AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 23 July 2021

R v Choi (No 10)

[2021] NSWSC 891

Fraud & dishonesty
SENTENCING SERIOUSNESS OF OFFENCE RELEVANCE OF MOTIVATION AGGREGATE SENTENCE IMPOSED NO SPECIFICATION OF NON CUSTODY

Citation: R v Choi (No 10) [2021] NSWSC 891
Court: Supreme Court of New South Wales
Date: 23 July 2021
Judge(s): Adamson J

Background

The offender, a South Korean-born civil engineer who migrated to Australia in 1987, pleaded guilty to two offences involving the provision of brokering services that contravened international sanctions imposed on the Democratic People's Republic of Korea (North Korea). The conduct occurred between August and December 2017, before his arrest on 16 December 2017.

The first count (under the Charter of the United Nations Act 1945 (Cth)) involved three particulars: brokering the sale of arms and related materiel from North Korea, brokering the sale of tactical inertial measurement units (a type of military equipment) from North Korea, and brokering the sale of refined petroleum products to North Korea. The second count (under the Autonomous Sanctions Act 2011 (Cth)) concerned brokering the sale of coal from North Korea to Indonesian entities. A further offence relating to the brokering of pig iron sales from North Korea to South Korea was admitted and taken into account on sentence.

The offender had been held in custody from his arrest until he was granted bail in November 2020, and thereafter subject to strict bail conditions that the court characterised as amounting to house arrest.

  • What was the appropriate sentence for offences of providing sanctioned brokering services to North Korean entities, having regard to the seriousness of the conduct and the broad range of conduct covered by the relevant offences?
  • What weight should be given to the offender's dual motivation: financial gain and a stated desire to assist the people of North Korea adversely affected by international sanctions?
  • How should the lengthy period of pre-sentence custody (including time on remand and time on restrictive bail conditions) be treated when calculating and backdating the sentence?
  • Whether it was appropriate to decline to set a non-parole period where the total sentence had already expired by the time of sentencing.

Decision

Adamson J accepted that the offending was serious. The transactions involved arms, military equipment, coal, pig iron, and petroleum products, all subject to UN and autonomous sanctions designed to pressure the North Korean government into compliance with international law. The conduct was deliberate, sustained over several months, and motivated by a combination of personal financial gain and a professed desire to undermine sanctions the offender believed harmed ordinary North Koreans. The court accepted the latter motive had some mitigating value, but it did not displace the need for general deterrence.

In assessing the offender's credibility, Adamson J found him substantially honest but unreliable in some respects. The offender exhibited a tendency toward grandiosity, including falsely claiming to have met Kim Jong-un and overstating his professional standing and success. The court rejected his explanation that uncontrolled diabetes had caused these exaggerations, finding the pattern of grandiose statements predated and extended beyond any period of illness.

The court imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a provision confirmed to be available for Commonwealth offences. The sentence was backdated to 16 December 2017, the date of the offender's arrest. Taking into account the extended period on remand and the quasi-custodial bail conditions, and applying a 5% discount for the guilty pleas, the aggregate term was set at 3 years and 6 months.

Because the entire sentence expired before the sentencing date, Adamson J declined to fix a non-parole period or make a recognizance release order. The court noted that doing so would have been futile, and provided the reasons for that course as required by s 19AB of the Crimes Act 1914 (Cth).

Orders Made

  • The offender was convicted of counts 1 and 2 on the indictment.
  • An aggregate sentence of imprisonment for a fixed term of 3 years and 6 months was imposed, commencing 16 December 2017 and expiring 15 June 2021.
  • No non-parole period was fixed, as the total sentence had already expired at the time of sentencing.
  • The offender's bail conditions were discharged upon the sentence expiring.

Key Takeaways

  • Brokering prohibited transactions involving arms, military equipment, and commodities in breach of UN and autonomous sanctions constitutes serious criminal conduct warranting a custodial sentence, with general deterrence a significant sentencing consideration.
  • A mixed motivation combining personal financial gain with a humanitarian rationale (assisting those harmed by sanctions) may carry some mitigating weight, but does not override the objective gravity of deliberately undermining internationally imposed sanctions.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence is available for Commonwealth offences, consistent with authority from the Court of Criminal Appeal in DPP (Cth) v Beattie and the High Court in Putland v The Queen.
  • Where a total sentence has fully expired before the sentencing date, s 19AB of the Crimes Act 1914 (Cth) requires a court to give reasons for declining to set a non-parole period, but fixing one would be futile and is not required.
  • Strict bail conditions amounting to effective house arrest may be treated as quasi-custody and taken into account when backdating the commencement of a sentence to the date of first arrest.

Legislation and Cases Referenced

Legislation
- Charter of the United Nations Act 1945 (Cth), s 27
- Charter of the United Nations (Sanctions – Democratic People's Republic of Korea) Regulations 2008 (Cth), regs 4, 5, 11
- Autonomous Sanctions Act 2011 (Cth), ss 6, 10, 11, 16
- Autonomous Sanctions Regulations 2011 (Cth), reg 13
- Crimes Act 1914 (Cth), ss 16A, 16AB, 16BA, 16E, 16F, 17A, 19AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 47, 53A
- Evidence Act 1995 (NSW), s 191

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556
- Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- R v De Leeuw [2015] NSWCCA 183