Today the High Court handed down its decision in the appeal in Bui v Director of Public Prosecutions (Cth)  HCA 1
In that case the appellant agreed to carry drugs into Australia from Vietnam at the suggestion of a person named Ho, from whom she had borrowed money. She was apprehended at Melbourne airport on 11 February 2009 and taken to a hospital where a CT scan identified four foreign objects concealed within her body. They turned out to be pellets containing 197.3g of pure heroin. After the discovery of the drugs the appellant co-operated with the police, giving a detailed account of her involvement, making a statement naming the person who provided her with two of the pellets, and providing 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 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 section 307.2(1) of the Criminal Code (Cth).
On 30 April 2010, the sentencing judge in the County Court of Victoria decided not to impose an immediate term of imprisonment upon the appellant, for reasons that included: the assistance the appellant had given to the authorities and her undertaking to assist the authorities in the future; the danger that attended that course of action; and the risk that hardship would be caused to the appellant's infant twins, who were born prematurely in December 2009. 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 DPP appealed against the sentence imposed on the ground that it was manifestly inadequate. The Court of Appeal of the Supreme Court of Victoria identified a number of errors in the sentencing judge's approach, and re-sentenced the appellant to four years' imprisonment and fixed a non-parole period of two years.
The Court of Appeal had regard to sections 289 and 290 of the Victorian Criminal Procedure Act 2009 which provide that in considering whether or not an appeal should be allowed to that Court, and if so in re-determining sentence, the Court of Appeal “must not take into account any element of double jeopardy involved in the respondent being sentenced again.” It was accepted that those provisions could not apply of their own force to the imposition of a sentence for a federal offence. However, they were said by the Court of Appeal to apply as provisions picked-up by virtue of section 80 of the Judiciary Act 1903 which 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 appellant contended that the Court of Appeal was in error in having regard to sections 289 and 290, which in effect prohibited it from having regard to the “principle” of “double jeopardy”. That principle was said to have 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 submitted that double jeopardy was a principle of judge-made law which informed the content that is to be given to several elements of the statutory provisions governing the sentencing of federal offenders set out in section 16A. These included the requirement that the sentence be of "a severity appropriate in all the circumstances of the offence”, that the Court take into account “any other matters” and that the "mental condition" of the appellant, which was also required to be taken into account, was broad enough to refer to the anxiety and distress to which it may be presumed that person will suffer on re-sentencing.
The High Court held that while section 16A accommodated some common law principles of sentencing, such as those relating to general deterrence, proportionality and totality, it did not accommodate the so-called “principle” relied upon by the appellant. The application of an automatic discount on account of double jeopardy would be inconsistent with the requirement of section 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. Moreover, the requirements of section 16A are to be applied by all courts exercising federal jurisdiction upon sentencing, whether by a sentencing court at first instance or by a court on appeal. Section 16A could not be interpreted as encompassing concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy.
Section 16A(2)(m), which required consideration of the “mental condition” of the appellant did not assist the appellant. Contrary to what was held in Director of Public Prosecutions (Cth) v De La Rosa by the NSW Court of Appeal, that section required actual proof of anxiety and distress, and the presumed anxiety and distress accommodated by the notion of double jeopardy was not sufficient (and in any event, in the appellant’s case there was actual evidence of anxiety and distress that was independently taken into account in re-sentencing).
Finally, the fact that presumed anxiety and distress on re-sentencing is not one of the matters to which the Court is to have regard under section 16A does not mean that there is a gap or omission in the Commonwealth sentencing regime such as to bring section 80 into play. Re-sentencing is able to occur according to the terms of section 16A without reference to that presumed state of affairs.
Accordingly, the appeal was dismissed.