(e) To provide strategic criminal intelligence assessments and any other criminal information and intelligence to its Board. To provide advice to the Board on national criminal intelligence priorities.
The Board of the ACC, itself, has a series of functions including recommending to Parliament law reforms and other matters that may assist in the better detection and pursuit of criminals.
19. When an examiner is frustrated in his or her investigation, the ACC's functions are thereby compromised. Its capacity to investigate crime, gather intelligence, provide reports and recommend law reform to governments are also diminished. The stunning example is this case of the 356 illegally imported kilos of pseudoephedrine. It would seem from the material before me that no prosecution has been launched in respect of this very serious offence. No intelligence has been gained into the way in which the offence was committed. None of those responsible for the offending have been adequately investigated. A serious crime targeted at undermining the public health of Australian citizens has gone unsolved.
20. There was evidence in this matter from Federal Agent Kennedy as to lost assistance following to the AFP in its own investigation in respect of identities of potential suspects, addresses, vehicles. While I have no doubt that loss was real, it is not a matter appropriate to be considered in this sentencing. It may well be a result of frustrating the work of the ACC. However, the criminality of this offence relates solely to matters earlier identified. Impact upon the AFP investigations do not aggravate the criminality I am dealing with.
21. This is not an offence against the courts or curial system; (R v Einfeld [2008] NSWCCA 215). The ACC is not a curial institution. Its function is not to administer justice. Its functions are defined clearly in s 7C of the Australian Crimes Commission Act of 2002. I have already made reference to them. They concern investigating, storing information, providing intelligence assessments, making recommendations on law reforms. None of these are judicial functions. The acts of the offender hindered an investigation, which may, but not necessarily would have, brought offenders before the court. It would be pure speculation as to whether the administration of justice is compromised by his acts.
22. I note the misleading information was given in circumstances where the offender had been granted immunity and had been warned of the consequence of giving false information. His false answers were given deliberately, defiantly, and with the intent to protect another or, more likely, others. I am unable to say the number of persons who benefited from his deception. Clearly, there was some involvement of persons in South Korea who loaded the precursors into the container. Some, who were involved in hiding these precursors into salt packets or whatever that were ultimately packed in cartons, and some who initially supplied the precursors to those in South Korea.
23. There were also other persons to be involved in the distribution once the product arrived in Australia and, indeed, into its transformation from pseudoephedrine into amphetamine or, at least, on the way to obtaining amphetamine, more correctly. There may well have been persons involved in financing the venture. Investigators were unable to assess whether this was a one-off venture or one of a series. While I cannot say with precision who benefited from the offender's non-cooperation with examiner, I am satisfied more persons were involved in this venture than himself.
24. I am also satisfied the commission was denied any opportunity of forwarding information to the relevant investigators as a consequence of this offender's non-cooperation. I can see no mitigation to the objective seriousness of this offence. There is no suggestion of any danger to the offender, his loved ones, or his property had he given the information sought by the examiners.
25. Clearly, the detection and investigation of crime is a fundamental requirement for bringing criminals to justice. Clearly, the Australian Government set up the ACC to use coercive powers to facilitate investigation of crime in difficult cases. Instruction of this detection and investigative process in circumstances where a government has given special powers to examiners constitutes a serious flouting of the laws established for that purpose. I am satisfied the objective seriousness is such as to require imprisonment for this offence.
Subjective Matters
26. I turn to the subjective matters. They are matters personal to this offender. Not only am I sentencing for this offence but I am sentencing this offender for it. Matters personal to the offender may throw some light or insight into why it was he committed this offence or why a more or a less serious sentencing outcome is appropriate in this case.
27. Kim was born in December 1962. He was, on my calculation, 44 at the time of offending and he is 45, soon to be 46 at the time of sentencing. He was born in Seoul, South Korea. He had a normally happy childhood. He has one elder and one younger brother. His father passed away in 1983. He is a single man. He had a one-year relationship with a girlfriend in Sydney. He has friends in the Sydney Korean community. It is likely his elderly mother has passed away in recent times but he is unsure because as a consequence of his incarceration he has been unable to contact his brother. He came to Australia in 1987. He has visited from time to time his homeland.
Education, Skills and Employment
28. He completed his schooling in South Korea. He performed well academically and in sport whilst at school. He sought post-secondary education at a South Korean military college but, regrettably, failed, most likely because of difficulty with the subject of mathematics. He completed military service, however, in Korea in 1986. His main income stream from work in Australia came from cleaning and labouring jobs. He worked for one of his brothers when he returned to Korea, however, in a time of financial circumstances in South Korea that business failed. The offender claims the loss amounted to more than a million dollars. There may well be some link between that loss and the importation of 356 kilograms of pseudoephedrine. On the other hand, where I sit at the moment, it is purely speculative.
29. He has visited Korea since 2003. He claims at the time of his arrest, he was setting up a grocery importing business between South Korea and Australia. That claim must now be questionable given the contraband found in the container that was the subject of the AFP inquiries.
Physical Health
30. He reports good physical health. There seems little in his physical health that could impact upon his rehabilitation prospects. He says he does need dental work but, apparently, his need is not an urgent one because he is waiting until he is finally released from custody for that to occur.
Substance Abuse and Gambling
31. The offender is a social smoker. He is not a drug user. He enjoys social gambling such as card games, however, on occasions he has spent up to $500 on poker machines. There is no suggestion that his gambling or substance issues contributed to his criminality.
Mental Health Issues
32. He appears to be of normal intelligence. He does not suffer any inherent cognitive impairments. He does, however, experience anxiety. When stressed by relationship problems in 2003 when, as I understand it, his girlfriend left him, he appears to have overdosed (whether deliberately or not is unclear) on sedative medication.
Attitude to Offence
33. He appears to be without remorse in respect of his offending conduct. I doubt he has any real insight into why his conduct is criminal. He may understand, and hopefully he does, it is morally wrong to be untruthful but there is a difference between moral wrong and criminal conduct.
34. He entered his plea to this matter on the day it was set for trial.
I'm right on that aren't I Madam Crown?
MARINOS: Yes, however it was indicated to the Crown about a week and a bit before that there was a plea offer.