Bae v R

[2020] NSWCCA 35

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Bae v R [2020] NSWCCA 35
Hearing dates:	6 February 2020
Date of orders:	11 March 2020
Decision date:	11 March 2020
Before:	Bell P at [1] Walton J at [2] Johnson J at [3]
Decision:	The sentences imposed upon the Appellant at the Sydney District Court on 4 April 2013 are quashed. In their place, the Appellant is sentenced to the following terms of imprisonment: (i)   for Count 3 - an offence of aiding and abetting importation of a marketable quantity of heroin, imprisonment for four years and nine months commencing on 19 April 2010 and expiring on 18 January 2015; (ii)   for Count 1 - an offence of aiding and abetting importation of a commercial quantity of cocaine, imprisonment for nine years commencing on 19 April 2012 and expiring on 18 April 2021; (iii)   for Count 2 - an offence of aiding and abetting importation of a commercial quantity of methamphetamine, imprisonment for nine years commencing on 19 October 2014 and expiring on 18 October 2023; (iv)   for Count 4 - an offence of aiding and abetting importation of a commercial quantity of methamphetamine, imprisonment for nine years commencing on 19 October 2017 and expiring on 18 October 2026; (v)   for Count 5 - an offence of aiding and abetting importation of a commercial quantity of cocaine, imprisonment for nine years commencing on 19 October 2019 and expiring on 18 October 2028; (vi)   as against a head sentence of imprisonment of 18 years and six months, there is a single non-parole period of 11 years commencing on 19 April 2010 and expiring on 18 April 2021, with a balance of term of seven years and six months commencing on 19 April 2021 and expiring on 18 October 2028. The Appellant will be eligible for release on parole on 19 April 2021.
Catchwords:	APPEAL – referral to Court of Criminal Appeal under s.79(1)(b) Crimes (Appeal and Review) Act 2001 - offences of aiding and abetting importations of commercial quantities of cocaine and methamphetamine and a marketable quantity of heroin – appellant sentenced in 2013 - sentencing Judge excluded utilitarian value of appellant’s pleas of guilty from consideration in calculating discount consistent with the law prior to Xiao v R – Xiao v R error established - consideration of factors relevant to utilitarian value of guilty pleas - guidance provided by the principles in R v Borkowski - appellant with stronger subjective case on resentence in 2020 - finding that appellant now had good prospects of rehabilitation and a low risk of reoffending - lesser sentences warranted – applicant resentenced
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code (Cth)
Cases Cited:	Application of Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review Act 2001 (NSW) [2019] NSWSC 1413 Baden v R [2020] NSWCCA 23 Bae v R [2015] NSWCCA 133 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Carlton v R [2014] NSWCCA 14 Diaz v R [2019] NSWCCA 216 Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Singh v R [2018] NSWCCA 60 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Texts Cited:	---
Category:	Principal judgment
Parties:	Kangmin Bae (Appellant) Regina (Respondent)
Representation:	Counsel: Mr T Anderson (Appellant) Mr K Ginges (Respondent)   Solicitors: Legal Aid NSW (Appellant) Commonwealth Director for Public Prosecutions (Respondent)
File Number(s):	2010/415361
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 4 April 2013 Before: Her Honour Judge Hock File Number(s): 2010/415361

Judgment

1. BELL P: I have had the benefit of reading in draft the reasons of Johnson J.  I agree with those reasons and with his Honour’s proposed orders.

2. WALTON J: I agree with Johnson J.

3. JOHNSON J: Following a referral to this Court under s.79(1)(b) Crimes (Appeal and Review) Act 2001, the Appellant, Kangmin Bae, appeals with respect to sentences imposed in the Sydney District Court on 4 April 2013 for a number of serious drug importation offences under the Criminal Code (Cth) (“the Code”).

The Sentences Under Appeal

4. On 12 January 2012, the Appellant entered pleas of guilty to four offences contrary to s.307.1(1) and s.11.2(1) of the Code and an offence contrary to s.307.2(1) and s.11.2(1) of the Code.

5. On 4 April 2013, her Honour Judge Hock imposed sentences which were partially accumulated, with the overall effective sentence comprising imprisonment for 20 years with a non-parole period of 12 years. The overall sentence dated from 19 April 2010 with the non-parole period expiring on 18 April 2022.

6. The following table summarises the sentences imposed for each offence:

Count	Offence	Sentence
Count 1	Aid and abet the importation of a commercial quantity of cocaine (3.713 kg (pure))	10 years commencing 19 April 2012 (expiry 18 April 2022)
Count 2	Aid and abet the importation of a commercial quantity of methamphetamine (2.266 kg (pure))	10 years commencing 19 April 2015 (expiry 18 April 2025)
Count 3	Aid and abet the importation of a marketable quantity of heroin (0.65 kg (pure))	5 years commencing 19 April 2010 (expiry 18 April 2015)
Count 4	Aid and abet the importation of a commercial quantity of methamphetamine (2.243 kg (pure))	10 years commencing 19 April 2018 (expiry 18 April 2028)
Count 5	Aid and abet the importation of a commercial quantity of cocaine (4.021 kg (pure))	10 years commencing 19 April 2020 (expiry 18 April 2030)

7. The Appellant appealed to this Court against sentence with the Court granting leave to appeal against sentence, but dismissing the appeal on 3 June 2015: Bae v R [2015] NSWCCA 133.

Referral to Court of Criminal Appeal

8. On 17 October 2019, R A Hulme J referred the matter to this Court upon the basis that there appeared to be a doubt or question as to the sentences passed upon the Appellant with respect to the sentencing Judge’s approach to the Appellant’s pleas of guilty in light of the decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4: Application of Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review Act 2001 (NSW) [2019] NSWSC 1413.

9. As the appeal comes before this Court by way of reference under Part 7 of the Crimes (Appeal and Review) Act 2001, the Appellant is not required to seek an extension of time or leave to appeal against sentence: Carlton v R [2014] NSWCCA 14 at [9]-[39].

10. The outcome of the earlier sentence appeal, dismissed by the Court on 3 June 2015, does not bear upon the present appeal. This Court should note that the 2015 Court rejected grounds of appeal which asserted error in the extent of accumulation of sentences and that the overall sentences were manifestly excessive. Those arguments are not repeated here. The present appeal is confined to the issue which gave rise to the referral.

The Ground of Appeal

11. By Notice of Appeal filed on 23 October 2019, the Appellant relies upon the following ground of appeal:

“That in determining the appropriate discount to reflect the value of the appellant’s plea of guilty in accordance with section 16A(2)(g) Crimes Act 1914 (Cth), her Honour did not have regard to the utilitarian value of the Appellant’s plea of guilty.”

12. The Crown concedes that error occurred in the sentencing of the Appellant in accordance with the ground of appeal. This concession is correct and I proceed upon the basis that error has been established. Accordingly, it will be necessary for the Court to exercise its independent sentencing discretion for the purpose of determining whether lesser sentences are warranted in accordance with s.6(3) Criminal Appeal Act 1912: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].

13. In undertaking that task, the Court should take into account all relevant matters, including evidence of the Appellant’s progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

Facts of Offences

14. The Crown case on sentence was set out in an Agreed Statement of Facts.

15. The Appellant and his then co-accused, Sunho Han (“Han”) and Deuk Kyu Yoon (“Yoon”), were indicted on a total of eight counts under the Code arising out of the importation of various quantities of border controlled drugs into Australia. The Appellant was charged with five counts (as set out at [6] above), Han with one count and Yoon with two counts.

16. The Appellant, a South Korean passport holder, entered Australia from Canada on 11 December 2009 in furtherance of a scheme to import border controlled drugs from Canada in boxes shipped by DHL. His role in the enterprise was to co-ordinate the receipt and collection of the boxes and their safe storage and the subsequent transfer of the drugs for distribution and sale.

17. Between 23 October 2009 and 8 April 2010, 64 boxes were consigned by DHL in Toronto, Canada in 24 different consignments to 10 different addresses in Sydney to which the Appellant had direct or indirect links. The contents of most of the boxes were described in shipping documents as motor vehicle wheel rims. Some were said to contain clothing, books and personal effects. Many of the consignment documents nominated “Min” or “Jake” (names by which the Appellant was known) as the receiver's contact.

18. The Appellant lived at an address in Strathfield for a period of time beginning shortly after his arrival in Australia. Four consignments totalling 10 boxes were sent to this address. The Appellant moved to 66/230 Elizabeth Street, Surry Hills in February 2010. Two boxes in one consignment were sent to this address. The Appellant rented a storage unit in Burwood for the safe storage of the consignments and drugs concealed within them.

19. The Appellant procured Han and Yoon to receive consignments at their respective addresses in Bunn Street, Pyrmont and Murray Street, Pyrmont. He also procured a person named Tjin Ow (“Ow”) to receive consignments at his address in Killara. Four consignments comprising 11 boxes were shipped to Han's address. Three consignments comprising 11 boxes were shipped to Ow's address. Six boxes were shipped to Yoon's address. Han and Ow helped transfer some boxes into the Appellant's possession and Ow telephoned DHL about the consignment addressed to Yoon's address at the request of the Appellant.

20. Boxes were also consigned to other addresses. These included the office premises of the Korean Student Agency at 3/363 Pitt Street, Sydney. Seven boxes in three consignments were delivered to this address. Han and Ow helped the Appellant shift these boxes to the Appellant's premises in Surry Hills.

21. In summary, 64 boxes were despatched from Canada and imported into Australia during the period 23 October 2009 to 8 April 2010. In total, 45 boxes were recovered at various locations. Eighteen boxes contained border controlled drugs concealed between the cardboard surfaces of the two inner flaps comprising the base of the box. The two inner cardboard flaps in the base of the 27 remaining recovered boxes had been cut off and removed. A number of intact flaps that had been cut off were found to contain narcotic substances concealed between the surfaces of the cardboard. Several loose bags containing drugs were also found at the Appellant’s Elizabeth Street, Surry Hills apartment.

22. A total of 21 of the 45 recovered boxes were found by Australian Federal Police (“AFP”) agents during a search of the Appellant's premises at Surry Hills on 19 April 2010.

23. The drug seizures underpinning the five counts against the Appellant in the indictment were as follows:

1. Count 1 - On 19 April 2010, AFP agents executed a search warrant at the Appellant's Surry Hills premises and found six boxes which had within the flaps at the base of each a total of 5.909 kg of cocaine (3.713 kg pure).

2. Count 2 - On 19 April 2010, whilst executing the search warrant at the Appellant's Surry Hills premises, AFP agents found within the flaps of two boxes, as well as in some loose bags, a total of 2.945 kg of methamphetamine (2.266 kg pure).

3. Count 3 - On 19 April 2010, whilst executing the search warrant at the Appellant's Surry Hills premises, AFP agents found within some loose cardboard flaps and loose bags a total of 1.94 kg of heroin (0.65 kg pure).

4. Count 4 - On 16 April 2010, AFP agents executing a search warrant at Ban's Bunn Street, Pyrmont premises found four boxes which had been delivered to that address on 1 March 2010. The cardboard flaps of the boxes concealed a total of 2.926 kg of methamphetamine (2.243 kg pure).

5. Count 5 - On 13 April 2010, Customs officers found within the cardboard flaps of the six boxes consigned to Yoon's address, a total of 5.849 kg of cocaine (4.021 kg pure). A simulated delivery of these items was effected by AFP agents to Yoon's Murray Street, Pyrmont address on 16 April 2010.

24. On sentence, the Crown relied upon the evidence of the finding of the 27 boxes from which the flaps had been removed and the sending of the additional 19 unrecovered boxes (in which it could be inferred drugs were imported) to show that the conduct forming the subject of the charges in the indictment was not isolated, but was part of a well-organised scheme for the importation of illegal drugs into Australia.

25. On the morning of 19 April 2010, the Appellant and his wife left their apartment in Sydney and travelled to the Sydney International Airport. The Appellant purchased two one-way tickets for a flight to Seoul departing that day. After boarding, the Appellant was escorted from the aircraft and placed under arrest by AFP agents. His wife was allowed to continue on the flight to Seoul.

26. The Appellant remained in custody thereafter and his sentence commenced on 19 April 2010, the date of his arrest.

Approach to the Appellant’s Pleas of Guilty on Sentence at the Original Sentencing Hearing

27. It is appropriate to consider the evidence before the sentencing Judge concerning the Appellant’s pleas of guilty and the submissions made at the sentencing hearing in 2013 together with her Honour’s conclusions on that issue.

28. The Appellant was arrested on 19 April 2010 and was committed for trial to the District Court on 4 May 2011.

29. A trial date was fixed in the District Court commencing on 24 October 2011. In September 2011, the Appellant had a change in legal representation with Martin Ricci, solicitor, commencing to represent the Appellant.

30. On the application of the Appellant, the 24 October 2011 trial was vacated and relisted to commence on 23 January 2012. An affidavit of Mr Ricci sworn 15 February 2013 was tendered for the Appellant at the District Court sentencing hearing. Mr Ricci stated that he had been asked to provide advice to the Appellant on 10 September 2011 and that he thereafter conferred with the Appellant. Mr Ricci formed the view that there was a strong Crown case and advised the Appellant accordingly so that plea negotiations commenced on 11 October 2011. On 21 October 2011, the Crown rejected a plea offer made on behalf of the Appellant. On that day, a defence application was made to vacate the trial scheduled to commence on 24 October 2011, a course which was acceded to by the Court. On 12 January 2012, the Appellant entered pleas of guilty to the counts on the indictment and an Agreed Statement of Facts was tendered to the Court.

31. The proceedings were further adjourned and, in due course, the sentencing hearing commenced before her Honour Judge Hock on 26 October 2012. On the Appellant’s application, the proceedings were adjourned part-heard to 15 February 2013.

32. In the course of the resumed sentencing hearing on 15 February 2013, the following exchange took place between Senior Counsel then appearing for the Appellant and the sentencing Judge concerning the Appellant’s pleas of guilty (T11-13, 15 February 2013) (emphasis added):

“TURNBULL: ... Your Honour the question of the plea of guilty. There is a history of the matter there set out at p 2. It is supplemented by Mr Ricci's affidavit. Unfortunately, your Honour, it is not uncommon for people who are unfamiliar with the Australian legal system where English is not their first language, who are plucked from the lifestyle that he was enjoying at the time, indeed from a plane within minutes of departure, and placed into custody to be assisted by people who may not have the same expertise in the criminal law as they have facility in speaking the native language. It is a Federal offence and Cameron is the relevant authority.

But, your Honour, at first blush it doesn't look good. He has waited to the last minute and has sought a trial adjournment and then he has waited until the last minute, although the trial adjournment was only for a matter of three months all-up and then he has entered his pleas. But the willingness to facilitate the course of justice has to be looked at through the understanding the individual has of the system that he is dealing with or she is dealing with, the benefits which are afforded, the capacity to understand the advice, the capacity to get the advice. It might well be your Honour's view that he did ultimately express that willingness to facilitate the course of justice when he had explained to him not only the concept of aid and abet and the offences, but also the matters in the brief. You will see there that Mr Ricci comments about his own perception of this fellow's understanding and makes a remark about the fact he didn't even have the entire brief. At the end of the day there wasn't a trial. So there is a utilitarian benefit, if I can use that rather harsh term.

Your Honour might also think that he didn't chance his arm irrespective, that he came to a point where he did understand the situation. Now of course always there is the consideration of look, it's an overwhelming case, really what kind of benefit can flow beyond just a mere acknowledgement of utilitarianism --

HER HONOUR: Well, the Commonwealth offence it isn't for the utilitarian value so - and I might just interrupt you here and ask the Crown, it might shorten matters. I am assuming, possibly wrongly, Mr Crown that you concede that the offender should get some discount for his willingness to facilitate the course of justice --

ROSER: Yes, yes.

HER HONOUR: What would you say?

ROSER: Minimal.

HER HONOUR: I would say on Mr Ricci’s --

ROSER: On a historical basis there was a trial set, which had to be vacated on the application of the defendant, and it was a long time before a plea was entered. It was only when he was forced into the situation where he was told that the trial was to commence in January that he actually pleaded. Now he was legally represented. There has been no material placed before you in relation to the competence or otherwise of the legal representatives, and he had legal representatives all along of people that spoke his own language over a long period of time and so the plea, the facilitation was because there was no trial. But there was a delay before a plea was entered.

HER HONOUR: I am working really on Mr Ricci’s affidavit. I can't say that I am familiar with the firm that was briefed, that's not to say I am familiar with every firm of solicitors in Sydney, but most of the criminal ones I am reasonably familiar with - when I say criminal ones, I mean who deal with criminal matters. I am somewhat sympathetic to the offender's case as set out by Mr Ricci in that ultimately - and I am just looking for the timetable, it is in your written submissions.   

ROSER: I have set out in the timetable my understanding of when the arrest and then --

HER HONOUR: There was obviously a huge delay before it got to this Court. But in the District Court the matter was set down for 24 October 2011. I can see that the trial was vacated and listed again. But before that date he did plead guilty --

ROSER: Yes.

HER HONOUR: When did Mr Ricci come into the matter?

TURNBULL: A month before the trial date. As your Honour will see he was just briefed with to advise initially.

HER HONOUR: Yes, where it seems nothing much was done, in fact he didn't even have the brief.

TURNBULL: No.

HER HONOUR: Mind you, the solicitors should have --

ROSER: Well, his solicitor would have had it. Your Honour may see from the notes from the Court file of the person who appeared for him because I understand that he appeared on all the mentions --

HER HONOUR: Mr Kim.

ROSER: Mr Kim.

HER HONOUR: Yes, there is an authority to retrieve the brief from Mr Kim and get it to the Law Practice --

ROSER: My understanding, and I can [get] instructions if necessary, but I think when Mr Ricci came into it things moved along quite quickly.

HER HONOUR: Yes. But this is also a reflection of an experienced solicitor in criminal law, … but I don't think I can visit Mr Kim, with great respect to him, whatever he did or didn't do, I don't know whether I can visit that onto the offender given his language difficulties and what is set out in the affidavit of Mr Ricci. But I would have thought minimal might be a bit harsh is what I'm trying to get you to agree with Mr Crown --

ROSER: Well, your Honour, it is all very hard to agree with these things. I will get some instructions in relation to that your Honour. Is your Honour looking at a percentage within a range or-

HER HONOUR: Well, I couldn't possibly give the offender twenty-five per cent in my view --

TURNBULL: I wouldn't seek it.

HER HONOUR: Between fifteen and twenty I would have thought was appropriate.

ROSER: I would have thought that fifteen would be the maximum.

HER HONOUR: Well, let me consider all the material. Are you asking for more than 15 --

TURNBULL: I would ask for seventeen and a half percent, your Honour, and it is only because it is in percentage --

HER HONOUR: Well, that just makes the maths so difficult.

ROSER: I will go for twelve and a half, your Honour, and fifteen could be --

HER HONOUR: All right, leave it to me.”

33. This extract from the transcript assists an understanding as to how the sentencing Judge came to calculate the discount allowed to the Appellant. No additional evidence was relied upon in this Court concerning this issue. The affidavit of Mr Ricci once again provided the foundation for submissions made in this Court.

34. In the course of sentencing remarks delivered on 4 April 2013, her Honour explained why the Appellant was to receive a 15% discount on sentence (ROS16):

“There was a considerable delay before the pleas were entered. Some explanation for that delay is set out in the affidavit of the offender's present solicitor, exhibit 2, who was not representing him initially.

In the circumstances, I have reduced each individual sentence and the effective overall sentence by 15%. It was conceded by the Crown Prosecutor that this was an appropriate reduction.

The pleas indicate an acceptance of responsibility and a willingness to facilitate the course of justice.”

35. In referring the matter to this Court, R A Hulme J noted the statement by the sentencing Judge during submissions on 15 February 2013 and her Honour’s approach to the Appellant’s pleas of guilty in the sentencing remarks. It is clear that her Honour, consistent with the law prior to Xiao v R, excluded the utilitarian value of the Appellant’s pleas of guilty from consideration in calculating the discount. That said, factors relevant to an assessment of utilitarian value of guilty pleas were taken into account in the decision to allow a 15% discount, albeit with a different label. As will be seen, there are overlapping issues at work in this area.

36. As noted earlier, the Crown concedes appropriately that there was a Xiao v R error in that the sentencing Judge did not take into account the utilitarian value of the Appellant’s pleas of guilty on sentence so that a relevant factor was excluded from consideration.

Objective Seriousness of the Offences

37. The sentencing Judge made findings concerning the objective seriousness of the offences. Those findings are not challenged in this Court and remain the appropriate findings to make concerning the offences themselves and issues of specific and general deterrence. Her Honour said (ROS13-14):

“Two of the factors relevant to the assessment of the objective seriousness of each offence are the weight of the drug imported and the role the offender played.

As to the former, the commercial quantity for cocaine is two kilograms. The pure quantity imported in Count 1 was approaching twice that threshold and in Count 5 just over twice.

The commercial quantities of methamphetamine is 0.75 kilograms. The quantity of pure methamphetamine in Counts 2 and 4 is three times the threshold.

The marketable quantity for heroin is two grams.

The pure quantity of heroin imported was 650 grams, namely, 325 times the threshold marketable quantity. This is well below the threshold for the commercial quantity of 1.5 kilograms but approaching the midpoint between the marketable and the commercial quantity.

As to the offender's role, as outlined in the facts, he played a very important role in these importations of border controlled drugs into Australia. While he was not the overall principal of this operation, he was the person trusted to coordinate the arrival and receipt of these drugs in Sydney. His part in the operation required a considerable degree of planning and preparation and included the offender approaching completely innocent people to provide their addresses for receipt of the boxes.

The counts on the indictment are not isolated but instances of a well organised scheme for importation of these three different illegal substances into Australia. The total pure weight of the drugs recovered is 12.893 kilograms, almost 13 kilos.

As the facts outline, unfortunately most of these consignments were successfully imported into Australia. While there is no evidence of financial reward, the offender was clearly involved for considerable financial gain. The sentences to be imposed must deter foreign nationals in general and this offender in particular, from engaging in offences such as these.”

Further Evidence Concerning the Appellant’s Prospects of Rehabilitation and Risk of Reoffending

38. For the purpose of resentencing, the Appellant relies upon the affidavit of his solicitor, Suzanne Tezjan Knowles, affirmed 7 November 2019 and the Appellant’s affidavit affirmed 5 November 2019.

39. Ms Knowles’ affidavit attached documents which demonstrate that the Appellant has completed a number of vocational and rehabilitation programs in custody between 2010 and 2018. A report of the Serious Offenders Review Council dated 15 May 2019 verified the Appellant’s significant progress in custody, leading to a reduced security classification and a placement at the Outer Metropolitan Multi-Purpose Correctional Centre (“OMMPCC”) at Windsor. The Appellant has two minor disciplinary matters on his correctional record in 2013 and 2018.

40. A report of Mr Tim Watson-Munro, psychologist, dated 14 February 2013 was tendered in the defence case on sentence. The Appellant did not give evidence at the sentencing hearing in 2013. However, the sentencing Judge accepted that the Appellant was a heavy gambler who abused alcohol as well.

41. The Appellant had no prior criminal convictions in South Korea or Australia at the time of these offences.

42. The Appellant is now 39 years old. His affidavit recounts the progress he has made in the decade during which he has been in custody. He has been working as a general hand at the Wildlife Centre attached to the OMMPCC. He works in a trusted position caring for kangaroos and emus housed at the Wildlife Centre.

43. The Appellant expresses remorse for his offences and states that he has had an extended opportunity to reflect upon his offending and its adverse effects on others, including those using drugs and the shame he has brought on his family. The Appellant had limited English skills when he came into custody, but has learned English and is now bilingual, a skill which he expects to help him find meaningful work when he has an opportunity to return to South Korea.

44. The Appellant married in 2008. His wife was with him in Australia, but she returned to South Korea at the time of his arrest in April 2010. She has since divorced the Appellant. There were no children of the marriage.

45. The Appellant is in good health and expects that he will be deported to South Korea when the time comes for his release. He states that his family is supportive and he will return to South Korea to live with them after his deportation.

46. The sentencing Judge did not make a finding as to the Appellant’s prospects of rehabilitation and risk of reoffending when he was sentenced on 4 April 2013. The lengthy period in custody before the Appellant could be eligible for release meant that any assessment of his prospects of rehabilitation would have required a predictive assessment as to his position many years later.

47. The Crown acknowledges that the evidence on this appeal is such that the Court is able to make a finding that the Appellant has good prospects of rehabilitation and a low risk of reoffending. A finding to that effect should be made.

Assessing the Utilitarian Value of the Appellant’s Pleas of Guilty

48. The Appellant was sentenced long before the 2018 decision of this Court in Xiao v R. The Court accepted in that decision that the utilitarian value of a plea of guilty can be taken into account on sentence for Commonwealth offences under s.16A(2)(g) Crimes Act 1914 (Cth). Prior to that decision, it had been the prevailing view in New South Wales that the utilitarian value of a plea could not of itself be taken into account in mitigation of sentence in respect of Commonwealth offences.

49. In Baden v R [2020] NSWCCA 23, Bell P (Walton J and myself agreeing) said at [15]-[16]:

“15   The Xiao Court, comprising Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ, after a review of authorities which had either taken a different view to Tyler [(2007) 173 A Crim R 458; [2007] NSWCCA 247] or questioned its correctness, relevantly held at [278] that:

‘…in sentencing proceedings governed by s 16A [of the Crimes Act 1914 (Cth)], a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed.’

16   In Cameron [(2002) 209 CLR 339; [2002] HCA 6], Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused’s ‘willingness to facilitate the course of justice’ which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount.”

50. In Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57, Beazley P (Bathurst CJ, Hoeben CJ at CL, McCallum and Bellew JJ agreeing) adopted the reasoning applicable to State offences in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, whilst noting the need to guard against the application of a “norm” to Commonwealth offences. Beazley P said at [81]-[86]:

“81   The appellant in this case pleaded guilty and is thus entitled to some discount for his plea. The utilitarian value of a guilty plea depends primarily upon the timing of the plea. In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) stated at [152]-[154]:

‘[152]   In my opinion, the appropriate range for a discount is from 10-25 percent.

[153]    The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.

[154]   There are however two circumstances which will generally affect the appropriate level of discount in a particular case:

(i)    The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.

(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.’

82   Spigelman CJ observed, at [155], that a discount at the top of the range would be restricted to pleas entered into at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. His Honour stated that a discount at the bottom of the range would be appropriate for late pleas, such as a plea entered into on the date fixed for trial.

83   Consistent with these observations, in the recent decision of Nash v Silver City Drilling (NSW) Pty Ltd v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, Basten JA (Hoeben CJ at CL and Walton J agreeing) stated that where a plea is entered on the first day fixed for trial, the utilitarian value of the plea must be ‘severely reduced’. As N Adams J (Hoeben CJ at CL and Button J agreeing) observed in Zhao v R [2016] NSWCCA 179, a discount of 10 per cent is usually allowed for a plea entered in such circumstances. In Hart v Attorney-General for New South Wales [2016] NSWCCA 71, Davies J (Hoeben CJ at CL and Harrison J agreeing) rejected the applicant’s submission that a discount of 10 per cent for the applicant’s guilty plea was inadequate. In that case, the applicant first indicated to the court his intention to plead guilty on the first day of the trial and only indicated such an intention to the prosecution on the Friday before the trial was due to start on the following Monday.

84   In Thomson; Houlton, which involved a state offence, Spigelman CJ did not purport to be prescriptive as to the discount that should be given in any particular case. As Spigelman CJ stated, it was a matter for the discretion of the sentencing judge as to the discount to be applied. There is, however, an inevitable logic in his Honour’s observations that the time at which a plea is entered is relevant to the discount to be applied. But as the portion of his Honour’s reasons cited above reveal, it is not the only consideration and may not be a decisive consideration in the given case. Nor is the range suggested by his Honour the necessary limit of the upper and lower range, although it is a useful guide. It is not, however, to use the language of the High Court in Hili [(2010) 242 CLR 520; [2010] HCA 45], a ‘norm’.

85   The Court is presently concerned with sentencing for a federal offence. In Hili, the High Court held, at [13] and [44], that there was no ‘judicially determined norm or starting point … for the period of imprisonment that a federal offender should actually serve in prison’. The so-called ‘norm’ of which the High Court was expressing its disapproval was the practice or convention in New South Wales of specifying, as the minimum period that an offender should serve in prison, a figure of 60 to 66 per cent of the term of imprisonment imposed.

86   In the present case, the plea was only entered on the day that the appellant’s trial was listed for hearing. In addition, as the facts reveal, the case was not particularly complex. Accordingly, the utilitarian value of the plea was not high. Nonetheless, I consider that some discount ought to be allowed for the plea and that discount should be at the low end. In all the circumstances, I consider that an appropriate discount is 10 per cent for the appellant’s guilty plea.”

51. In Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70, this Court (in judgments of the same five-Judge Bench as in Xiao v R (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ)) stated (per Bellew J at [69]) that the timing of the plea, to a large extent, determines the level of the utilitarian discount to be applied, citing R v Thomson; R v Houlton at [160].

52. In considering the nature of a discount for the utilitarian value of pleas of guilty, it is helpful to have regard to the decision of this Court in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 where Howie J (McClellan CJ at CL and Simpson J agreeing) explained the concept of utilitarian value of a guilty plea concerning State offences. Howie J said at [32]-[33]:

“32    It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application …:

1.    The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].

2.    Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].

3.    The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351 .

4.    The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.

5.    There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the ‘Ellis discount’; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.

6.    Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291.

7.    There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.

8.    Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9.    The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.

10.    An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129

11.    The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.

12.    The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

The last of these principles is derived from the present judgment and is included for completeness.

33    There also appears to be some looseness in the use of the expression ‘a discount’ that is apparent in the exchange between the prosecutor and the Judge set out above. Since Thomson and Houlton a ‘sentencing discount’ should be taken to mean a reduction in the otherwise appropriate sentence by a quantifiable amount due to a specific policy consideration. Such a discount is applied after the otherwise appropriate sentence has been determined. There are two sentencing discounts that have been identified: a discount for the plea of guilty and a discount for assistance. Where both these discounts apply they should be combined: R v SZ [2007] NSWCCA 19; 168 A Crim R 249 at [11]. The High Court has indicated that there should be limited use of ‘arithmetical deduction’ in determining an appropriate sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39].”

53. The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth).

54. Counsel for the Appellant and the Crown both accepted at the hearing in this Court that the principles in R v Borkowski provided assistance in assessing the utilitarian value of a guilty plea for a Commonwealth offence (T2-3, 5, 11, 6 February 2020).

55. It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender’s favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations.

56. As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]:

“Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.”

57. The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.

58. Mr Anderson, counsel for the Appellant, submitted that an assessment of the utilitarian value of the Appellant’s pleas of guilty may take into account the reasons for delay in the entry of pleas, said to be referrable to the Appellant’s unclear understanding of the brief of evidence and the strength of the prosecution case flowing from his earlier legal representation before Mr Ricci came to represent him. I do not accept this submission. Those aspects may bear upon the subjective issue of facilitation of the course of justice in explaining why the Appellant did not plead guilty earlier. However, they do not affect the utilitarian value, which in this case is reduced irrespective of the reason for the delay: R v Borkowski at [32](8) (at [52] above).

59. The discount for the utilitarian value of the Appellant’s pleas should have regard principally to the timing of the pleas of guilty which occurred after the first trial date had been vacated and shortly before the second trial date. The Court was informed that the trial had a six-week estimate as a joint trial with a co-accused, but a two-to-three week estimate if the Appellant was tried alone (T14, 6 February 2020). It may be taken that the Crown had been preparing for trial up to October 2011. Although there may have been limited further preparation for trial between October 2011 and the rescheduled trial date of 23 January 2012, it was not until shortly before the rescheduled trial date that the pleas of guilty were entered.

60. In these circumstances, I would assess the discount for the utilitarian value of the Appellant’s pleas of guilty at 12.5%. The subjective circumstances surrounding the Appellant’s unfamiliarity with the brief of evidence before Mr Ricci came to represent him, and the Appellant’s relatively prompt willingness to plead guilty thereafter, may be reflected in a further allowance for his willingness to facilitate the course of justice. This aspect lies as a subjective factor to be taken into account on sentence which ought not be quantified.

Resentencing the Appellant

61. I approach the sentencing of the Appellant upon the basis that the discount for the utilitarian value of his pleas of guilty, in accordance with Xiao v R, will be 12.5%.

62. The findings of her Honour Judge Hock with respect to the objective gravity of the offences remain appropriate and I adopt those findings for the purposes of resentencing.

63. The Appellant’s subjective case is a stronger one at this point than it was in 2013. He has made constructive use of his extended time in custody to undertake vocational courses and rehabilitative measures as well as demonstrating a greater level of maturity and insight, including contrition, with respect to his offending. All of these factors are to be taken into account in his favour on resentence, together with the factors referred to in [60] above. The Appellant has good prospects of rehabilitation and there is a low risk of him reoffending.

64. Having undertaken the process required by Kentwell v The Queen, I am satisfied for the purpose of s.6(3) Criminal Appeal Act 1912 that lesser sentences should be passed in this case including a lesser overall effective sentence, having regard to all relevant objective and subjective factors and after applying the 12.5% discount for the utilitarian value of the Appellant’s pleas of guilty (with some rounding). Partial accumulation of the sentences is appropriate and regard has been had to the totality principle.

65. The sentences to be passed will be as follows:

1. Count 3 - Aid and abet importation of marketable quantity of heroin - imprisonment for four years and nine months commencing on 19 April 2010 and expiring on 18 January 2015.

2. Count 1 - Aid and abet importation of commercial quantity of cocaine - imprisonment for nine years commencing on 19 April 2012 and expiring on 18 April 2021.

3. Count 2 - Aid and abet importation of commercial quantity of methamphetamine - imprisonment for nine years commencing on 19 October 2014 and expiring on 18 October 2023.

4. Count 4 - Aid and abet importation of commercial quantity of methamphetamine - imprisonment for nine years commencing on 19 October 2017 and expiring on 18 October 2026.

5. Count 5 - Aid and abet importation of commercial quantity of cocaine - imprisonment for nine years commencing on 19 October 2019 and expiring on 18 October 2028.

66. As against an overall effective head sentence of imprisonment for 18 years and six months commencing on 19 April 2010 and expiring on 18 October 2028, a single non-parole period of 11 years should be fixed commencing on 19 April 2010 and expiring on 18 April 2021.

67. As the Appellant is expected to be deported when he is released on parole, no purpose will be served by explaining the effect of release on parole for the purpose of s.16F Crimes Act 1914 (Cth).

Orders

68. I propose the following orders:

1. The sentences imposed upon the Appellant at the Sydney District Court on 4 April 2013 are quashed.

2. In their place, the Appellant is sentenced to the following terms of imprisonment:

1. for Count 3 - an offence of aiding and abetting importation of a marketable quantity of heroin, imprisonment for four years and nine months commencing on 19 April 2010 and expiring on 18 January 2015;

2. for Count 1 - an offence of aiding and abetting importation of a commercial quantity of cocaine, imprisonment for nine years commencing on 19 April 2012 and expiring on 18 April 2021;

3. for Count 2 - an offence of aiding and abetting importation of a commercial quantity of methamphetamine, imprisonment for nine years commencing on 19 October 2014 and expiring on 18 October 2023;

4. for Count 4 - an offence of aiding and abetting importation of a commercial quantity of methamphetamine, imprisonment for nine years commencing on 19 October 2017 and expiring on 18 October 2026;

5. for Count 5 - an offence of aiding and abetting importation of a commercial quantity of cocaine, imprisonment for nine years commencing on 19 October 2019 and expiring on 18 October 2028;

6. as against a head sentence of imprisonment of 18 years and six months, there is a single non-parole period of 11 years commencing on 19 April 2010 and expiring on 18 April 2021, with a balance of term of seven years and six months commencing on 19 April 2021 and expiring on 18 October 2028.

(c)   The Appellant will be eligible for release on parole on 19 April 2021.

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Decision last updated: 11 March 2020