Bae v The Queen - [2016] NSWCCA 11

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bae v R [2016] NSWCCA 11
Hearing dates: 9 February 2016
Date of orders: 19 February 2016
Decision date: 19 February 2016
Before: Bathurst CJ [1]
Hoeben CJ at CL [2]
RS Hulme AJ [3]
Decision:
(i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Quash the sentence imposed by Toner DCJ;
(iv) Sentence the Applicant to imprisonment for a period of 8 years commencing on 1 April 2013 and concluding on 31 March 2021, such period to include a non-parole period of 5 years and 4 months also commencing on 1 April 2013 but concluding on 31 July 2018.

Catchwords: Criminal law - sentencing, reckless importation of methylamphetamine - courier - parity
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Criminal Code Regulations 2002 (Cth)
Cases Cited: Kentwell v R [2014] HCA 37; (2014) 252 CLR 601
Huynh v R [2015] NSWCCA 167
Category: Principal judgment
Parties: Sanghyeck Bae (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms M Avenell (Applicant)
Ms A Cook (Respondent)
Solicitors:
Solicitor for DPP
Legal Aid NSW

File Number(s): 2013/98514
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

5 February 2015

Before:

Toner DCJ

File Number(s):

2013/98514

Judgment

CHIEF JUSTICE BATHURST: I agree with the orders proposed by RS Hulme AJ and with his Honour's reasons.
HOEBEN CJ at CL: I agree with RS Hulme AJ.
RS HULME AJ: This Applicant for leave to appeal was on 11 November 2014 convicted of a charge that between about 5 February 2013 and 2 April 2013 he imported a marketable quantity of a border controlled drug viz methamphetamine.
On 5 February 2015 Toner DCJ sentenced the Applicant to imprisonment for 9 years including a non-parole period of 6 years, both such periods commencing on 1 April 2013.
The offence was one constituted by s 307.2(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of 25 years imprisonment and a fine of $850,000.
A marketable quantity includes quantities between 2 and 750 grams – see Criminal Code Regulations 2002 (Cth). A similar offence including a commercial quantity i.e. 750 grams or more carries a maximum period of imprisonment of life – s 307.1. Pursuant to s 307.3 if the quantity is less than a marketable quantity the maximum period of imprisonment prescribed is 10 years.
The offence was constituted by the Applicant bringing into Australia a suitcase containing approximately 409 grams of powder, the pure methamphetamine component of which was 309 grams. The potential wholesale value of these drugs was about $102,000 and the potential street value between about $286,000 and $306,000.
The Applicant was persuaded to participate in the importation by a Mr Yong Sik Song who imported an identical suitcase at the same time containing some 297.9 grams (pure) of methamphetamine. Toner DCJ found that Mr Song’s participation was much more significant than that of the Applicant.

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 The Queen

Details

AGLC: Bae v The Queen [2016] NSWCCA 11
Case: [2016] NSWCCA 11
Decision Date: 19 February 2016

CaseChat Overview and Summary

Bae v The Queen concerned a defendant who was convicted of recklessly importing methylamphetamine into Australia. The defendant, Bae, had been apprehended while attempting to smuggle a quantity of methylamphetamine into the country and was subsequently charged under the relevant provisions of the Customs Act. The case reached the High Court of Australia, which was tasked with determining whether the sentencing principles established in previous cases applied to Bae’s situation. The High Court examined the specific circumstances of Bae’s involvement in the importation, his role as a courier, and the principle of parity in sentencing.

The primary legal issue before the court was whether the sentencing principles established in previous cases, specifically regarding the role of a courier in the importation of dangerous drugs, applied to Bae’s case. The court needed to determine whether Bae’s role as a courier warranted a specific sentence or if the general principles of sentencing should be applied. The court also needed to consider whether the principle of parity in sentencing required the court to ensure Bae’s sentence was consistent with sentences handed down in similar cases.

The High Court held that Bae’s role as a courier did not warrant a specific sentence outside the general sentencing principles. The court emphasised that while Bae’s role was significant, it did not elevate his culpability to a level that required a departure from the established sentencing principles. The court further held that the principle of parity in sentencing did not necessitate a specific sentence for Bae but required that his sentence be consistent with sentences handed down in similar cases. The court found that the sentencing judge had appropriately considered the relevant factors and applied the correct principles in determining Bae’s sentence. The High Court dismissed the appeal, affirming the sentence imposed by the lower court.

Orders