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District Court 7 November 2008

R v Kim, Gwan Hong

[2008] NSWDC 349

Fraud & dishonesty
CRIMINAL LAW SENTENCING KNOWINGLY GIVE FALSE EVIDENCE OT ACC SUBJECTIVE CIRCUMSTANCES REASONABLE LATE PLEA ABSENCE OF CONTRITION.

Citation: R v Kim, Gwan Hong [2008] NSWDC 349
Court: District Court of New South Wales
Date: 7 November 2008
Judge(s): Nicholson SC DCJ

Background

The offender was the director and sole shareholder of a company that imported a shipping container from South Korea, which arrived in Australia on 25 January 2008. Concealed within the container were seventeen cardboard boxes holding 356.2 kilograms of pseudoephedrine, a border-controlled precursor used in the manufacture of amphetamine-based drugs. The Australian Customs Service detected the substance, and the Australian Federal Police (AFP) commenced investigations shortly after.

Police inquiries traced the offender's involvement back to November 2007, when he arranged company registration, leased a warehouse, and made arrangements to receive the container. On 3 March 2008, the AFP intercepted and detained him under the Migration Act as an unlawful non-citizen. He was then summonsed to give evidence before an examiner at the Australian Crime Commission (ACC) between 5 and 7 March 2008.

At that examination, conducted under oath, the offender gave evidence he knew to be false. He claimed he could not recall or did not know details about the container importation, the people who assisted him in establishing the importing company, the purpose of a visit to a freight company's offices, and any residential address he had occupied in Australia since 1987. The indictment particularised four instances of false evidence.

  • What is the appropriate sentence for an offence of knowingly giving false evidence to an ACC examiner, contrary to the Australian Crime Commission Act 2002?
  • How should the objective criminality of this offence be assessed, including the significance of the underlying criminal conduct being investigated?
  • What weight should be given to the offender's subjective circumstances, including his late guilty plea and absence of contrition?

Decision

The court identified the criminality of giving false evidence before a statutory investigative commission as distinct from ordinary dishonesty. Such bodies are granted coercive powers specifically to overcome the sophisticated and secretive methods used by those engaged in serious criminal activity. Obstructing an ACC examination by providing false answers under oath directly undermines the purpose Parliament intended in creating those powers.

The court assessed the objective seriousness of the offence by reference to the gravity of the underlying investigation. The pseudoephedrine importation was itself a highly serious Commonwealth offence. The offender's false evidence was designed to shield himself and unidentified associates from detection, and had the potential to permanently obstruct the investigation into what was, on any view, major organised criminal conduct.

The court surveyed fifteen comparable decisions from courts across Australia, including cases involving refusal to answer questions and knowingly false evidence before the ACC, NCA, ICAC, and the Police Integrity Commission. Sentences in those cases varied considerably, reflecting differing circumstances. The court found the offender's subjective circumstances to be reasonable but noted that his guilty plea was late and that he had shown no genuine contrition.

Weighing all factors, the court determined that a sentence of two and a half years imprisonment was appropriate, with the offender to be released after serving eight months pursuant to a recognizance release order. The sentence was backdated to 25 March 2008, the date from which the offender had been in custody.

Orders Made

  • Convicted of knowingly giving false evidence before an ACC examiner.
  • Sentenced to 2 years and 6 months imprisonment, commencing 25 March 2008.
  • Released pursuant to a recognizance release order after serving 8 months.

Key Takeaways

  • The District Court confirmed that knowingly giving false evidence before a statutory investigative commission such as the ACC attracts serious criminal consequences, with a maximum penalty of five years imprisonment under the Australian Crime Commission Act 2002.
  • A conviction for this offence is treated as an interference with the coercive investigative powers that Parliament specifically enacted to combat sophisticated organised crime, giving the offence a gravity beyond ordinary dishonesty.
  • The seriousness of the underlying conduct being investigated is a relevant factor in assessing objective criminality: where false evidence is designed to obstruct inquiry into major drug importation, that context increases the weight of the offending.
  • A late guilty plea, combined with an absence of genuine contrition, will limit the sentencing discount otherwise available for a plea of guilty.
  • Comparative sentencing data drawn from multiple Australian jurisdictions showed significant variation in outcomes for related ACC obstruction offences, reflecting the fact that sentences in this area are highly fact-specific.

Legislation and Cases Referenced

Legislation
- Australian Crime Commission Act 2002 (Cth)
- Migration Act (Cth)
- Crimes Act 1914 (Cth)

Cases
- R v Aristodemou (unreported, NSWCCA, 30 June 1994)
- R v Einfeld [2008] NSWCCA 215
- R v Daniel James Rodd (Qld Supreme Court, per Wilson J, 27 June 2008)
- 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 May 2007)
- R v Jim Kafritsas (Victorian County Court, per Dyggan J, 13 April 2007)
- R v Michael Joseph Hood (NSW District Court, per Ander DCJ, 12 July 2007)
- R v Mario D'Alessandro (NSW District Court, per Ander DCJ, 30 January 2007)
- Cth DPP v Marc Quaid (WA Magistrates Court, per Magistrate Malley, 24 July 2006)
- R v Delmardoros (WA District Court, per Groves DCJ, 21 March 2006)
- R v Daniel Luke Pelham (Tas Supreme Court, 27 October 2005)
- R v Kieran Peter Kordic (Qld District Court, per Judge Samios, 29 July 2005)
- R v Walter Allan Hughes (Qld District Court, per Trafford-Walker J, 22 April 2004)
- Barnes v Boulton [2004] FCA 1219
- R v Irwin [1999] NSWCCA 361
- R v Steven Leslie Franklin-Bull (Qld District Court, per Judge O'Brien, 13 August 1999)