Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

HIS HONOUR: This is an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). It was filed in this court by Mr Kangmin Bae (the applicant) on 6 September 2019, and concerns an application under s 78 of the CAR Act for an inquiry into a sentence imposed upon him for Commonwealth drug importation offences by Hock DCJ in 2013, and from which the Court of Criminal Appeal dismissed an appeal in 2015.

In brief, it is said that following clarification of the law in the decision of Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1 (Xiao), a court is entitled to take into account the “utilitarian value” of a guilty plea when sentencing for Commonwealth offences. Further, following Jinde Huang v R [2018] NSWCCA 70; (2018) 272 A Crim R 266 (Huang), the failure to take into account the utilitarian value of the plea will amount to a legal error. The applicant asserts that both the sentencing judge and the Court of Criminal Appeal made an error of law in the sentencing process by failing to take into account the “utilitarian value” of his guilty plea leading to a more severe sentence.

On this basis, the applicant seeks that the whole of the case be referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under s 5 of the Criminal Appeal Act 1912 (NSW). The authority to do so arises pursuant to s 79(1)(b) of the CAR Act, under which that course may be taken “if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”: s 79(2).

On 12 January 2012 the applicant entered pleas of guilty to five offences contrary to sections 307.1(1) (counts 1, 2, 4, and 5) and 307.2(1) (count 3) of the Criminal Code (Cth).

On 4 April 2013, Hock DCJ imposed sentences which were partially accumulated, with the overall sentence being imprisonment for 20 years with a non-parole period of 12 years. The overall sentence dates from 19 April 2010. The non-parole period will expire on 18 April 2022.

The following summarises the sentences imposed for each offence:

In her remarks on sentence, Hock DCJ outlined the agreed facts upon which the applicant was sentenced, finding that the applicant had aided and abetted the importation of border controlled drugs in commercial quantities (counts 1, 2, 4 and 5) and in a marketable quantity (count 3), from Canada to Australia, with the total narcotics seized amounting to 19.569kg (bulk weight). [1]

Hock DCJ analysed the applicant’s role in the offending, and said though “he was not the overall principal of this operation, he was the person trusted to coordinate the arrival and receipt of these drugs in Sydney”, and referred to his use of “innocent agents” to provide their addresses for the delivery of boxes in which drugs were concealed. [2]

Her Honour referred to the fact that the importation was “well-organised” and resulted in successful importations into Australia. Reference was then made to the need for deterrence for offences such as these. [3]

The sentencing judge considered matters personal to the offender. It was noted that the applicant: [4]

Her Honour gave little weight to the isolation experienced by the applicant while imprisoned, in view of the fact that the applicant came to Australia to import drugs without regard to the harm caused to the community. [5]

During the sentencing hearing held on 15 February 2013, Hock DCJ discussed the prospect of giving the applicant an appropriate discount for his guilty plea with both counsel for the Crown and applicant. [6] It was conceded by counsel for the Crown that a 15% discount was appropriate. [7] Although the starting points for the sentences were not specified, her Honour did say in her remarks: [8]

The applicant applied to the Court of Criminal Appeal for leave to appeal against the sentence on three grounds. The Court granted leave but rejected each ground and dismissed the appeal: Bae, Kangmin v R [2015] NSWCCA 133. The grounds of appeal asserted that the sentencing judge had erred first by taking into account the applicant’s use of “innocent agents”, second, in the degree to which the individual sentences were accumulated, and finally, because the individual sentences, the overall head sentence, and the non-parole period were manifestly excessive.

As counsel for the applicant points out in his comprehensive written submissions, [9] none of the grounds of appeal related to the present issue; that is, the basis upon which the sentencing judge assessed a discount to the sentence to account for the applicant’s guilty plea.

As mentioned above, the decision in Xiao clarified the principles applicable to assessing a sentence discount for Commonwealth offenders who have pleaded guilty. Section 16A(2)(g) of the Crimes Act 1914 (Cth) is in the following terms:

The view prior to Xiao was that Commonwealth offenders who pleaded guilty could get a discount in recognition of the offender’s willingness to facilitate the course of justice, but not on the basis of the utilitarian value of a guilty plea. The authority for this proposition was said to be Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 and Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458. Concerns about the correctness of the limited interpretation of s 16A(2)(g) were expressed by the NSW Court of Criminal Appeal in DPP (Cth) v Gow [2015] NSWCCA 208; (2015) 298 FLR 397 (per Basten J at [27], Hamill J agreeing) and in the Victorian Court of Appeal in DPP (Cth) v Thomas; DPP (Cth) v Wu (2016) 53 VR 546; [2016] VSCA 237 at [136].

The appeal in Xiao was heard by a bench of five. Following a review of the authorities, it was held by Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J and Bellew J that:

As also mentioned above, in Huang, the same five judge bench later clarified that the utilitarian value of a guilty plea must be taken into account and to fail to do so is a legal error.

The decisions in Xiao and Huang were handed down in mid-2018. The present Part 7 application was filed on 6 September 2019, and a copy was provided to the Commonwealth Director of Public Prosecutions.

On 10 September 2019, the Registrar of the Court of Criminal Appeal notified the Commonwealth Director of Public Prosecutions and the Attorney General for NSW that submissions in response were to be filed within 28 days. On 1 October 2019, the Commonwealth Director of Public Prosecutions indicated that no submissions would be made in respect of the application. In correspondence with the Registrar on 2 October 2019, the solicitor for the applicant indicated that solicitors for the Attorney General for NSW similarly clarified that no submissions would be made on behalf of the Attorney General. It can therefore be inferred that neither party intends to contest the application.

The task of determining an application pursuant to s 78 of the CAR Act turns on whether the applicant can satisfy the s 79(2) gateway test of whether there “appears” to be a doubt or question (in contrast to whether there is actually a doubt or question) as to any mitigating circumstances, which extends to an error of law in the sentencing process: Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562. A determination of this type involves the exercise of administrative power, limited to the direction of an inquiry or referral to the CCA under s 79(1)(a) or (b).

In submissions filed in support of the application, counsel for the applicant expressly relies on Xiao and Huang as the basis for which it is said there appears to be a doubt or question as to the use of mitigating circumstances in the way the applicant was sentenced.

Counsel for the applicant submits that although the way in which the sentencing judge applied the discount to the sentence was unsatisfactory, in that it appears that her Honour had double-discounted (“I have reduced each individual sentence and the overall sentence by 15%” [10] ), this did not in fact occur because of the absence of any express starting point for what the sentence would have been.

Attention was also drawn to the submissions at the sentence hearing, in which counsel for the applicant informed the court that a discount was sought on the basis of the applicant’s willingness to facilitate the course of justice, and conceded that it was not sought on the basis of any utilitarian value.

Further, counsel for the applicant contends that in view of the fact that the sentencing judge expressly explained that the discount was referable to the offender’s acceptance of responsibility and willingness to facilitate the course of justice, a Xiao error is patent because of “the failure … to refer to and therefore take into account the utilitarian value of the plea”. [11]

It was further submitted that the same issues arise in relation to the subsequent decision of the Court of Criminal Appeal, wherein the basis for the discount applied to the sentence did not arise as an issue to be determined.

In her remarks, the sentencing judge explained that the 15% discount was appropriate in circumstances where the pleas indicated the offender’s “acceptance of responsibility and a willingness to facilitate the course of justice”. [12] It appears that the words used by the sentencing judge were couched in the now-erroneous language of the Cameron and Tyler approaches to sentencing Commonwealth offenders who had pleaded guilty. It also appears from the remarks that consideration of the utilitarian value of the plea – of which the failure to do so is a legal error – was entirely absent from the sentencing process.

It is also evident from the transcript of the sentencing hearing, her Honour was conscious of the issues relating to the basis upon which a discount can be made in sentencing for Commonwealth offenders. In discussions with counsel for the applicant, the following exchange took place, with counsel alluding to evidence of a rather complicated process whereby the applicant's pleas came to be entered: [13]

In this exchange, counsel for the applicant’s express reference to Cameron, and her Honour’s advertence to the view that the utilitarian value of the plea cannot be taken into account, both provide insight into an erroneous approach taken in the assessment of what benefit should be afforded to the applicant for his pleas of guilty.

No criticism of counsel or the judge is intended by any of this. They were faithfully following what this Court had declared the law to be, prior to the decisions some years later in Xiao and Huang.

It may be thought, at first blush, that what the applicant is raising in this application is only a matter of terminology. The applicant received the benefit of a 15% discount for his "willingness to facilitate the course of justice" and it might be contended that he should receive the same, but for the "utilitarian value" of his pleas of guilty instead. However, as counsel for the applicant correctly points out, the two concepts are not the same and there is scope for an offender to be afforded mitigation of penalty on both accounts. An opportunity for the applicant to make such a case was denied to him in 2013 because of the way the law was understood at that time.

There appears to have been a "Xiao error" in the sentencing of the applicant in 2013, which was not remedied on appeal to the Court of Criminal Appeal in 2015. Accordingly, it appears that there is a doubt or question as to the sentence passed upon the applicant.

The whole of the case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).