Kim v R

1. The total effective sentence was 6 years and 6 months imprisonment. The applicant was eligible for release on parole after serving a total of 4 years and 10 months.
2. In respect of the sentence being imposed for the two offences, pursuant to s 16BA of the Crimes Act 1914, the applicant asked the Court to take into account a further offence contrary to s 18(1) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) of making a false or misleading statement in relation to a foreign travel document. The maximum penalty for such an offence is 10 years imprisonment or 1,000 penalty units, or both.
3. At the time of the applicant's sentencing in the District Court, his co-offenders, Hanyeol Yang and Jung Jin Kim ("Jung"), were also sentenced.

Notice of Appeal

1. On 21 December 2017, the applicant filed a Notice of Appeal in which he nominated a single ground, namely: "There is a disparity between the sentence imposed upon the applicant and the sentence imposed upon the co-offender, Hanyeol Yang, such as to leave the applicant with a justifiable sense of grievance."
2. In order to understand the submissions with respect to this ground, it is convenient to commence by examining the Agreed Facts which were before the sentencing Judge.

Agreed Facts

1. The three offenders were all Korean nationals. The applicant and Mr Yang were resident in Australia on student visas at the time of the offending. The third co-offender, Jung, travelled from Korea to Australia in early August 2015 and again in September 2015 for the purpose of facilitating an importation of tobacco products from Korea to Australia.
2. Police investigations revealed that the applicant was in the business of smuggling and selling tobacco since at least November 2013. In summary, the evidence suggested that the applicant engaged in conduct in furtherance of the importation, as well as the dealing with money which could become an instrument of crime. The particular conduct was as follows: 1. on 1 September 2015, he assisted Mr Yang to take delivery of an air‑cargo consignment which consisted of two cartons described as "mobile phone cases and packing". It appears that the consignment was successfully imported by the applicant and Mr Yang; 2. between mid-August 2015 and 10 September 2015, prior to the arrival of Consignment 2, the applicant engaged in multiple conversations with Mr Yang where they discussed the importation, the arrangements made to source purchasers for the tobacco once it arrived, and the need to be cautious due to the raids conducted on various stores by Customs; 3. on 10 September 2015, the applicant assisted Mr Yang to take delivery of Consignment 2; 4. between November 2013 and September 2015, the applicant engaged in multiple chats via the Kakao App with various tobacco suppliers to purchase tobacco and to organise the importation of consignments to various addresses in Ultimo and Concord; 5. he engaged in Kakao chat conversations where he instructed various suppliers to adopt concealment methods to avoid detection of the tobacco by Customs; and 6. between March 2014 and September 2015, he engaged Doori Money Remittance Service to conduct transfers of between $200 and $81,200 for the purchase of tobacco.
3. Consignment 2 was a further air-cargo consignment. It consisted of 70 cartons labelled as "Mobile phone case and packing box". It was consigned from the same company as Consignment 1 and addressed to the same consignee as that for Consignment 1.
4. When examined by Australian Border Force officers, 50 of the 70 boxes contained cigarettes. Each box contained 50 cartons of branded cigarettes - in total there were 500,000 individual cigarettes, usually referred to as "sticks".
5. The duty rate applicable on imported cigarette tobacco was AU$0.53096 per stick. The total duty evaded for 500,000 sticks in Consignment 2 was AU$264,480 and AU$26,458 in GST.
6. The investigation was permitted to continue in a controlled environment after Australian Border Force officers had examined the cartons.
7. The applicant and Mr Yang were arrested as they were in process of removing boxes from a delivery truck to be placed into a storage unit at a self‑storage facility at Burwood.
8. When the applicant was arrested, and whilst in custody, he was taken to his home address, an apartment in Rhodes, where he was present during the execution of a search warrant. During the course of the execution of the search warrant, numerous cartons of cigarettes were located inside the premises. A number of unopened boxes originating from Korea were found inside a white Audi sedan, which was owned by the applicant. Those boxes contained cartons of various brands of cigarettes.
9. With respect to the money laundering offence - by reference to messages found on the applicant's mobile telephone, and Excel spread-sheets stored on his telephone, it became apparent that 32 transfers totalling $903,548 had been remitted by the applicant through the Doori Money Remittance Service in the 18 month period commencing March 2014.
10. With respect to the offence involving the passport application, after the applicant was released on conditional bail on 10 November 2017, and because his passport had been surrendered to the AFP as part of his bail conditions, he attended at the Korean Consulate in Sydney on 27 April 2016, and completed an application for a replacement Korean passport. In that application he claimed that his passport was lost in circumstances where it had dropped out of his pocket whilst he was eating at a Korean restaurant in the city. Although he had returned to the restaurant to retrieve it, he was not able to and the restaurant owner denied seeing it. This was obviously false.
11. With respect to Mr Yang, the Agreement Statement of Facts recorded that investigations had revealed that Mr Yang, as with the applicant, was in the business of smuggling and selling tobacco since at least August 2013. In summary, it was agreed that the evidence suggested that Mr Yang engaged in conduct in the furtherance of the importation jointly, dealing with proceeds of crime and dealing with money which could become an instrument of crime.
12. The conduct was as follows: 1. between mid-August 2015 and 10 September 2015, prior to the arrival of Consignment 2, Mr Yang engaged in multiple conversations with the applicant where they discussed the importation, the arrangements made to source purchases as well as purchase prices for the tobacco once it arrived, and the need to be cautious due to the raids conducted on various stores conducted by Customs; 2. on 1 September 2015, he took possession of Consignment 1; 3. between 25 August 2015 and 7 September 2015, he liaised with the customs broker and freight forwarder by pretending to be Mr Jaeyong Jung, to organise the delivery of Consignments 1 and 2; 4. on 10 September 2015, he collected the applicant from his residence and drove him to the storage facility to await the arrival of Consignment 2; and 5. between June 2015 and September 2015, he engaged in Kakao chats with another gentlemen, Mr Insung Park, during which he directed him to deposit a total of $315,758 being the proceeds from the sale of the smuggled tobacco, into accounts in a structured way to which Mr Yang had access in Sydney.
13. After his arrest, when police searched a self-storage unit leased by Mr Yang, they seized a total of 343 cartons of branded cigarettes. Each carton contained 10 packets; each packet contained 20 cigarette sticks.

Proceedings on Sentence

1. The sentence proceedings with respect to both the applicant and Mr Yang were held concurrently - as were the sentencing proceedings for their co‑offender Jung. Neither the applicant nor Mr Yang gave evidence.
2. With respect to the applicant, the material tendered included a pre-sentence report. With respect to Mr Yang, a report by Dr Emily Kwok, psychologist, dated 30 March 2017 was tendered.
3. It was apparent from the pre-sentence report that the applicant was born and raised in the Republic of Korea where his parents and sister lived. He arrived in Australia on a student visa in 2008 and has lived in Australia since that time. He has not been employed in Australia, claiming that he has studied throughout that time. He claims that he was supported in Australia by a monthly payment from his parents of $2,000.
4. Apparently, in 2014 he married an Australian citizen whom he had met in 2010. It was unclear to the author of the pre-sentence report whether that marriage was a healthy or viable one.
5. The author of the pre-sentence report noted that when discussing the applicant's attitude to the offending, he gave an account which was significantly different from the Statement of Facts. He claimed that he only had a minor role and that his return was $2,000 to help in the warehouse. He claimed that he had been arrested on his first day of participation in the event.
6. The psychologist's report related the subjective circumstances of Mr Yang. Mr Yang was university educated, obtaining a Bachelor of Business at the age of 26 from a Korean university. He came to Australia in 2008 and had not worked in any paid employment.
7. Neither the applicant nor Mr Yang had been guilty of any previous offences, and neither had anything remarkable about their particular subjective backgrounds.
8. After taking submissions, her Honour adjourned the matter for sentence to 24 April 2017.

Remarks on Sentence

1. Her Honour commenced by summarising the charges and the Agreed Statement of Facts. She turned to consider the objective seriousness of the tobacco importation offence. She described the operation as being not insignificant, involving the importation of 500,000 cigarette sticks and the attempted evasion of approximately $290,000 in duty. She noted that the operation involved the use of false identities for the preliminary registration of false company details to carry out the operation, and for the obtaining of a storage facility to receive the illegal goods. She noted that the first consignment was a trial run for the main second consignment.
2. Her Honour found that the operation was sophisticated and well-planned, that the offenders were aware of the likely revenue to be evaded, or at least that it was likely to be a significant sum of money. She found that each offender entered into the transaction motivated by the significant profits to be obtained.
3. Her Honour then, whilst acknowledging that participants in any joint criminal enterprise were equally responsible for that criminal enterprise, analysed the role that each individual played. She concluded that each member performed different but equally necessary roles. She held that each was clearly a trusted member of the organised criminal group and that each was involved in a not insignificant way in a serious organised criminal activity. Her Honour was persuaded that they were joint principals in the criminal enterprise. She found their moral culpability to be the same.
4. Her Honour concluded that the objective criminality for all offenders was at the upper range of seriousness having regard to the size of the operation, the quantum of the revenue sought to be evaded, the nature of the enterprise and degree of planning involved.
5. With respect to the applicant's money laundering offence, her Honour found that he was a principal in the offending, being the source of and the user of the funds. She found that he was the author or instigator of the money transfer with full knowledge of the illicit destination of the funds and the intention that the money would be used in a crime. Her Honour found that the total amount involved was $1.55M over a 22 month period.
6. With respect to Mr Yang, her Honour made similar findings as to his knowledge and participation. She noted that the offending took place over a shorter period of about three months and that the sums of money were significantly less.
7. Her Honour held, acknowledging that the sums of money were significantly different, that both the applicant and Mr Yang engaged in serious breaches towards the upper end of seriousness for offences of this kind.
8. Her Honour considered the subjective circumstances of each of the offenders. She noted that Mr Yang had pleaded guilty in the Local Court at the first reasonable opportunity after the service of the Brief of Evidence. She held that this demonstrated some remorse and some acceptance of his responsibility for the offending, as well as willingness to facilitate the course of justice. Her Honour held that Mr Yang's prospects of rehabilitation were quite poor.
9. Her Honour noted that the applicant pleaded guilty following a contested paper committal which she nevertheless regarded as being relatively early because the plea was entered in the Local Court. Her Honour came to a similar conclusion as with Mr Yang with respect to a demonstration of remorse and acceptance of responsibility. Her Honour found that the applicant's risk of re‑offending was "… guarded at best".
10. Her Honour considered issues of parity in this way: "With respect to the tobacco importation offences, I take into account matters of parity. Other than the role of the offenders, there are some matters relevant to each of the offenders which distinguish them from each other and which have resulted in the differences in the overall offences, but generally I take the view that there is little to distinguish them. … Similarly, whilst [the applicant] and Yang are charged with similar charges in respect of the proceeds and instruments of crime they are not the same, they relate to different amounts of money and are in different circumstances and as such principles of parity will have less application. However, I have had regard to the principles of parity so that there is not the disparity of the sentence that would give rise to a justifiable sense of grievance by any offender. I have also had regard to the principles of totality, given that there are multiple offences and given that the offending is caught up at least to some extent in the same criminal enterprise."

Sentence Imposed on Mr Yang

1. In respect of Count 1, being the offence of importing tobacco products with intent to defraud, including the offence on the s 16BA Form, her Honour imposed a term of imprisonment of 2 years and 3 months commencing on 1 May 2016. She declined to grant a recognizance release order. In respect of Count 2, being the offence of dealing with the proceeds of crime, her Honour sentenced Mr Yang to a term of imprisonment of 3 years commencing on 1 November 2016. She ordered that on the expiration of the period of 2 years, he was to be released upon a recognizance to be of good behaviour.

What is the Disparity?

1. It is apparent from her Honour's sentence of the applicant and Mr Yang that, with respect to Count 1, the importation of tobacco products offence, the sentences were identical. Each received a sentence of 2 years and 3 months, although commencing on slightly different dates to recognise time spent in custody.
2. The sentences were different in respect of the counts of dealing with the proceeds of crime. Mr Yang received a sentence of 3 years imprisonment with a recognizance release order after 2 years. That sentence was accumulated on the first sentence by 6 months.
3. The applicant received a sentence of 5 years with a non-parole period of 3 years and 4 months. This sentence was accumulated on the first sentence by 18 months.

Applicant's Submissions

1. The applicant pointed to the fact that, by reason of the greater period of accumulation between the sentences and the longer sentence which was imposed upon him, he will end up serving 2 years and 4 months more than Mr Yang with respect to their non-parole periods which he calculated as being a 90% longer sentence.
2. The applicant, in his submissions, accepted that there are four bases upon which a harsher penalty overall was appropriate, having regard the sentence imposed on Mr Yang. They are: 1. he was dealing with the proceeds of crime in a much larger sum ($1.55M) compared with Mr Yang ($302,688); 2. the period of offending of the applicant was significantly longer (2 years) compared to 3 months for Mr Yang; 3. the number of transactions which created the money laundering offences was significantly greater for the applicant (36 occasions compared to 23 for Mr Yang); and 4. the maximum sentence for the applicant's proceeds of crime offence was 25 years rather than 20 years.
3. However, the applicant's submissions concentrate upon the proposition that there is no apparent reason for the accumulation of the second count on the first count to be significantly different as between the applicant and Mr Yang. The applicant pointed to the fact that this accumulation date was not accompanied by any specific reasons from the sentencing Judge justifying it.
4. In particular, the applicant draws attention to the fact the Crown, in its comprehensive written submissions to the sentencing Judge, did not suggest that there ought be any differential degree of accumulation between Counts 1 and 2 for the applicant and Mr Yang. The Crown submitted that it accepted that there should be "… a significant degree of accumulation" between the sentences for Counts 1 and 2, for both the applicant and Mr Yang.
5. The applicant submitted that in circumstances where the sentencing Judge has made identical findings concerning the applicant's and Mr Yang's roles in the importation offences, the seriousness of the offending and largely identical findings about the subjective features, such a disparity in the effective sentence leads to a justifiable sense of grievance in the applicant.
6. Accordingly, leave to appeal is sought and it is submitted that the appropriate approach for this Court would be to bring the periods of accumulation between the applicant and Mr Yang into line, so that the Court ought leave the sentence as pronounced by the sentencing Judge, but adjust the accumulation by 12 months in the applicant's favour.

Crown Submissions

1. The Crown submitted that the difference in the effective sentences including both the period of accumulation and the longer sentence imposed on the applicant, Mr Yang, was due to the respective differences in their overall criminality. The Crown submitted that the applicant's overall criminality was greater. His money laundering offence was far more serious and, accordingly, the disparity between their effective overall sentences is justifiable and would not, objectively, give rise to a sense of grievance of a kind that would permit this Court to intervene.
2. The Crown pointed to the fact that the major point of distinction between the applicant and Mr Yang with respect to their overall criminality remained the different nature and circumstances of their respective money laundering offences and the objective seriousness of those offences. In particular, the Crown drew attention to the fact that the applicant himself remitted the money back to Korea through at least 36 transactions whereas Mr Yang dealt with the proceeds of illicit cigarette sales by directing an associate (Insung Pak) to make a series of 24 structured bank account deposits.

Discernment

1. The parity principle, upon which the sole ground of appeal is based, is an aspect of equal justice. Equal justice requires that there be consistency in punishment. That is because unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice. But there is no such thing as perfect consistency in sentencing: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 336-7 per Kirby J.
2. This Court has to carefully examine the individual sentences, which are exercises of evaluation and discretion, of both the applicant and Mr Yang, particularly where, as here, the same sentencing Judge has imposed a sentence on both of them at the same time. An appellate court will ordinarily be reluctant to intervene.
3. The issue however is whether, viewed objectively, the disparity between the two sentences is reasonably justified in light of any difference between the objective and subjective elements of the case: Myles v R [2017] NSWCCA 266 at [18]; Cameron v R [2017] NSWCCA 229 at [86]; Rees v R [2012] NSWCCA 47 at [50].
4. The fundamental question for this Court to consider is whether the discrepancy between the sentence is apt "… to give the appearance that justice has not been done": Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 per Gibbs CJ; Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 214 A Crim R 152 at [31].
5. Looked at objectively, there can be no doubt, as the applicant conceded, that the sentencing Judge was right to impose a longer sentence with respect to the money-laundering charge. The learned sentencing Judge did so and imposed a significantly longer sentence - 5 years with a non-parole of 3 years 4 months, compared with 3 years with a non-parole period of 2 years (made available through a recognizance). The sentence imposed on the applicant for the money-laundering offences was two-thirds greater than that imposed on Mr Yang. This significant difference was more than adequately explained by the different maximum penalties, the different sums of money involved and the difference in the number and nature of the transactions. The sentence properly reflected the more serious criminality engaged in by the applicant.
6. It is, however, the accumulation of the sentences, 6 months on the one hand for Mr Yang and 18 months on the other hand for the applicant, which is more troubling. In this particular case, the effect of the accumulation is that the applicant will serve 18 months solely relating to Count 1, the tobacco importation charge, and Mr Yang will serve 6 months imprisonment solely in relation to that charge.
7. Having regard to the subjective and objective features of the applicant and Mr Yang, and the almost identical roles which they played in the tobacco importation charge, together with all the other features of the offences and, in the absence of a clear expression of why it is that one ought serve, effectively, a sentence of one third of the other, this is a feature which seems to me to cause a justifiable sense of grievance.
8. The only basis upon which it was suggested that such a discrepancy in accumulation could be justified is by reference to the principle of totality. Put differently, as the Crown argued, such is the combined criminality of the applicant having regard to both offences (including the offences on the Form), it is appropriate that the applicant serve the length of the effective sentence for which he has been imprisoned.
9. Having examined the totality of the criminality, and in light of the proper application of the principle of totality, it seems to me that the submissions cannot explain the difference in the periods of accumulation imposed by the sentencing Judge.
10. The principle by which a sentencing Judge acts in accumulating a sentence for more than one offence, and the period of that accumulation, is entirely referrable to the principle of totality. However, when one is dealing with co-offenders whose offences are of the kind and similarity to which I have earlier drawn attention, then it is important, as the sentencing Judge herself recognised, that the provision of equal justice through the parity principle be given careful attention.
11. Notwithstanding the generally thorough, careful and thoughtful remarks of the learned sentencing Judge, I cannot find any basis for such a discrepancy in the period of accumulation.
12. In my view, the discrepancy is such as to give rise to a justifiable sense of grievance when viewed objectively and, accordingly, error has been demonstrated.

Re-Sentence

1. As the reasons of Basten JA show, the structure of the sentences imposed by the District Court did not comply with the provisions of Division 4 of Part 1B of the Crimes Act 1914 (Cth). In particular, the Court did not properly fix a non‑parole period. This failure does not affect the validity of the sentence imposed on the applicant: s 19AH(1)(a) Crimes Act.
2. However, it is necessary for this Court, in re-sentencing the applicant, to pay attention to the provisions identified. This explains why the new sentence to be imposed does not follow the same format as those imposed in the District Court.
3. The subjective and objective features have been comprehensively addressed in the course of these reasons.
4. No complaint was made about either sentence, nor could there have been. They were both fair and proper sentences. Certainly, the sentence for the second offence properly reflected the degree of criminality involved in the money-laundering offence which was a very significant offence over a lengthy period of time and involving significant sums of money. On that count (and also on Count 1), I am of the view that no lesser sentence is warranted on each count.
5. However, in re-sentencing I would impose the same sentences but would fix the commencement date for Count 2 as being 24 November 2016. That would take into account, as it seems to me, the similarity of the offences on Count 1 as between the applicant and Mr Yang.
6. I agree with the orders proposed by Basten JA.

Endnotes

1. Crimes Act, s 19AB(1)(c)(ii); see also definition of "aggregate" in s 16.
2. Xiao v R [2018] NSWCCA 4 at [294]-[298], [389]-[390] (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ); Eriyo v R [2015] NSWCCA 16 at [5], [26], [38] (Davies J; Hoeben CJ at CL and Johnson J agreeing); Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176 at [88], [91] (Garling J, Price and Harrison JJ agreeing).
3. See eg, R v Tang (2009) 23 VR 332; [2009] VSCA 182 at [73]; Cooper v The Queen [2012] VSCA 32 at [37]; Nicholls v The Queen [2016] VSCA 300 at [48]. 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: 27 April 2018