Bae v R

1. [1]

   BELL P: I have had the benefit of reading in draft the reasons of Johnson J. I agree with those reasons and with his Honour’s proposed orders.

2. [2]

   WALTON J: I agree with Johnson J.

3. [3]

   JOHNSON J: Following a referral to this Court under s.79(1)(b) Crimes (Appeal and Review) Act 2001, the Appellant, Kangmin Bae, appeals with respect to sentences imposed in the Sydney District Court on 4 April 2013 for a number of serious drug importation offences under the Criminal Code (Cth) (“the Code”).

The Sentences Under Appeal

1. [4]

   On 12 January 2012, the Appellant entered pleas of guilty to four offences contrary to s.307.1(1) and s.11.2(1) of the Code and an offence contrary to s.307.2(1) and s.11.2(1) of the Code.

2. [5]

   On 4 April 2013, her Honour Judge Hock imposed sentences which were partially accumulated, with the overall effective sentence comprising imprisonment for 20 years with a non-parole period of 12 years. The overall sentence dated from 19 April 2010 with the non-parole period expiring on 18 April 2022.

3. [6]

   The following table summarises the sentences imposed for each offence:

4. [7]

   The Appellant appealed to this Court against sentence with the Court granting leave to appeal against sentence, but dismissing the appeal on 3 June 2015: Bae v R [2015] NSWCCA 133.

Referral to Court of Criminal Appeal

1. [8]

   On 17 October 2019, R A Hulme J referred the matter to this Court upon the basis that there appeared to be a doubt or question as to the sentences passed upon the Appellant with respect to the sentencing Judge’s approach to the Appellant’s pleas of guilty in light of the decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4: Application of Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review Act 2001 (NSW) [2019] NSWSC 1413.

2. [9]

   As the appeal comes before this Court by way of reference under Part 7 of the Crimes (Appeal and Review) Act 2001, the Appellant is not required to seek an extension of time or leave to appeal against sentence: Carlton v R [2014] NSWCCA 14 at [9]-[39].

3. [10]

   The outcome of the earlier sentence appeal, dismissed by the Court on 3 June 2015, does not bear upon the present appeal. This Court should note that the 2015 Court rejected grounds of appeal which asserted error in the extent of accumulation of sentences and that the overall sentences were manifestly excessive. Those arguments are not repeated here. The present appeal is confined to the issue which gave rise to the referral.

The Ground of Appeal

1. [11]

   By Notice of Appeal filed on 23 October 2019, the Appellant relies upon the following ground of appeal:

2. [12]

   The Crown concedes that error occurred in the sentencing of the Appellant in accordance with the ground of appeal. This concession is correct and I proceed upon the basis that error has been established. Accordingly, it will be necessary for the Court to exercise its independent sentencing discretion for the purpose of determining whether lesser sentences are warranted in accordance with s.6(3) Criminal Appeal Act 1912: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

3. [13]

   In undertaking that task, the Court should take into account all relevant matters, including evidence of the Appellant’s progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

Facts of Offences

1. [14]

   The Crown case on sentence was set out in an Agreed Statement of Facts.

2. [15]

   The Appellant and his then co-accused, Sunho Han (“Han”) and Deuk Kyu Yoon (“Yoon”), were indicted on a total of eight counts under the Code arising out of the importation of various quantities of border controlled drugs into Australia. The Appellant was charged with five counts (as set out at [6] above), Han with one count and Yoon with two counts.

3. [16]

   The Appellant, a South Korean passport holder, entered Australia from Canada on 11 December 2009 in furtherance of a scheme to import border controlled drugs from Canada in boxes shipped by DHL. His role in the enterprise was to co-ordinate the receipt and collection of the boxes and their safe storage and the subsequent transfer of the drugs for distribution and sale.

4. [17]

   Between 23 October 2009 and 8 April 2010, 64 boxes were consigned by DHL in Toronto, Canada in 24 different consignments to 10 different addresses in Sydney to which the Appellant had direct or indirect links. The contents of most of the boxes were described in shipping documents as motor vehicle wheel rims. Some were said to contain clothing, books and personal effects. Many of the consignment documents nominated “Min” or “Jake” (names by which the Appellant was known) as the receiver's contact.

5. [18]

   The Appellant lived at an address in Strathfield for a period of time beginning shortly after his arrival in Australia. Four consignments totalling 10 boxes were sent to this address. The Appellant moved to 66/230 Elizabeth Street, Surry Hills in February 2010. Two boxes in one consignment were sent to this address. The Appellant rented a storage unit in Burwood for the safe storage of the consignments and drugs concealed within them.

6. [19]

   The Appellant procured Han and Yoon to receive consignments at their respective addresses in Bunn Street, Pyrmont and Murray Street, Pyrmont. He also procured a person named Tjin Ow (“Ow”) to receive consignments at his address in Killara. Four consignments comprising 11 boxes were shipped to Han's address. Three consignments comprising 11 boxes were shipped to Ow's address. Six boxes were shipped to Yoon's address. Han and Ow helped transfer some boxes into the Appellant's possession and Ow telephoned DHL about the consignment addressed to Yoon's address at the request of the Appellant.

7. [20]

   Boxes were also consigned to other addresses. These included the office premises of the Korean Student Agency at 3/363 Pitt Street, Sydney. Seven boxes in three consignments were delivered to this address. Han and Ow helped the Appellant shift these boxes to the Appellant's premises in Surry Hills.

8. [21]

   In summary, 64 boxes were despatched from Canada and imported into Australia during the period 23 October 2009 to 8 April 2010. In total, 45 boxes were recovered at various locations. Eighteen boxes contained border controlled drugs concealed between the cardboard surfaces of the two inner flaps comprising the base of the box. The two inner cardboard flaps in the base of the 27 remaining recovered boxes had been cut off and removed. A number of intact flaps that had been cut off were found to contain narcotic substances concealed between the surfaces of the cardboard. Several loose bags containing drugs were also found at the Appellant’s Elizabeth Street, Surry Hills apartment.

9. [22]

   A total of 21 of the 45 recovered boxes were found by Australian Federal Police (“AFP”) agents during a search of the Appellant's premises at Surry Hills on 19 April 2010.

10. [23]

    The drug seizures underpinning the five counts against the Appellant in the indictment were as follows:

11. [24]

    On sentence, the Crown relied upon the evidence of the finding of the 27 boxes from which the flaps had been removed and the sending of the additional 19 unrecovered boxes (in which it could be inferred drugs were imported) to show that the conduct forming the subject of the charges in the indictment was not isolated, but was part of a well-organised scheme for the importation of illegal drugs into Australia.

12. [25]

    On the morning of 19 April 2010, the Appellant and his wife left their apartment in Sydney and travelled to the Sydney International Airport. The Appellant purchased two one-way tickets for a flight to Seoul departing that day. After boarding, the Appellant was escorted from the aircraft and placed under arrest by AFP agents. His wife was allowed to continue on the flight to Seoul.

13. [26]

    The Appellant remained in custody thereafter and his sentence commenced on 19 April 2010, the date of his arrest.

Approach to the Appellant’s Pleas of Guilty on Sentence at the Original Sentencing Hearing

1. [27]

   It is appropriate to consider the evidence before the sentencing Judge concerning the Appellant’s pleas of guilty and the submissions made at the sentencing hearing in 2013 together with her Honour’s conclusions on that issue.

2. [28]

   The Appellant was arrested on 19 April 2010 and was committed for trial to the District Court on 4 May 2011.

3. [29]

   A trial date was fixed in the District Court commencing on 24 October 2011. In September 2011, the Appellant had a change in legal representation with Martin Ricci, solicitor, commencing to represent the Appellant.

4. [30]

   On the application of the Appellant, the 24 October 2011 trial was vacated and relisted to commence on 23 January 2012. An affidavit of Mr Ricci sworn 15 February 2013 was tendered for the Appellant at the District Court sentencing hearing. Mr Ricci stated that he had been asked to provide advice to the Appellant on 10 September 2011 and that he thereafter conferred with the Appellant. Mr Ricci formed the view that there was a strong Crown case and advised the Appellant accordingly so that plea negotiations commenced on 11 October 2011. On 21 October 2011, the Crown rejected a plea offer made on behalf of the Appellant. On that day, a defence application was made to vacate the trial scheduled to commence on 24 October 2011, a course which was acceded to by the Court. On 12 January 2012, the Appellant entered pleas of guilty to the counts on the indictment and an Agreed Statement of Facts was tendered to the Court.

5. [31]

   The proceedings were further adjourned and, in due course, the sentencing hearing commenced before her Honour Judge Hock on 26 October 2012. On the Appellant’s application, the proceedings were adjourned part-heard to 15 February 2013.

6. [32]

   In the course of the resumed sentencing hearing on 15 February 2013, the following exchange took place between Senior Counsel then appearing for the Appellant and the sentencing Judge concerning the Appellant’s pleas of guilty (T11-13, 15 February 2013) (emphasis added):

7. [33]

   This extract from the transcript assists an understanding as to how the sentencing Judge came to calculate the discount allowed to the Appellant. No additional evidence was relied upon in this Court concerning this issue. The affidavit of Mr Ricci once again provided the foundation for submissions made in this Court.

8. [34]

   In the course of sentencing remarks delivered on 4 April 2013, her Honour explained why the Appellant was to receive a 15% discount on sentence (ROS16):

9. [35]

   In referring the matter to this Court, R A Hulme J noted the statement by the sentencing Judge during submissions on 15 February 2013 and her Honour’s approach to the Appellant’s pleas of guilty in the sentencing remarks. It is clear that her Honour, consistent with the law prior to Xiao v R, excluded the utilitarian value of the Appellant’s pleas of guilty from consideration in calculating the discount. That said, factors relevant to an assessment of utilitarian value of guilty pleas were taken into account in the decision to allow a 15% discount, albeit with a different label. As will be seen, there are overlapping issues at work in this area.

10. [36]

    As noted earlier, the Crown concedes appropriately that there was a Xiao v R error in that the sentencing Judge did not take into account the utilitarian value of the Appellant’s pleas of guilty on sentence so that a relevant factor was excluded from consideration.

Objective Seriousness of the Offences

1. [37]

   The sentencing Judge made findings concerning the objective seriousness of the offences. Those findings are not challenged in this Court and remain the appropriate findings to make concerning the offences themselves and issues of specific and general deterrence. Her Honour said (ROS13-14):

Further Evidence Concerning the Appellant’s Prospects of Rehabilitation and Risk of Reoffending

1. [38]

   For the purpose of resentencing, the Appellant relies upon the affidavit of his solicitor, Suzanne Tezjan Knowles, affirmed 7 November 2019 and the Appellant’s affidavit affirmed 5 November 2019.

2. [39]

   Ms Knowles’ affidavit attached documents which demonstrate that the Appellant has completed a number of vocational and rehabilitation programs in custody between 2010 and 2018. A report of the Serious Offenders Review Council dated 15 May 2019 verified the Appellant’s significant progress in custody, leading to a reduced security classification and a placement at the Outer Metropolitan Multi-Purpose Correctional Centre (“OMMPCC”) at Windsor. The Appellant has two minor disciplinary matters on his correctional record in 2013 and 2018.

3. [40]

   A report of Mr Tim Watson-Munro, psychologist, dated 14 February 2013 was tendered in the defence case on sentence. The Appellant did not give evidence at the sentencing hearing in 2013. However, the sentencing Judge accepted that the Appellant was a heavy gambler who abused alcohol as well.

4. [41]

   The Appellant had no prior criminal convictions in South Korea or Australia at the time of these offences.

5. [42]

   The Appellant is now 39 years old. His affidavit recounts the progress he has made in the decade during which he has been in custody. He has been working as a general hand at the Wildlife Centre attached to the OMMPCC. He works in a trusted position caring for kangaroos and emus housed at the Wildlife Centre.

6. [43]

   The Appellant expresses remorse for his offences and states that he has had an extended opportunity to reflect upon his offending and its adverse effects on others, including those using drugs and the shame he has brought on his family. The Appellant had limited English skills when he came into custody, but has learned English and is now bilingual, a skill which he expects to help him find meaningful work when he has an opportunity to return to South Korea.

7. [44]

   The Appellant married in 2008. His wife was with him in Australia, but she returned to South Korea at the time of his arrest in April 2010. She has since divorced the Appellant. There were no children of the marriage.

8. [45]

   The Appellant is in good health and expects that he will be deported to South Korea when the time comes for his release. He states that his family is supportive and he will return to South Korea to live with them after his deportation.

9. [46]

   The sentencing Judge did not make a finding as to the Appellant’s prospects of rehabilitation and risk of reoffending when he was sentenced on 4 April 2013. The lengthy period in custody before the Appellant could be eligible for release meant that any assessment of his prospects of rehabilitation would have required a predictive assessment as to his position many years later.

10. [47]

    The Crown acknowledges that the evidence on this appeal is such that the Court is able to make a finding that the Appellant has good prospects of rehabilitation and a low risk of reoffending. A finding to that effect should be made.

Assessing the Utilitarian Value of the Appellant’s Pleas of Guilty

1. [48]

   The Appellant was sentenced long before the 2018 decision of this Court in Xiao v R. The Court accepted in that decision that the utilitarian value of a plea of guilty can be taken into account on sentence for Commonwealth offences under s.16A(2)(g) Crimes Act 1914 (Cth). Prior to that decision, it had been the prevailing view in New South Wales that the utilitarian value of a plea could not of itself be taken into account in mitigation of sentence in respect of Commonwealth offences.

2. [49]

   In Baden v R [2020] NSWCCA 23, Bell P (Walton J and myself agreeing) said at [15]-[16]:

3. [50]

   In Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57, Beazley P (Bathurst CJ, Hoeben CJ at CL, McCallum and Bellew JJ agreeing) adopted the reasoning applicable to State offences in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, whilst noting the need to guard against the application of a “norm” to Commonwealth offences. Beazley P said at [81]-[86]:

4. [51]

   In Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70, this Court (in judgments of the same five-Judge Bench as in Xiao v R (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ)) stated (per Bellew J at [69]) that the timing of the plea, to a large extent, determines the level of the utilitarian discount to be applied, citing R v Thomson; R v Houlton at [160].

5. [52]

   In considering the nature of a discount for the utilitarian value of pleas of guilty, it is helpful to have regard to the decision of this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 where Howie J (McClellan CJ at CL and Simpson J agreeing) explained the concept of utilitarian value of a guilty plea concerning State offences. Howie J said at [32]-[33]:

6. [53]

   The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth).

7. [54]

   Counsel for the Appellant and the Crown both accepted at the hearing in this Court that the principles in R v Borkowski provided assistance in assessing the utilitarian value of a guilty plea for a Commonwealth offence (T2-3, 5, 11, 6 February 2020).

8. [55]

   It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender’s favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations.

9. [56]

   As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]:

10. [57]

    The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.

11. [58]

    Mr Anderson, counsel for the Appellant, submitted that an assessment of the utilitarian value of the Appellant’s pleas of guilty may take into account the reasons for delay in the entry of pleas, said to be referrable to the Appellant’s unclear understanding of the brief of evidence and the strength of the prosecution case flowing from his earlier legal representation before Mr Ricci came to represent him. I do not accept this submission. Those aspects may bear upon the subjective issue of facilitation of the course of justice in explaining why the Appellant did not plead guilty earlier. However, they do not affect the utilitarian value, which in this case is reduced irrespective of the reason for the delay: R v Borkowski at [32](8) (at [52] above).

12. [59]

    The discount for the utilitarian value of the Appellant’s pleas should have regard principally to the timing of the pleas of guilty which occurred after the first trial date had been vacated and shortly before the second trial date. The Court was informed that the trial had a six-week estimate as a joint trial with a co-accused, but a two-to-three week estimate if the Appellant was tried alone (T14, 6 February 2020). It may be taken that the Crown had been preparing for trial up to October 2011. Although there may have been limited further preparation for trial between October 2011 and the rescheduled trial date of 23 January 2012, it was not until shortly before the rescheduled trial date that the pleas of guilty were entered.

13. [60]

    In these circumstances, I would assess the discount for the utilitarian value of the Appellant’s pleas of guilty at 12.5%. The subjective circumstances surrounding the Appellant’s unfamiliarity with the brief of evidence before Mr Ricci came to represent him, and the Appellant’s relatively prompt willingness to plead guilty thereafter, may be reflected in a further allowance for his willingness to facilitate the course of justice. This aspect lies as a subjective factor to be taken into account on sentence which ought not be quantified.

Resentencing the Appellant

1. [61]

   I approach the sentencing of the Appellant upon the basis that the discount for the utilitarian value of his pleas of guilty, in accordance with Xiao v R, will be 12.5%.

2. [62]

   The findings of her Honour Judge Hock with respect to the objective gravity of the offences remain appropriate and I adopt those findings for the purposes of resentencing.

3. [63]

   The Appellant’s subjective case is a stronger one at this point than it was in 2013. He has made constructive use of his extended time in custody to undertake vocational courses and rehabilitative measures as well as demonstrating a greater level of maturity and insight, including contrition, with respect to his offending. All of these factors are to be taken into account in his favour on resentence, together with the factors referred to in [60] above. The Appellant has good prospects of rehabilitation and there is a low risk of him reoffending.

4. [64]

   Having undertaken the process required by Kentwell v The Queen, I am satisfied for the purpose of s.6(3) Criminal Appeal Act 1912 that lesser sentences should be passed in this case including a lesser overall effective sentence, having regard to all relevant objective and subjective factors and after applying the 12.5% discount for the utilitarian value of the Appellant’s pleas of guilty (with some rounding). Partial accumulation of the sentences is appropriate and regard has been had to the totality principle.

5. [65]

   The sentences to be passed will be as follows:

6. [66]

   As against an overall effective head sentence of imprisonment for 18 years and six months commencing on 19 April 2010 and expiring on 18 October 2028, a single non-parole period of 11 years should be fixed commencing on 19 April 2010 and expiring on 18 April 2021.

7. [67]

   As the Appellant is expected to be deported when he is released on parole, no purpose will be served by explaining the effect of release on parole for the purpose of s.16F Crimes Act 1914 (Cth).

Orders

1. [68]

   I propose the following orders: