R v Kim, Gwan Hong

Migration Act LEGISLATION CITED: Australian Crime Commission Act 2002 Crimes Act 1914

R v Aristodemou unreported, NSWCCA 30/6/1994 R v Einfeld [2008] NSWCCA 215 R v Daniel James Rodd (Qld Supreme Court, per Wilson J, 27/6/08) R v Nash (2008) SASR 109 R v Dean Colin Abell [2007] QCA 448 R v Geoffrey John Seaniger (Qld Supreme Court, per Mullins J, 4/5/07) R v Jim Kafritsas (Victorian County Court, per Dyggan J, 13/4/07) R v Michael Joseph Hood (NSW District Court per Ander DCJ, 12/7/07) CASES CITED: R v Mario D' Alessandro (NSW District Court per Ander DCJ, 30/01/07) Cth DPP v Marc Quaid (WA Magistrates Court, per Magistrate Malley, 24/7/06) R v Delmardoros (WA District Court per Groves DCJ, 21/3/06) R v Daniel Luke Pelham (Tas Supreme Court, 27/10/05) R v Kieran Peter Kordic (Qld District Court per Judge Samios, 29/7/05) R v Walter Allan Hughes (Qld District Court per Trafford-Walker J, 22/4/04) R v Irwin [1999] NSWCCA 361 (13/8/99) R v Steven Leslie Franklin-Bull (Qld District Court per Judge O'Brien, 13/8/99) Barnes v Boulton [2004] FCA 1219

PARTIES: Regina Gwan Hong Kim

COUNSEL: Crown: N Adams Defence: N Steel

JUDGMENT

1. As the conduct of criminals has become more and more sophisticated, secretive, and menacingly effective in avoiding detection, governments, both State and Commonwealth, have established investigative commissions with their wide range of powers including powers to coerce persons to divulge under oath what they know about facts, circumstances and persons that may be linked to criminal activity. The New South Wales Crime Commission, ICAC, the New South Wales Police Integrity Commission and the Australian Crime Commission are all examples of investigative bodies using investigative powers given to them by government.
2. Justice Badgery-Parker, speaking about ICAC, made observations that would apply equally to the Australian Crime Commission and its approach to the investigation of crime. "The will of the community which led to, and is manifested by, the enactment of the ICAC Act is that corruption should be eradicated from the community and that this means to produce that result should include the coercive and inquisitorial powers conferred on ICAC by statute"; ( R v Aristodemou unreported, NSWCCA 30/6/1994)
3. Gwan Hong Kim, between 5 and 7 March 2008 at Sydney, gave evidence before an examiner at the Australian Crime Commission (ACC) that he knew to be false in a material particular when the examiner was seeking to question him about his knowledge and involvement in the circumstances concerning the importation of a container to a company of which he was director and sole shareholder that had entered Australia from South Korea on 25 January 2008.
4. The interest of the ACC had been triggered because, secreted within the container were seventeen cardboard boxes containing 356.2 kilograms of a border controlled precursor, pseudoephedrine. Pseudoephedrine is, of course, a precursor to amphetamine based drugs. The importation into Australia of such a large quantity of border-controlled precursor is a highly serious offence against the laws of the Commonwealth of Australia.
5. It appears the Australian Customs Service became aware of the border control precursor by 29 January 2008. The Australian Federal Police (AFP) took up their investigations on 30 January 2008. Police inquiries were able to backtrack this offender's activities to about 23 November 2007 when he sought assistance in registering a company on his behalf. That was the company that imported the container. Police also established an interest he had in leasing a warehouse as early as 27 November 2007. Police established as early as the 3 December 2007, the offender was indicating he was expecting a container and sought assistance unloading the container with a forklift and storing it in the warehouse he had leased. Police were able to establish monies ($5,064) had been paid for the consignment of a twenty-foot shipping container including freight and delivery charges.
6. On 4 February, an associate of the offender informed him of police inquiries. It seems the container had not been cleared by Customs at that date. On 12 February, the offender made inquiries of his own customs broker as to where the consignment was. At this time, he was in the company of two males, one an Australian, the other an Asian. Those males have not been identified.
7. By 29 February, the offender had organised to meet the person who had earlier informed him of police interest in the container. That meeting was set for 3 March. On 3 March AFP intercepted this offender on his way to a meeting with his customs manager and the other gentleman. He was then detained under the Migration Act as an unlawful non-citizen. The offender could have been in little doubt that police were making inquiries in respect of the container.
8. A month before he was detained, they had issued a search warrant on the leased warehouse premises and seized a number of documents relating to the trans-shipment of the container and his customs manager's details. If he was not concerned when his friend or associates told him police were investigating, he certainly may well have become so after the execution of the search warrant.
9. Between 5 and 7 March, the offender was summonsed to an examination conducted before an examiner at the Australian Crime Commission (ACC). On several occasions when giving evidence, he indicated that he did not know or could not remember items in circumstances that clearly demonstrated he was obfuscating and blocking the examiner's inquiries. Further, the answers he was giving were deliberately untruthful.
10. The indictment contains four particulars of the false evidence and they suffice for the purposes of defining the criminal acts that I am dealing with. (1) The offender said that he did not know or could not remember the arrangements he had made to import a container of goods consigned to the Korea Food Importers Pty Ltd that had entered Australia from South Korea on or about 25 January 2008.

(2) He gave evidence that he did not know or was unable to identify other persons involved with him in the establishment of a company named Korea Food Importers Pty Ltd.

(3) He gave evidence that he did not know anything about the arrangements made in connection with his attendance in company with two unidentified male persons at the office of Rohde and Liesenfeld Pty Ltd on 12 February 2008.

(4) And finally, that he did not know or could not remember any residential address at which he lived between the date of his first arrival in 1987 and the date of his detention on 3 March 2008.

Objective Criminality 11. From the facts as he finds them to be, a sentencing Judge must assess the objective criminality of an offence before the court. That is done by comparing, objectively, the criminality of this offence with offences of similar kinds that have come before courts in the past. The objective criminality plays a crucial part in determining the final sentencing disposition. Offences of giving evidence that is knowingly false or misleading to an examiner of the Australian Crime Commission do not frequently come before the courts. 12. In submissions, I was given a list by the Commonwealth DPP of fifteen cases on an Australia wide basis, dealt with in various jurisdictions and, I note, not all of them were ACC cases. I will attach to these remarks the comparative sentences summary given to me. 13. For this reason, it is worthwhile to analyse with some care the nature of criminality arising from this offender's conduct. In a normal interaction with others in the community, knowingly giving false or misleading information is not usually regarded as criminal conduct. It may well go to a person's reputation for trustworthiness. It may well constitute reprehensible or even cruel behaviour. But in such cases as this, it is regarded as criminal conduct attracting a maximum penalty of five years. 14. There is a clear reason, why the false evidence given by this accused amounts to criminal conduct by him. He was before a statutorily constituted commission of the Australian government. To that commission, he gave a solemn promise that he would "tell the truth, the whole truth". The false evidence he gave was a breach of this solemn promise. Section 33 of the Australian Crime Commission Act 2002 mandates that such conduct is criminal conduct. In other words, the law deemed that conduct criminal. 15. The measure of the objective criminality arising from the conduct will be found in the number of occasions false evidence was given; the number of separate issues covered by the false evidence; the nature of the false evidence given; the degree of malice motivating the decision to give the false evidence; the impact the false evidence has upon the Australian Crime Commission; and related to this last, the number of persons who benefited from the false evidence given. 16. In respect of this offender, the particulars in the indictment make clear and the evidence supports that four areas in which the offender gave false evidence. I have earlier referred to them. They relate to, (1) Initial arrangements made to import the container.

(2) The identity of other persons involved in the enterprise.

(3) The explanation for his being accompanied by two unidentified males when making inquiries about the fate of the container on 12 February 2008.

(4) His residential address at the time he made arrangements to import the container and when he was seeking to claim the container from Customs. It will be seen that the issues covered by the areas in which false evidence were given relate to the initiation of what turned out to be a serious criminal enterprise against the law of the Commonwealth; the identity of persons who may have been involved in or could give authorities assistance in investigating this serious criminal enterprise; the identity of persons who may have benefited from and/or committed further criminal offences arising from the importation of border control precursors; and access to a site at which there may have been documents or other hard physical evidence that may, in turn, have given insight into the methodology of mechanics used and personnel associated with illegal importation of border control precursors. 17. The nature of the false evidence given in this case was the offender's claimed inability to remember. For example, "Q. Where were you living before you went into detention? A. I don't know.

Q. You just went into detention a few days ago? A. I don't know." Or, these questions; "Q. Did you make arrangements for a container to be shipped to Australia...for your company...? A. I don't know.

Q. What do you know about the container? A. I can't think of anything at the moment." While these answers constitute false evidence, in fairness, it should be noted they are not concocted falsehoods providing created information as to dates, names, places, vehicles and circumstances requiring investigators to establish their falsehood. As soon as each of the answers given by this offender were given, its falsehood was immediately apparent. The Impact of the False Evidence Upon the Account 18. The first direct impact of the offender's conduct is that it frustrated the examiner conducting the inquiry. He was pursuing an investigation relating to a Federal criminal activity. As earlier noted, that criminal activity was the unlawful importing of 356 kilos of border controlled precursor. The examiner is one of the visible faces of the ACC as it pursues it functions. These include: (a) To collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of information and intelligence.

(b) To undertake, when authorised by the Board, intelligence operations.

(c) To investigate matters relating to Federally relevant criminal activity.

(d) To provide reports on outcomes of operations and investigations.

(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.

HIS HONOUR: The administration of justice was thereby served and he should receive a benefit by virtue of that fact. I suspect the personal deterrence that the sentence would have upon this offender is not great. I will put that another way. If he were taken to the ACC tomorrow, I am far from convinced his conduct would differ much, if at all, from what it was on the 5 and 7 March. 35. The sentence I am imposing is one of imprisonment and a requirement that he be of good behaviour pursuant to a bond, I intend to give. I have compared the sentence I have imposed to others given to other offenders guilty of similar offences. I am satisfied the sentence to be imposed adequately punishes this offender. 36. As to his rehabilitation prospects, frankly, I am unable to prognosticate. From previous experience I am aware that imprisonment brings far greater and more profound sense of shame within a South Korean family than is the case here in Australia. Hopefully, the shame he has brought upon himself and his family will motivate him to lawful behaviour in the future. 37. So far as can be discerned, apart from himself, there is no other person directly affected by his incarceration. I have mentioned his brothers in Korea, but what they know of his predicament is not disclosed in evidence. Indeed, because of the shame, it may well be he has kept this information from them entirely. 38. Mr Kim, would you stand up please. Gwan Hong Kim, you are convicted of the offence that you, between 5 and 7 March 2008 at Sydney at an examination conducted before an examiner did give evidence that to your knowledge was false in a material particular, namely, on the topic of your knowledge about and your involvement in the circumstances connected with the importation of a container consigned to Korea Food Importers Pty Ltd, a company of which you were a director and sole shareholder. I note that that container entered Australia from South Korea on or about 25 January 2008. 39. For that offence, you are sentenced to two and a half years imprisonment to date from 25 March 2008. 40. I order your release pursuant to a recognizance release order after you have served eight months imprisonment. I order you to be released on 24 November 2008 pursuant to that recognizance release order. 41. The balance of your sentence will be one year ten months to expire on 25 September 2010. I order you to enter into a recognizance under s 20 of the Crimes Act 1914.

Comparative Sentences Summary Name Period of Imprisonment to Serve Bond Period Balance of term of Imprisonment Total Imprisonment 1 Rodd 6 m (Concurrent) - - 6 m 2 Nash 6 m 2 y 12 m 18 m 3 Abell 4 m 3 y 8 m 1 y 4 Seaniger 6 m - - 6 m 5 Kafritsas 10 m 2 y 10 m 20 m 6 Hood 9 m 15 m 15 m 2 y 7 D'Alessandra 3 m 2 y 9 m 12 m 8 Quaid - 2 y 10 m (wholly suspended) - 9 Delimardoros 6 m 12 m 12 m 18 m 10 Pelham 4 m 2 y 11 m 15 m 11 Kordic 3 m 2 y 9 m 12 m 12 Hughes 3 m 2 y 9 m 12 m 13 Irwin 2 y (fixed- concurrent) - - 2 y 14 Franklin-Bull - 3 y 2 y (wholly suspended) 2 y 15 Aristodemou 2 m (fixed) - - 2 m

R v Daniel James Rodd (Qld Supreme Court, per Wilson J, 27/6/08)

1 x count give false or misleading evidence- s.33 (1) ACC Act 2002; and

2 x disclose existence of summon- s.29 (1) (a) ACC Act 2002.

Convicted and sentenced to 6 months imprisonment on each, to be served concurrently.

NOTE- sentence made cumulative with other State sentences (drug related offences), resulting in an overall sentence of 9 years with NPP 6 years.

[Wilson J's remarks on sentence not available to date. Copy of Prosecutions report only.]

R v Nash (2008) SASR 109 (decision of the SA CCA on 29/2/08)

14 x counts under s.33 (1) ACC Act 2002 give false or misleading evidence.

Sentenced re. 14 x s.33 charges to 18 months imprisonment, to be released after serving 6 months on recognizance to be of GB for 2 years.

Crown appeal only re. Sentence imposed for State Firearms Act charges. No appeal re. Sentence imposed re. S.33 charges.

R v Dean Colin Abell [2007] QCA 448 (19 December 2007)

1 x refuse to answer questions- s.30 (2) (b) ACC Act 2002.

Plea of NG. Verdict guilty. Sentenced to 12 months imprisonment and ordered to serve 4 months and to be released on recog to be of GB for 3 years.

Appeal against conviction and sentence to Qld CA. Dismissed.

R v Geoffrey John Seaniger (Qld Supreme Court, per Mullins J, 4/5/07)

G plea to 1 count x refuse/fail to take oath or affirmation- s.30 (2) (a) ACC Act. Also G plea to producing a dangerous drug (methylamphetamine).

R v Jim Kafritsas (Victorian County Court, per Dyggan J, 13/4/07)

7 counts x give false evidence. Sentenced to 12 months imprisonment on each count- partial accumulative.

Sentenced to an overall period of 20 months imprisonment, to serve 10 months imprisonment, and the remaining 10 months to be suspended for 2 years.

R v Michael Joseph Hood (NSW District Court per Ander DCJ, 12/7/07)

NG plea to 2 x counts of false evidence under s.33 (1) Act 2002.

Sentence to 18 months imprisonment in respect of each offence (to be served partly concurrently and partly cumulatively) resulting in a total head sentence of 2 years. Ordered to serve 9 months imprisonment and to be released on recog to be of GB for 15 months.

R v Mario D' Alessandro (NSW District Court per Ander DCJ, 30/01/07)

Sentenced to 12 months imprisonment and ordered to serve 3 months and at expiration of 3 months to be released upon entering recog to be of GB for 2 years.

Cth DPP v Marc Quaid (WA Magistrates Court, per Magistrate Malley, 24/7/06)

G plea to one count under s.33 (1) ACC Act. Maximum penalty 12 months imprisonment.

Sentenced to 10 months imprisonment, to be released forthwith upon entering a recog to be of GB for 2 years.

R v Delmardoros (WA District Court per Groves DCJ, 21/3/06)

Initially charged with 8 x counts s.33 (1) ACC act. Plea negotiations resulted in offer to plead guilty to counts 3,4 and 5 which was accepted. Remaining counts on the indictment were discontinued by notice filed by Cth.

Sentence adjourned to await result in trial in respect of a State drug prosecution (methylamphetamine). Ultimately found guilty after jury trial.

Re. State charge of possess prohibited drug sentenced to 3 months imprisonment.

Re. State charge of sell prohibited drug sentenced to imprisonment for 2 years and 6 months which was ordered to be served cumulatively on the 3 month sentence.

Re. ACC Act counts (x3) sentenced to 18 months imprisonment imposed on each count to be served concurrently. This sentence to be served cumulatively on the State sentence. Ordered to serve 6 months of that sentence and upon expiration of 6 months to be released upon entering a recog to be of GB for 12 months.

R v Daniel Luke Pelham (Tas Supreme Court, 27/10/05)

G plea to offence of failing to answer questions contrary to s.30 (2) (b) ACC Act. In addition, s.16BA Schedule to take account of one count of give false or misleading evidence under s.33 ACC Act.

Sentenced to 12 months imprisonment for the refusal to answer to questions. Cumulative sentence of 3 months imprisonment for the persistence.

Total sentence 15 months imprisonment and ordered to serve 4 months imprisonment and to be released upon entering a recog to be of GB for 2 years.

R v Kieran Peter Kordic (Qld District Court per Judge Samios, 29/7/05)

G pleas to 3 counts of failing to answer questions.

Sentenced to 12 months imprisonment and directed to be released after serving 3 months upon entering a recog to be of GB for 2 years.

R v Walter Allan Hughes (Qld District Court per Trafford-Walker J, 22/4/04)

G plea to charge of refusing to answer a question at ACC examination (judgment makes no reference to offence provision but is must be s.30 (2) (b) ACC Act- punishable by maximum penalty of 5 years imprisonment, per s.30 (6).

Sentenced to 12 months imprisonment and ordered to serve 3 months, balance suspended and released upon entering recog to be of GB for 2 years.

G plea to s.319 Crimes Act 1900 (NSW) charge- pervert course of justice (maximum penalty is 14 years imprisonment).

Also G plea to s.107 Police Integrity Commission Act- knowingly give false evidence to PIC (maximum penalty 5 years imprisonment).

Originally sentenced to 12 months imprisonment re. S.319 charges and 12 months imprisonment to be served concurrently re. S.107 charge.

Crown appeal (upheld 2:1)- resentenced to minimum of 3 years imprisonment re. S.319 charge, with an additional term of 1 year. A fixed term of imprisonment of 2 years imprisonment fixed re. S.107 charge (to be served concurrently).

14. R v Steven Leslie Franklin-Bull (Qld District Court per Judge O'Brien, 13/8/99)

Sentenced to 2 years imprisonment but released forthwith on recog to be of GB for 3 years.

(NB. At time of offence was on parole, having served a sentence of 7 years imprisonment, NPP 2 years and 9 months for trafficking in a dangerous drug, cannabis).

15. R v Anthony Aristodemou (unreported, NSWCCA, 30/6/94)

G plea to 2 x s.87 ICAC Act 1988 offences- for giving false or misleading evidence at ICAC examination (maximum penalty 5 years imprisonment).

Sentenced to a fixed term of imprisonment of 2 months.

Nature of examinations under ACC Act 2002 and abrogation of the privilege against self-incrimination.

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