Bae, Kangmin v R

Original conviction and sentence

1. 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).
2. 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.
3. The following summarises the sentences imposed for each offence: Count Offence Sentence Count 1 Aid and abet the importation of a commercial quantity of cocaine (3.713kg (pure)) 10 years commencing 19 April 2012 (expiry 18 April 2022) Count 2 Aid and abet the importation of a commercial quantity of methylamphetamine (2.266kg (pure)) 10 years commencing 19 April 2015 (expiry 18 April 2025) Count 3 Aid and abet the importation of a marketable quantity of heroin (2.243kg (pure)) 5 years commencing 19 April 2010 (expiry 18 April 2015) Count 4 Aid and abet the importation of a commercial quantity of methylamphetamine (2.243kg (pure)) 10 years commencing 19 April 2018 (expiry 18 April 2028) Count 5 Aid and abet the importation of a commercial quantity of cocaine (4.021kg (pure)) 10 years commencing 19 April 2020 (expiry 18 April 2030)

Sentencing remarks (Hock DCJ)

1. 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]
2. 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]
3. 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]
4. The sentencing judge considered matters personal to the offender. It was noted that the applicant: [4] ● had no prior criminal convictions; ● did not give evidence. ● is a Korean national, educated at a tertiary level in Canada, and was married but is now separated; ● had abused of alcohol and drugs, had a gambling habit, and had been diagnosed with depression and anxiety; and ● had expressed remorse and shame to the psychologist.
5. 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]
6. 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] "There was considerable delay before the pleas were entered. Some explanation for that delay is set out in the affidavit of the offender's present solicitor, exhibit 2, who was not representing him initially. In the circumstances, I have reduced each individual sentence and the effective overall sentence by 15%. It was conceded by the Crown Prosecutor that this was an appropriate reduction. The pleas indicate an acceptance of responsibility and a willingness to facilitate the course of justice."

Appeal to Court of Criminal Appeal

1. 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.
2. 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.

Xiao v R [2018] NSWCCA 4; (2018) 96 NSWLR 1 and subsequent decisions

1. 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: Division 2 - General sentencing principles 16A Matters to which court to have regard when passing sentence etc. - federal offences (1) In 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. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: … (g) if the person has pleaded guilty to the charge in respect of the offence - that fact; …
2. 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].
3. 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: "[277] In providing for the fact of a plea to be taken into account, in our opinion, the legislature intended the encouragement of guilty pleas not only to provide evidence for remorse or contrition but to assist in the administration of justice. The principle of legality should not affect the attainment of that object. [278] In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed."
4. 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.

Part 7 application

1. 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.
2. 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.

Law applicable to Part 7 application

1. 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).

Applicant's submissions - summarised

1. 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.
2. 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.
3. 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.
4. 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]
5. 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.

Consideration and conclusion

1. 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.
2. 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] TURNBULL: Your Honour the question of the plea of guilty. … It is a Federal offence and Cameron is the relevant authority. But, your Honour, at first blush it doesn't look good. He has waited to the last minute and has sought a trial adjournment and then he has waited until the last minute, although the trial adjournment was only for a matter of three months all-up and then he has entered his pleas. But the willingness to facilitate the course of justice has to be looked at through the understanding the individual has of the system that he is dealing with or she is dealing with, the benefits which are afforded, the capacity to understand the advice, the capacity to get the advice. It might well be your Honour's view that he did ultimately express that willingness to facilitate the course of justice when he had explained to him not only the concept of aid and abet and the offences, but also the matters in the brief. … At the end of the day there wasn't a trial. So there is a utilitarian benefit, if I can use that rather harsh term. Your Honour might also think that he didn't chance his arm irrespective, that he came to a point where he did understand the situation. Now of course always there is the consideration of look, it's an overwhelming case, really what kind of benefit can flow beyond just a mere acknowledgment of utilitarianism-- HER HONOUR: Well, the Commonwealth offence it isn't for the utilitarian value so - and I might just interrupt you here and ask the Crown, it might shorten matters. I am assuming, possibly wrongly, Mr Crown that you concede that the offender should get some discount for his willingness to facilitate the course of justice-- ROSER: Yes, yes. HER HONOUR: What would you say? ROSER: Minimal. [Emphasis added]
3. 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.
4. 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.
5. 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.

Conclusion

1. 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.
2. 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).

Endnotes

1. Remarks on sentence, 4 April 2013, pp 1-14.
2. Remarks on sentence, 4 April 2013, p 14.
3. Remarks on sentence, 4 April 2013, p 14.
4. Remarks on sentence, 4 April 2013, pp 14-15.
5. Remarks on sentence, 4 April 2013, p 16.
6. Proceedings on sentence, 15 February 2013, pp 13-14.
7. Ibid, p 14.
8. Remarks on sentence, 4 April 2013, p 16.
9. Applicant's written submissions, 5 September 2019, p 5.
10. Remarks on sentence, 4 April 2013, p 16.
11. AWS, p 14.
12. Remarks on sentence, 4 April 2013, p 16.
13. Proceedings on sentence, 15 February 2013, pp 11-12. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2019