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Court of Criminal Appeal 3 June 2015

BAE, Kangmin v R

[2015] NSWCCA 133

Drugs
CRIMINAL LAW APPLICATION TO APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: BAE, Kangmin v R [2015] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 3 June 2015
Judge(s): Hoeben CJ at CL, Hall J, Wilson J

Background

The applicant, a Korean national aged 34, pleaded guilty to five counts of aiding and abetting the importation of border controlled drugs into Australia. The drugs included commercial quantities of cocaine and methamphetamine, and a marketable quantity of heroin, all imported from Canada via DHL courier shipments between October 2009 and April 2010. The consignments were concealed within cardboard boxes described as containing car wheel rims.

The applicant's role was to coordinate the receipt, collection, and storage of the drug shipments, and to arrange their onward transfer for distribution. Evidence established that he procured third parties, at least some of whom appeared to be innocent of any knowledge of the drugs, to receive consignments at their addresses. He was sentenced in the District Court on 4 April 2013 by Hock DCJ.

The applicant sought leave to appeal against the sentences imposed, raising several grounds of error in the sentencing judge's approach.

  • Whether the sentencing judge erred in taking into account the applicant's use of innocent agents as a factor in assessing his role, given the absence of direct evidence
  • Whether the sentencing judge erred in accumulating the individual sentences to the degree she did, having regard to the principle of totality
  • Whether the sentencing judge's references to the offences not being "isolated" amounted to double counting, by using that factor in both the assessment of objective seriousness and the degree of accumulation
  • Whether the sentencing judge's reference to the offences not being "isolated" constituted impermissible reliance on uncharged conduct
  • Whether the overall sentence was manifestly excessive

Decision

Use of innocent agents: The Court of Criminal Appeal found it was open to the sentencing judge to conclude, on the available evidence, that innocent agents had been used. The evidence showed that consignments were addressed to individuals at various Sydney locations, and that the applicant had procured those persons to receive the boxes. The Court rejected the submission that there was no sufficient evidentiary basis for that finding.

Accumulation of sentences: The Court held that the five offences, though part of a broader ongoing drug importation scheme, were nonetheless separate and discrete acts of criminality. The mere fact that the offences occurred within a common temporal and operational context did not merge them into a single course of conduct for sentencing purposes. The sentencing judge did not err in accumulating the sentences in the manner she did.

Double counting and uncharged conduct: The Court rejected both the double counting argument and the uncharged conduct argument. The references by the sentencing judge to the offences not being "isolated" were directed to the other offences on the indictment, not to any conduct beyond what was charged. No impermissible use of uncharged conduct was established, and the relevant factor had not been applied twice in a way that inflated the sentence.

Manifest excess: The Court declined to find the sentence manifestly excessive. Hall J noted that reliance on the categories set out in DPP v De La Rosa is of limited assistance and that decision is not a guideline judgment. The Court considered comparative sentences but concluded the overall effective sentence of 20 years, with a non-parole period of 12 years, was within an appropriate range having regard to the objective seriousness of the offences, the applicant's subjective circumstances, and the totality of his criminality across five counts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Separate discrete drug importation offences that form part of a broader scheme may nonetheless be accumulated, as the temporal or operational connection between them does not transform them into a single act of criminality.
  • A sentencing court may draw a factual finding that innocent agents were used on the basis of circumstantial evidence, including evidence of consignment addresses and the roles of recipients, without the need for direct proof.
  • No double counting arises where a sentencing judge's reference to the non-isolated nature of offending reflects the other charges on the same indictment rather than applying the same factor twice to inflate the sentence.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that DPP v De La Rosa (2010) 79 NSWLR 1 is not a guideline judgment and that its categories provide only limited assistance in comparative sentencing analysis.
  • Where a sentencing judge addresses objective seriousness, subjective factors, and totality and makes appropriate provision for accumulation, an appellate court will not readily interfere with the resulting sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 307.1(1), 307.2(1), 11.2(1)
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW)

Cases
- DPP v De La Rosa (2010) 79 NSWLR 1
- Lowndes v The Queen (1999) 195 CLR 665
- Kentwell v The Queen [2014] HCA 37
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- Thuong Nguyen v R [2012] NSWCCA 184
- Sabongi v R [2015] NSWCCA 25
- Sabra v R [2015] NSWCCA 38