Bui v. Director of Public Prosecutions for the Commonwealth

Lower Court Judgment

9/03/2011 Supreme Court of Victoria (Court of Appeal) (Nettle, Hansen JJA and Ross AJA)

[2011] VSCA 61

Catchwords

Criminal law — Sentencing — Application of State legislation in Crown appeal against sentence instituted by respondent — Applicant pleaded guilty to importation of marketable quantity of heroin contrary to s 307.2(1) of Criminal Code (Cth) — Applicant sentenced to three years imprisonment to be released forthwith upon provision of security and good behaviour undertaking — In mitigation, applicant relied on exceptional hardship to infant daughters and undertaking to cooperate with future investigations — Respondent appealed on basis that sentence manifestly inadequate and that sentencing judge erred in finding exceptional circumstances or in weight afforded to exceptional circumstances — At time of appeal, Criminal Procedure Act 2009 (Vic) ("Act") in operation — Sections 289 and 290 of Act provide that double jeopardy in relation to Crown appeals against sentence not to be taken into account — Whether ss 289(2) and 290(3) of Act picked up and applied pursuant to Judiciary Act 1903 (Cth) in Crown appeal against sentence instituted by respondent.

Words and phrases — "double jeopardy".

Short Particulars