Bae v R

Case [2015] NSWCCA 133 3 June 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BAE, Kangmin v R [2015] NSWCCA 133
Hearing dates: 24 April 2015
Decision date: 03 June 2015
Before: Hoeben CJ at CL at [1];
Hall J at [2];
Wilson J at [112]
Decision:
(1) The application for leave to appeal be granted.
(2) The appeal be dismissed.

Catchwords: CRIMINAL LAW – Application to appeal against sentence – Applicant convicted of five counts of drug importation – Whether the sentencing judge erred in taking into account the applicant’s use of innocent agents in sentencing – Applicant submitted that there was no direct evidence to establish a factual finding as to the use of innocent agents in the importation of drugs – Evidence had been tendered as to addresses for consignments later found to contain drugs, some of which were addresses of apparently innocent agents – Held that it was open to the sentencing judge to find the use of innocent agents on the basis of that evidence – Whether sentencing judge erred in accumulating the sentences to the extent she did – Held that while the offences formed part of an ongoing scheme or enterprise they were nonetheless separate, discrete offences – Held that the mere temporal relationship between the offences does not mean they are not separate acts of criminality – Sentencing judge did not err in accumulating the sentences – Whether the sentencing judge erred by taking into account the fact of the offences not being ‘isolated’ in her assessment of both the objective seriousness of the offences and the degree of accumulation to be applied and whether this amounted to ‘double counting’ – Held that no double counting had occurred – Whether the sentencing judge’s reference to the offences being ‘not isolated’ was a reference to uncharged conduct being taken into account – Held that the sentencing judge’s reference to the conduct not being isolated in this context was a reference to the other offences charged on the indictment – No other uncharged conduct was taken into account – Whether the sentence was manifestly excessive – Reliance on categories set out in De La Rosa is of limited assistance and that decision is not a guideline judgment – No error established in sentencing judge’s approach – Held that sentence was not manifestly excessive – Appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code (Cth)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
DPP v De La Rosa (2010) 79 NSWLR 1
Kentwell v The Queen [2014] HCA 37
Lowndes v The Queen (1999) 195 CLR 665
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429
R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
Sabongi v R [2015] NSWCCA 25
Sabra v R [2015] NSWCCA 38
Thuong Nguyen v R [2012] NSWCCA 184
Category:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bae v R

Details

AGLC: Bae v R [2015] NSWCCA 133
Case: [2015] NSWCCA 133
Decision Date: 03 June 2015

CaseChat Overview and Summary

In the matter of Bae v The Queen, the applicant, Bae, appealed against his sentence for five counts of drug importation. The sentencing judge had taken into account the use of innocent agents in imposing sentence, which Bae argued was not supported by sufficient evidence. The applicant further argued that the judge erred in accumulating the sentences for the separate offences and in considering the fact that the offences were not isolated. Bae contended that these factors amounted to double counting and that the sentence was manifestly excessive.

The court examined whether the sentencing judge was correct in finding that Bae used innocent agents based on the evidence presented. It was determined that the judge was entitled to make this finding given the addresses provided for the consignments were linked to apparently innocent agents. Regarding the accumulation of sentences, the court held that while the offences were part of an ongoing scheme, they remained separate and discrete acts of criminality. The temporal relationship between the offences did not negate their individual criminal nature. The court also found that the sentencing judge did not commit any error in considering the non-isolation of the offences, which referred to the other charged offences rather than uncharged conduct. The court concluded that the sentence imposed was not manifestly excessive and affirmed the sentencing judge's approach.

In light of the above findings, the appeal was dismissed. The court held that the sentencing judge had properly exercised her discretion in considering the factors relevant to sentencing, and no error was established in the imposition of the sentence. The applicant's arguments did not demonstrate that the sentence was manifestly excessive or that the judge had erred in her legal or factual findings.

Orders