Gleeson CJ, Callinan JJ, French CJ, Bell JJ, Johnson J
Source
Original judgment source is linked above.
Judgment (20 paragraphs)
[1]
Introduction
Jae Young Choi (the offender) appears for sentence after pleading guilty in the District Court for the offence of importing a commercial quantity of a border controlled drug, being 2,358.1 grams of cocaine contrary to s 307.1(1) Criminal Code (Cth).
The maximum penalty for the offence is life imprisonment and/or a fine 7,500 penalty units.
[2]
Approach to Sentencing
To the extent I make findings of fact adverse to the offender, I am satisfied of that act beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in s 16A of that Act.
A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: s 16A(1) of the Act. The Court must take into account the matters listed in s 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in s 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].
For a federal offence the non-parole period is the minimum period that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525; see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The offender entered a plea of guilty just before the matter was listed for trial which has saved the need for witnesses to be called at trial and there is some utilitarian value in the plea. The plea also indicates a willingness to facilitate the course of justice. The appropriate discount is 10%.
I have had regard to the principles relevant to sentencing serious federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J) and the comments of Bathurst CJ in R v Nassir [2020] NSWCCA 88 at [100].
[3]
Facts
The parties tendered an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.
[4]
Prior travel to Australia in 2022
The offender previously travelled to Australia between 27 August 2022 and 2 September 2022.
Between 25 August 2022 and 29 September 2022, the offender communicated with an unknown person saved in his mobile device as "Seong-il Korea" on WhatsApp, discussing his transit in Dubai between 25 August 2022 - 26 August 2022, and again on 2 September 2022.
On 3 September 2022, the offender confirmed that he had arrived safely and discussed about the transfer of money with Seong-il Korea.
[5]
Travel arrangements to Australia in 2023
Between 13 February 2023 and 9 March 2023, the offender communicated with an unknown person saved in his mobile device as "Seong-il" on WhatsApp. The offender agreed to "make a trip" in mid-February 2023 and exchanged messages about travel plans and arrangements to take baggage to Australia.
On 19 February 2023, the offender discussed with Seong-il the travel dates and sought to identify the person "receiving the product" asking, whether the person would be Korean or Chinese.
On 20 February 2023 Seong-il instructed the offender to check in "2 big bags" and bring "the small bag" as carry-on luggage. Seong-il told the offender that there won't be "an issue" as "it passed the test". He further stated that "…they are saying that's the best way to bring them. …If you put a small bag in a big bag, that can look suspicious. That's what they say. But from our side we all went like that."
Also on that day, further discussion took place between the offender and Seong-il as to whether the offender needed to get "the yellow fever vaccination" to enter Australia. Seong-il stated that "they must have changed. They didn't have that when you went there last year, right? Something must have changed in that country."
On 9 March 2023, as the offender was boarding the plane, he reported to Seong-il that he had issues taking "the small bag" on the plane and he was required to check it in.
The offender's WhatsApp conversations with "Seong-il Korea" and "Seong-il" show that the offender's previous travel to Australia in 2022 was organized by the same person, with whom the offender had an ongoing relationship.
[6]
Import of commercial quantity of border controlled drug
On 9 March 2023, the offender departed Guarulhos, Brazil and transited through Dubai, United Arab Emirates before arriving in Sydney.
At about 10:30pm on 10 March 2023, the offender arrived at Sydney International Airport.
At about 12:01am on 11 March 2023, the offender was processed through immigration. He completed an Incoming Passenger Card (IPC) in the Korean language, in which he recorded that he was not bringing illicit drugs into Australia.
The offender was in possession of three "Swiss Gao" branded black soft-sided suitcases of varying sizes; small (Suitcase 1), medium (Suitcase 2) and large (Suitcase 3).
[7]
Baggage examination
Australian Border Force (ABF) officers x-rayed and examined Suitcase 1 and its contents. A white powder was detected during the deconstruction process.
A series of tests on samples of white powder and subsequent forensic examination of Suitcases 1-3 revealed there was a total of six packages concealed within the three suitcases, being two packages concealed underneath the lining in each suitcase, one in the suitcase base and the second around the internal perimeter.
The substance impregnated in each of the six concealed packages was later analysed and found to be cocaine with an average purity of 34.6%, with a pure weight of 2,538.1 grams.
[8]
DNA examination
The Australian Federal Police (AFP) undertook DNA testing on the exterior of the concealed packages from the base of suitcases 2 and 3.
From Suitcase 2, a partial male DNA profile was obtained that was not suitable for analysis.
From Suitcase 3, a mixed DNA profile from a minimum of two individuals was revealed, one of which the offender could not be excluded as a contributor.
[9]
Arrest on 11 March 2023
On 11 March 2023, the offender was subsequently arrested and cautioned by AFP members with the assistance of a Korean interpreter.
Police seized his mobile phone, passport, various personal items, about $1,000 in USD and $1,000 in BRL.
The offender participated in a recorded interview with AFP, during which he stated the following.
1. a Brazilian person unknown to him, named "Reginald", asked him to take the bags to Australia. They told him that if he took the bags, they would pay for his ticket and his travel while he was in Australia and pay him $1,000 in USD;
2. he took the bags voluntarily after they told him they would pay him;
3. they told him that someone will come to his hotel and collect the bags;
4. he had no idea that there were drugs inside the bags. He checked the bags to see if there was anything suspicious but did not find anything. If he felt that there was something suspicious in the bags, he would not have taken the job;
5. he thought they were giving him money to do a very simple job, so he agreed to do it;
6. he only came to Australia for the purposes of delivering the bags; and
7. he came to Australia in 2022 to deliver a bag for a different person. They paid for his ticket and gave him cash. Last time he did this, they picked up the bag on his second day in Australia.
[10]
Sentence Assessment Report
The Court received a Sentence Assessment Report (SAR) dated 17 October 2024. The salient points in the SAR can be summarized as follows.
Prior to his arrest, the offender was living in Brazil. He had been employed as a hotel manager in Brazil for approximately two years prior to his arrest. The offender has no connection to Australia and intends to return to Brazil.
The offender is an unlawful non-citizen as he does not currently hold a valid visa. ABF advised that when he is released from prison, he will be assessed for visa eligibility to remain in Australia.
The offender has no support network within Australia, and his family live in Brazil.
The offender has a history of cocaine and cannabis use, claiming to use both drugs on a social basis to an unknown amount prior to his arrest.
The offender disclosed a history of problematic gambling and reported to have debt of approximately $450,000 due to his gambling habits. He confirmed that the income generated from his employment was insufficient to address his financial situation within the community. He claimed that the sum of his gambling debt would be cleared upon the successful completion of the index offence.
Although there was no direct victim of his offending behaviour, the offender acknowledged his actions as wrong and stated drugs to be bad. He expressed a willingness to undertake intervention and community service work.
The offender has been assessed by Community Corrections at a low risk of reoffending and unsuitable to undertake community service work due to his unstable post release plan.
[11]
Nature and circumstances of the offence
The offender acted as a courier, which was an essential role in the importation of the drugs. The offender took the suitcases with him from Brazil, through United Arab Emirates and then boarded a flight to Sydney.
The offender exchanged WhatsApp messages with an individual referred to as "Seong-il" discussing the details of the delivery and providing updates.
The offender played an intermediary role acting on instructions.
The offender acted for financial gain.
The offender was reckless as to the suitcases containing drugs. I do not accept that the offender had "no idea" as to the presence of the drugs because that is contrary to the content of the messages. The circumstances of the arrangement was highly suspicious and the offender's DNA was located where the drugs were concealed. I am unable to find that the offender knew of the quantity of the drugs involved due to the sophisticated means of concealment of them.
The amount of the drugs at 2,358.1 g pure was substantial. The amount was just over the commercial quantity.
I have had regard to the maximum penalty for the offence.
[12]
Contrition
The offender has accepted that his actions were wrong and has accepted responsibility for them by pleading guilty. I am satisfied he has demonstrated some contrition.
[13]
Specific deterrence
The sentence imposed must reflect the need for specific deterrence. The offender has a prior drug trafficking conviction in Brazil for which he was sentenced to imprisonment for a term of 1 year and 8 months.
[14]
General deterrence
General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such a severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial and other rewards will be neutralized by the risk of severe punishment.
[15]
Character, antecedents, age, physical and mental condition
The offender is 54 years of age and was aged 52 at the day of his arrest. He is a Korean citizen and a permanent resident of Brazil.
The offender has a previous conviction in Brazil.
The limited subjective material provided by the offender does not permit me to make any other relevant findings.
[16]
Pre-Sentence Custody
The offender has been in custody from the date of his arrest on 11 March 2023 for a period 710 days. I will back date the sentence to be imposed to the date of his arrest to take into account this period.
[17]
No Alternative to Imprisonment
I have had regard to s 17A(1) of the Crimes Act and I am satisfied after considering all possible alternatives that no sentence other than imprisonment is appropriate for the reasons I have set out in this judgment.
[18]
Penalty
Jae Young Choi is convicted.
Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 5 years to date from 11 March 2023 and expiring on 10 March 2028.
I fix a non-parole period of 2 years and 9 months which will expire on 10 December 2025, when the offender will be eligible to be released on parole.
[19]
Explanation of Sentence
I am obliged to explain to the offender the effect of the orders I have made.
Jae Young Choi, the sentence I have imposed means that you will be obliged to spend a minimum period in custody of 2 years and 9 months. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 10 December 2025.
It will be a matter for the Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty upon parole after 10 December 2025. If you are released on that day, you will remain on parole for a further period of 2 years and 3 months. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.
[20]
Amendments
19 February 2025 - Removal of ss 11.2A(1) and 311.4(1) from paragraph 1.
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Decision last updated: 19 February 2025