REGINA v TAE

Court of Criminal Appeal (NSW)|2005-02-11|Before: James J, Hidden J, Bell J

JUDGMENT OF: James J at 1; Hidden J at 34; Bell J at 35

DECISION: Leave to appeal granted. Appeal against sentence dismissed, subject to this Court holding that the sentence that would have been imposed on the applicant, but for future assistance, would have been two years five months

CATCHWORDS: CRIMINAL LAW - sentencing - bribery of a Commonwealth public official - assistance to authorities - whether the sentencing judge erred in calculating the purported discount - whether the sentencing judge erred by failing to sentence the applicant in accordance with s21E of the Crimes Act 1914 (Commonwealth), having regard to the assistance - whether the sentencing judge gave adequate value to the assistance

Crimes Act 1914 (Commonwealth) LEGISLATION CITED: Criminal Code Act 1995 (Commonwealth)

Regina v El Hani [2004] NSWCCA 162 CASES CITED: Regina v Gallagher, (1991) 23 NSWLR 220 Regina v Pang (1999) 105 A Crim R 474

GJ Bellew - Respondent COUNSEL: GD Wendler - Applicant

Commonwealth Director of Public Prosecutions - Respondent SOLICITORS: Youngs Attorneys - Applicant

IN THE COURT OF CRIMINAL APPEAL 2004/2709

JAMES J HIDDEN J BELL J

11 February 2005 REGINA v Chung Pong TAE Judgment 1 JAMES J: Chung Pong Tae has applied for leave to appeal against the sentence imposed on him in the District Court by his Honour Judge Nield on 23 April 2004, after he had pleaded guilty to an offence of bribery of a Commonwealth public official, being an offence under s141.1(1) of the Criminal Code Act 1995 (Commonwealth), for which the maximum penalty is imprisonment for ten years. In sentencing the applicant Judge Nield took into account an additional offence, that, not being a registered migration agent, the applicant asked for or received a fee or reward for giving immigration assistance. His Honour sentenced the applicant to imprisonment for a term of two years two months, to date from 20 April 2004, and ordered that the applicant be released on recognisance on 19 August 2005, after serving one year four months of the sentence. 2 The facts of the offences are set out in a facts sheet prepared by an Australian Federal Police Agent, which was admitted into evidence in the proceedings on sentence. The facts were briefly summarised by his Honour in his remarks on sentence. 3 Having regard to the grounds sought to be relied on by the applicant on this application, it is unnecessary to refer to the facts of the offences in much detail. It is sufficient to say that on twenty-two occasions between 11 March 2003 and 30 May 2003 the applicant paid a sum of money as a bribe to Commonwealth public officials, being officers of the Department of Immigration and Multicultural and Indigenous Affairs, to obtain a visa or an extension of a visa for some other person. The applicant, not being a registered migration agent, received a reward for his services from the person seeking the visa or the extension of the visa. 4 As his Honour remarked in his remarks on sentence, the applicant had not committed simply a single, isolated offence; rather he had engaged in a course of criminal conduct extending over two and a half months. In his remarks on sentence his Honour found that the applicant's motive for committing the offences was simply greed. 5 In his remarks on sentence the sentencing judge noted some of the subjective features of the applicant. He was born in South Korea on 20 October 1971. His mother still lives in South Korea and is in poor health. The applicant first entered Australia in 1998 on a tourist visa and left Australia when the visa expired. The applicant re-entered Australia with his newly married wife in 1999, after obtaining a short stay business visa. He worked for a time in educational institutions but was unemployed at the time he was sentenced. After the applicant was arrested, his wife returned to South Korea. 6 The applicant had no previous criminal convictions in South Korea or Australia. 7 In his remarks on sentence Judge Nield referred to the applicant's plea of guilty and to assistance provided and undertaken to be provided by the applicant to the authorities. 8 The applicant had been arrested and charged on 1 July 2003. After the Crown brief of evidence was served on the applicant, on or about 25 November 2003, he offered to assist the Australian Federal Police in its investigation of his co-offenders, including a Mr Bruce who was one of the corrupt Commonwealth immigration officials. On 9 February 2004 the applicant made a long statement to the Australian Federal Police of the evidence he would be prepared, if necessary, to give in court as a witness. In the statement he gave details of the conduct of himself, of the co-offender Bruce and of a co-offender named Ong, who had been the source of many of the clients. The applicant also provided information about some unrelated criminal matters. On 24 March 2004 the applicant made a supplementary statement. On 9 March 2004 the applicant entered a plea of guilty to the offence under s141.1 of the Criminal Code. 9 In the proceedings on sentence Judge Nield was provided with a sealed letter of the usual kind from an Australian Federal Police officer, in which the officer assessed the applicant's assistance. On the hearing of this application this Court has been able itself to inspect this letter. Judge Nield found that the applicant's assistance in the investigation of his co-offenders had been significant and valuable and that the applicant had also provided information about offences committed by persons other than the co-offenders. His Honour noted that the applicant had given an undertaking to give evidence for the Crown on the prosecution of his co-offenders and found that the applicant's evidence in those prosecutions would be important to the Crown. His Honour also found that, by giving assistance, the applicant had put himself at risk of retaliation from the co-offenders and from other persons. 10 In his remarks on sentence his Honour explained how he had arrived at the sentence he imposed. His Honour had decided, leaving aside the applicant's plea of guilty and the applicant's assistance, that a starting point of imprisonment for four years would be appropriate. His Honour then continued: "I intend to discount the period of four years by twenty percent on account of the offender's guilty plea which, for ease of calculation, is nine months, thereby reducing four years to three years three months. I intend to further discount the period of three years three months by one-third on account of the offender's assistance to police and the Crown, including promised evidence for the Crown on the prosecution of his co-offenders, thereby reducing three years three months to two years two months. I intend to order the release of the offender on recognisance after serving one year four months." 11 On this application, counsel for the applicant relied on three grounds of appeal, which I will deal with in turn.

Ground One: The sentencing judge erred when his Honour purported to discount the period of four years imprisonment by twenty percent, thus arriving at the figure of nine months discount. 12 I have already referred to the part of his Honour's remarks on sentence in which his Honour, in explaining how he had arrived at the sentence he imposed, said: "I intend to discount the period of four years by twenty percent on account of the offender's guilty plea which, for ease of calculation, is nine months, thereby reducing four years to three years three months." 13 It was submitted by counsel for the applicant that his Honour had made a mathematical error, in that, if a period of four years is to be discounted by twenty percent, the amount of the discount would be 9.6 months and not nine months. 14 In my opinion, this submission depends on an excessively pedantic reading of this part of the remarks on sentence. A fair reading of his Honour's remarks, which is supported by his Honour's use of the expression "for ease of calculation", is that his Honour intended to allow a discount of about twenty percent, producing as the amount of the discount a round figure of nine months. 15 I would reject the first ground of appeal.

Ground Two: The sentencing judge erred by failing to sentence the applicant in accordance with s21E of the Crimes Act (1914) Commonwealth, having regard to the fact that the applicant had rendered assistance to law enforcement authorities. 16 Section 21E of the Crimes Act provides (in part): 1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:

(a) if the sentence imposed is reduced - specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and

(b) if the non-parole period is reduced - specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction.

(a) a federal sentence is imposed or a federal non-parole period is fixed; and

(b) the sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and

(c) after sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking; the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non-parole period.

(3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal:

(a) if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking - must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and

(b) if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking - may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate. 17 It was submitted by counsel for the applicant that his Honour was mandated by s21E to identify the sentence he would otherwise have imposed, had there not been assistance to the law enforcement authorities. 18 I consider that this ground of appeal should be upheld, but only to a limited extent. 19 In his remarks on sentence his Honour did say that the sentence he was about to impose was reduced by reason of the applicant's assistance. His Honour did say that, apart from the reduction for the applicant's assistance, the sentence that would otherwise have been imposed would have been three years three months. However, I accept that there was a breach of s21E of the Crimes Act, in that s 21E requires that, if a sentence is reduced because the offender has undertaken to co-operate (that is, has undertaken to provide future assistance) the court must state the sentence that would have been imposed but for that reduction. In the present case his Honour specified the amount by which the sentence was being reduced for assistance generally, both past assistance provided (for example, in making the two statements to the Federal Police) and future assistance undertaken to be provided (for example, in giving evidence at a trial of a co-offender) His Honour did not separately specify, as required by s21E, the amount the sentence was being reduced because of the future assistance undertaken to be provided. 20 I do not consider that this failure to comply with s21E, of itself, invalidates the sentence imposed by his Honour. However, this court should itself fix an amount for the reduction in sentence by reason of the future assistance undertaken to be provided by the applicant. I will return to this subject after I have dealt with the third ground of appeal.

Ground Three: The sentencing judge erred by failing to give adequate value to the applicant's high level of assistance to law enforcement authorities. 21 It was submitted that the discount of thirty-three and a third percent for assistance allowed by his Honour was inadequate. I do not consider that this submission should be accepted. In Regina v Pang (1999) 105 A Crim R 474, Wood CJ at CL, with the concurrence of the other members of the court, said at paras 13 and 15, omitting citation of authority: "(13) There is no fixed tariff for the reduction that should be given for assistance and so far no guideline judgment has been delivered in this area, however, the discount customarily given in this State for assistance has ranged between twenty and fifty percent of the sentence that would otherwise have been imposed.

(15) Whatever discount is given, the imperative remains that the end result must not be so far out of touch with the circumstances of the particular offence and of the particular offender so as to constitute an affront to community standards." 22 In Pang the Court of Criminal Appeal decided that a discount of twenty-five percent, which had been allowed by the sentencing judge, was insufficient and the Court of Criminal Appeal increased the amount of the discount to fifty percent. It is noteworthy that in Pang the offender had pleaded guilty and no separate discount had been allowed for the plea of guilty. 23 In Regina v El Hani, unreported [2004] NSWCCA 162, Howie J, with the concurrence of the other members of the court, said at paragraph 66: "Prior to Regina v Thomson and Houlton, (2000) 49 NSWLR 383, it was the almost invariable practice for a sentencing judge to indicate that a single discount was being given for both the plea and the assistance. This was because there is a significant overlap between the factors reflected by the plea, contrition, rehabilitation and assistance." 24 His Honour referred to Regina v Gallagher, (1991) 23 NSWLR 220 at 227-228 per Gleeson CJ. 25 At paragraphs 69 and 71 of his judgment in El Hani Howie J said: "(69) The guideline judgment in Thomson and Houlton was not intended to change the established practice in that regard. The guidelines specifically recognised at paragraph 160 that, in cases involving assistance to the authorities, a single combined quantification of a discount for both the plea and assistance will often be appropriate." … "(71) The range of discount normally appropriate for assistance has been held to be twenty percent to fifty percent. The cases usually cited for support for such a range include Cartwright (1989) 17 NSWLR 243 and Regina V Chu (NSWCCA unreported 16 October 1998). In Chu, the Chief Justice noted that English authorities, supporting a range up to two-thirds, had not apparently been followed in the State. It should be noted that Cartwright and Chu were both decided before Thomson and Houlton and were cases where the discount for assistance included the benefit to be received for a plea of guilty". 26 In the present case the sentencing judge allowed a discount of about twenty percent for the plea of guilty and a separate discount of thirty-three and a third percent for the assistance from the applicant, making a combined discount for the plea of guilty and the assistance of more than fifty percent. In the light of the authorities I have referred to, I am unable to accept that the sentencing judge in sentencing the applicant failed to make an adequate allowance for the applicant's assistance. 27 I would reject the third ground of appeal.

Conclusion 28 Having rejected all of the three grounds of appeal, I would propose that, while leave to appeal should be granted, the appeal against sentence should be dismissed, apart from the matter of apportioning the allowance for assistance between past assistance and future assistance undertaken to be provided. 29 There is necessarily some degree of arbitrariness in apportioning between past and future assistance the period of thirteen months allowed by his Honour for assistance generally. 30 As I have already indicated, the applicant made two statements to the Federal Police and we were informed on the hearing of this application that the applicant has already given evidence at a trial of the alleged co-offender Ong. However, at that trial the jury returned verdicts of not guilty on three counts and the jury was unable to agree on the remaining four counts in the indictment. We were informed that there is to be a new trial of Ong, at which it is anticipated that the applicant will give evidence. 31 The applicant provided information in relation to a man named Wickson. Wickson has not yet been charged and it is not known whether the applicant will be required to give evidence at a trial of Wickson. 32 Both counsel for the applicant and counsel for the Crown submitted that the total allowance for assistance should be apportioned, so that the greater part of the amount allowed was attributed to past assistance. It seems to me that a period of three months should be apportioned to future assistance. If a period of three months is apportioned to future assistance, then the sentence that would have been imposed but for the reduction for future assistance would have been two years five months. 33 The orders that I would propose are that leave to appeal should be granted, however, the appeal against sentence should be dismissed, subject to this court holding that the sentence that would have been imposed on the applicant, but for the future assistance which the applicant has undertaken to provide, would have been two years five months. 34 HIDDEN J: I agree with the orders proposed by James J and with his Honour's reasons. 35 BELL J: I also agree.

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