3. I am very worried about the future for my children if I go to prison. I cannot sleep properly at night.

82 In R v JW ('JW')[56] Spigelman CJ considered the extent to which such matters may be taken into account in circumstances where considerations of double jeopardy have been removed as a relevant principle in Crown appeals. In JW the Court dealt with the proper construction of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). While there are differences between the wording of s 68A of the New South Wales Act and the language used in ss 287, 289 and 290 of the Act, the provisions are relevantly indistinguishable.[57] In JW Spigelman CJ dealt with this issue at paragraph [52] in these terms:

The Crown accepted that the anxiety and distress of an offender facing a term of imprisonment may be relevant, by reason of the subjective circumstances of that particular offender. It submitted that s 68A was not directed to that consideration. I agree that such anxiety and distress may be relevant to resentencing. It is capable of being a significant indication that considerations of personal deterrence are not to be given significant weight.

83 The reasoning of Spigelman CJ in JW was followed in R v Carroll[58] and De La Rosa. In De La Rosa the Court endorsed Spigelman CJ's conclusion that s 68A, upon its proper construction, precludes reliance upon the element of 'anxiety and distress' to which all respondents to a Crown appeal are presumed to be subject.

84 In De La Rosa McClellan CJ at CL[59] dealt with the same issue at paragraph [175] and set out his understanding of the reasoning of Spigelman CJ in JW:

I have added my own emphasis to make plain my understanding of his Honour's reasoning. In short, s 68A has removed from consideration the element of anxiety and distress to which all respondents to a Crown appeal are presumed to be subject. However, it has not removed from consideration any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced. Notwithstanding s 68A, being a subjective consideration of that particular offender, it must be considered. The appropriate sentence must be informed by all of the relevant objective and subjective circumstances. It may be that, in the circumstances of a particular respondent, including his or her actual anxiety or distress, the appeal court should exercise its discretion and decline to intervene (at [95], [146]) or impose a lesser sentence.

85 The position in New South Wales therefore is that s 68A operates to prevent consideration being given to the 'anxiety and distress' presumptively faced in all cases by those who are respondents to Crown appeals. However, it does not preclude the Court from having regard to such 'anxiety and distress' insofar as it provides a significant indication that considerations of personal deterrence are not to be given significant weight.

86 In Karazisis the Court found it unnecessary to determine this issue, noting:

We find it unnecessary to determine whether the term 'double jeopardy' in both ss 289 and 290 is to be confined to "anxiety and distress", in the sense spoken of in JW or whether that term has any wider import. Whatever its scope, its removal as a rationale, or sentencing principle, to be taken into account by this Court does not otherwise diminish the scope of the residual discretion.[60]

87 As there is no binding Victorian authority on this issue I propose to follow the reasoning of Spigelman CJ in JW. It is on that basis that I have had regard to the unchallenged evidence of the respondent's anxiety and distress. But in doing so I note that this evidence falls well short of amounting to exceptional circumstances within the meaning essayed in Markovic.

88 This case also carries the particular feature that if resentenced an immediate custodial sentence would be imposed on a person who has been at large for a considerable period of time in accordance with the sentence imposed below, and who has reordered her life on the basis that she would not be imprisoned.[61]

89 Delay is also a factor in this case. The appeal was lodged in May 2010 and heard in November 2010. Judgment was then reserved pending the determination of the five member Court in Karazisis. As the Queensland Court of Criminal Appeal observed in R v Liekefett,[62] 'delay both in lodging and hearing of the appeal must always be a relevant factor'.[63]

90 I am not persuaded that the considerations to which I have referred warrant the exercise of the Court's residual discretion to decline to intervene. Indeed if such considerations were sufficient to invoke the residual discretion then almost every offender faced with a Crown appeal against sentence would be entitled to a favourable exercise of that discretion. That is not to say that the considerations relied upon cannot be taken into account in moderating the sentence to be imposed on appeal and I propose to take these matters into account in this context.

91 In my view, the appeal should be allowed, the sentence passed below should be set aside, and the respondent should be re-sentenced to a term of immediate imprisonment.

92 This was a serious offence of importing a marketable quantity of heroin for which the motive was greed. As such, it called for condign punishment to express society's condemnation and to provide the level of general deterrence necessary to deter others from engaging in similar offending (see [34]-[42] infra).

93 In addition to denunciation and general deterrence I have also had regard to the matters specified in s 16A (2) of the Crimes Act 1914 (Cth), insofar as they are relevant. In particular I have had regard to the following matters:

➢ The respondent entered a plea of guilty at the earliest opportunity, having previously made full admissions to the police. The plea of guilty has a utilitarian benefit to the justice system and is also indicative of the respondent's remorse and the appropriate acceptance of responsibly (s 16A(2)(f) and (g)).[64]

➢ The respondent consented to a CT scan and made admissions to police. The information provided by the respondent confirmed the police case against Ho (s 16 A(2)(h)).[65]

➢ Given the respondent's previous good character and remorse, I am not persuaded that there is any significant need for specific deterrence in this case. It is very unlikely that the respondent will offend again (s 16A(2)(j)).

➢ The respondent has no relevant prior convictions and is otherwise a person of good character, though I note that couriers frequently have no prior convictions. In terms of the respondent's personal circumstances I have had regard to the matters set out at paragraphs 9 - 17 of the reasons for sentence by the judge below (s16A (2)(m)).

➢ The respondents prospect of rehabilitation is very good, as demonstrated by her cooperation with the authorities (s16A(2)(n)).

94 For reasons already given I am not persuaded that family hardship is a relevant sentencing consideration in this case. In reaching that conclusion I have also had regard to the submissions advanced on the appeal and the respondent's affidavit of 9 November 2010.

95 The respondent has also given an undertaking to cooperate with the law enforcement agencies pursuant to s 21E of the Crimes Act 1914 (Cth). In the plea hearing before the County Court the Director tendered a s 21E undertaking signed by the respondent and that undertaking, together with the attached statements, was marked as Exhibit B.

96 In addition to these considerations the sentence to be imposed should be moderated having regard to the factors advanced in support of the exercise of the Court's residual discretion.

97 Having regard to all these circumstances I would resentence the respondent to four years imprisonment, commencing from today's date with a non parole period of two years. But for the respondent's s 21E undertaking I would have imposed a sentence of five years imprisonment with a non parole period of two and a half years. The discount provided in respect of the respondents promised future cooperation reflects the fact that the assistance provided, while undoubtedly useful, was not substantial. In the proceedings below the prosecutor characterised the undertaking and statement provided by the respondent as useful in terms of confirming the extent of the role of others involved in the drug trafficking enterprise and strengthened the electronic evidence that was already available to the police. The prosecution of the others involved in the drug trafficking would have continued without the respondent's assistance.[66]

98 It is, of course, in the public interest that courts extend a degree of leniency to those who inform on others involved in criminal activity.[67] It must also be acknowledged that the respondent's undertaking places her at risk of retribution by other offenders who believe that they have been betrayed. As a consequence she may have to serve her imprisonment in isolation from other prisoners, a condition which renders the sentence of imprisonment more arduous than normal. These matters are all comprehended within the discount provided for the respondent's undertaking of future cooperation.

99 Further, but for the respondent's early plea of guilty (and making no allowance for the undertaking in respect of future cooperation) I would have imposed a sentence of six years imprisonment with a non parole period of three years.

100 In the event that the respondent does not honour her undertaking by giving the assistance promised, the Director may apply to reopen the sentence imposed on the basis that it will be inadequate because of the change of circumstances. In such an event the Court may resentence the respondent to serve a further period of imprisonment, as determined in accordance with s 21E(3) of the Crimes Act 1914 (Cth).

[1] Markovic v R; Pantelic v R [2010] VSCA 105 [2] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).

[2] R v Wirth (1976) 14 SASR 291, 295-6 (Wells J); Boyle v The Queen (1987) 34 A Crim R 202, 205-6 (Burt CJ); R v Edwards (1996) 90 A Crim R 510, 516-7 (Gleeson CJ).

[3] R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23, 25-6 (Spigelman CJ) and the cases there cited.

[4] [2010] VSCA 105.

[5] Ibid [5] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).

[7] [2001] NSWCCA 522; (2001) 127 A Crim R 23.

[9] [2010] VSCA 105 [7] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).

[10] See generally R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 [25] (Spigelman CJ), [34] (Grove J).

[11] Criminal Procedure Act 2009 (Vic) s 289(1).

[12] Hili v R [2010] HCA 45; (2010) 85 ALJR 195, 208 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[13] [2004] HCA 15; (2004) 78 ALJR 616, 622 (Gummow, Callinan and Heydon JJ).

[14] (1988) 166 CLR 59

[15] Section 16A(2)(k). See generally Hili v R [2010] HCA 45; (2010) 85 ALJR 195, 201 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[16] DPP v Said Khodor El Karhani (1990) 21 NSWLR 370.

[18] Lambert and Paunovic (1990) 51 A Crim R 160.

[19] [2000] VSCA 78; (2000) 1 VR 579.

[21] [2011] VSCA 32.

[23] DPP v Alon Inbar [2005] VSCA 116, 23 (Winneke P, with whom Byrne and Osborn AJJA agreed).

[25] See the Reasons for Sentence (30 April 2010, County Court of Victoria, Wilmoth J) [3]-[6], [7].

[26] R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451.

[27] Anna Le v R [2006] NSWCCA 136.

[28] See generally De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324 and Nguyen v R [2011] VSCA 32.

[29] [2010] HCA 45; (2010) 85 ALJR 195.

[30] Ibid [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[31] R v Su [1997] 1 VR 1, 77 (Winneke P, Hayne JA and Southwell AJA); Malvaso [1989] HCA 58; (1989) 168 CLR 227, 239 (Deane and McHugh JJ); R v Cartwright (1989) 17 NSWLR 243, 252 (Hunt and Badgery-Parker JJ).

[32] [2010] VSCA 350.

[33] Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA with whom Winneke P and Hayne JA agreed).

[34] [2006] VSCA 147; (2006) 163 A Crim R 538.

[36] [1996] VICSC 30; (1996) 2 VR 520.

[37] [2006] VSCA 147; (2006) 163 A Crim R 538.

[38] R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 104 (Crockett and Hampel JJ); and DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542-3 (Vincent JA).

[39] Allpass (1993) 72 A Crim R 561, 562 (Gleeson CJ, Hunt CJ at CL and McInerney J); and R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 104 (Crockett and Hampel JJ).

[40] Allpass (1993) 72 A Crim R 561, 562-3 (Gleeson CJ, Hunt CJ at CL and McInerney J); R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA); Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, 341 (Kirby J); and DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542-3.

[41] Explanatory Memorandum, Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 (Vic) 9.

[42] [2009] TASSC 107.

[44] John Robertson & Co. Ltd (In Liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65, 79 (Menzies J), 87 (Gibbs J) and 93 (Mason J).

[45] R v LK; R v RK [2010] HCA 17; (2010) 241 CLR 177, 193 (French CJ).

[46] See for example R v Fincham [2008] VSCA 186, [28] (Buchanan JA); DPP v Page [2006] VSCA 224, [55] (Eames JA).

[47] R v Baldock [2010] WASCA 170; (2010) 269 ALR 674, 693 (Pullin JA and Kenneth Martin J); DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324, 327 (Allsop P with Basten JA, McClennan CJ at CL, Simpson J and Barr JA agreeing) which states:

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 practicable 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.

[48] [2010] WASCA 170; (2010) 269 ALR 674.

[49] [2010] NSWCCA 194; (2010) 273 ALR 324.

[50] [2007] HCA 22; (2007) 230 CLR 89, 151 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

[51] Also see Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); R v Roussety [2008] VSCA 259; (2008) 24 VR 253, 284 (Weinberg JA).

[52] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522.

[53] [2006] VSCA 147; (2006) 163 A Crim R 538, 542; see also DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85.

[55] R v Holder & Johnston (1983) 3 NSWLR 245.

[56] [2010] NSWCCA 49.

[57] [2010] VSCA 350 [83] (Ashley, Redlich and Weinberg JJA).

[58] [2010] NSWCCA 55; (2010) 267 ALR 57.

[59] Ibid [275]-[281] (Simpson J) and [315] (Barr AJ).

[60] [2010] VSCA 350 [83] (Ashley, Redlich and Weinberg JJA) (citations omitted).

[61] DPP v Leach (2003) A Crim R 64, 74-6 (Eames JA); Lewis and Rawnsley, (Unreported, 26 September 1972, Queensland Court of Criminal Appeal) and other cases cited in F Rinaldi, 'Dismissal of Crown Appeals Despite Inadequacy of Sentence' (1983) 7 Criminal Law Journal 306.

[62] [1973] Qd R 355.

[64] Transcript of Proceedings, Director of Public Prosecutions v Kieu Thi Bui (Unreported, County Court of Victoria, Judge Wilmoth, 27 April 2010) ('TP') page 41.

[67] Malvaso v R [1989] HCA 58; (1989) 168 CLR 227, 239 (Deanne and McHugh JJ); R v Su, Katsuno, Asami and Honda [1997] 1 VR 1, 77 (Winneke P, Hayne JA and Southwell AJA).