BAE v The Queen; Koo v The Queen - [2020] SASCFC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
BAE v THE QUEEN; KOO v THE QUEEN
[2020] SASCFC 7
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)
30 January 2020
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION
POLICE - RIGHTS, POWERS AND DUTIES - OTHER POWERS AND DUTIES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
Appeal against conviction and sentence.
After a trial by judge alone, both appellants were convicted of one count of trafficking in a large commercial quantity of a controlled drug, namely methylamphetamine. The appellant, Koo, was sentenced to imprisonment for 12 years with a non-parole period of seven years. The appellant, Bae, was sentenced to imprisonment for 12 years but with a non-parole period of six years.
With respect to the conviction appeal, the appellants contend that the trial Judge’s reasons were inadequate, that the Judge erred by admitting evidence of the search of the appellants’ vehicle as the police did not have the authority to detain and search the vehicle in which the methylamphetamine was located, that the Judge erred by using evidence that was only admitted on the voir dire in his reasons for decision, and that the verdict is unreasonable.
With respect to the sentence appeal, both appellants complain that the sentence of 12 years' imprisonment is manifestly excessive. The appellant, Koo, also complains that his higher non-parole period reveals an error and a departure from the principle of parity.
Held, per Kelly J (Stanley and Parker JJ agreeing), dismissing the appeals against conviction:
1. The conclusions reached by the Judge on the voir dire hearing to determine the admissibility of the search evidence were correct. The actions of police in requesting the Roadhouse operator not to supply fuel to the appellants did not amount to a detention. Even if it did, that detention was lawfully justified by the powers given to police pursuant to s 52(6) and s 52(9) of the Controlled Substance Act 1984 (SA). There was nothing unlawful or improper on the part of the police prior to the search of the vehicle to enliven the public policy discretion.
2. The overwhelming combination of the circumstances set out by the Judge in his reasons was compelling. All of the inferences the Judge drew from that evidence were open to him. Far from being inscrutable, the trial Judge’s reasons were comprehensive, thorough and…

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.

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Details

Case: [2020] SASCFC 7
Decision Date: 30 January 2020

CaseChat Overview and Summary

This case concerned appeals by BAE and KOO against their convictions and sentences. The primary ground of appeal against conviction related to the admission of evidence obtained from the search of the appellants' vehicle at the Nundroo Roadhouse. The appeals against sentence raised issues of manifest excess and, in Koo's case, a lack of parity with BAE's sentence. The Court of Appeal comprised Kelly, Stanley and Parker JJ.

The legal issues before the court included whether the appellants were de facto detained by police actions prior to the search of their vehicle, whether the police were lawfully justified in stopping and searching the vehicle under relevant provisions of the Criminal Code, and if not, whether the trial judge erred in exercising their discretion to admit the evidence obtained from the search. In relation to the sentences, the court considered whether the imposed sentences were manifestly excessive, and specifically for Koo, whether the disparity in the non-parole periods granted to him and BAE was justified by the principle of parity.

The court dismissed the appeal against conviction, finding that the appellants were not detained in a manner that would render the subsequent search unlawful. The reasoning focused on the absence of physical restraint and the fact that the police had merely inquired about fuel, rather than issuing a directive. The court concluded that the police conduct was authorised under the relevant sections of the Criminal Code, and therefore the evidence was lawfully obtained. Regarding the sentences, the court found that Koo had a justifiable grievance concerning the difference in non-parole periods. It was held that the personal circumstances relied upon by the sentencing judge to distinguish between the appellants were not sufficiently dissimilar to warrant the departure from the principle of parity, particularly given their shared status as foreign nationals with English as a second language and limited support networks.

The appeals against conviction were dismissed. The appeal against sentence by BAE was dismissed. The appeal against sentence by Koo was allowed in part, with the court indicating it would vary the non-parole period to achieve parity with BAE.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Grounds one and four are linked and therefore may be considered together. It is convenient to deal first with the second ground of appeal.Ground 2 - the trial Judge erred in admitting evidence of the search of the appellants’ vehicle at the Nundroo Roadhouse In my view, this ground of appeal raises three questions to be answered. The first is whether the appellants were, in fact, detained. Although not formally arrested by the police until after the search of the vehicle had taken place, the question is whether the appellants were under de facto arrest from the time they arrived at the Nundroo Roadhouse (‘the Roadhouse’) on the grounds that, by their communications to the Roadhouse operator, the police had, in effect, interfered with the appellants’ freedom to move and/or deprived them of their ability to leave the Roadhouse. If the appellants were detained, the second question which arises is whether the police officers were lawfully justified in stopping and searching the appellants’ vehicle, or in other words, was it a lawful detention and was it a lawful search. Counsel for the appellant, Bae, sought to characterise one aspect of this question as whether it was lawful for the police to issue a “direction” to the Roadhouse operator to not provide fuel to the appellants. There was no evidence to suggest that the police ever directed anybody, only evidence that they telephoned and asked the Roadhouse operator not to provide fuel to the appellant. In those circumstances, in my view, the relevant question here is whether the police conduct as a whole was authorised, that is that the police held the requisite suspicion to empower them to stop the vehicle and carry out the search pursuant to s 52(6) and s 52(9) of the CSA. If the police were not empowered pursuant to the relevant sections of the CSA, and either the detention or the search was unlawful, then the final issue to resolve is whether the Judge erred in the exercise of the discretion by not excluding the evidence of the search of the vehicle. Were the appellants detained? I turn now to the issue of whether the appellants were detained in the sense that, although not formally arrested by the police, they were under de facto arrest because of the police officers’ actions in communicating to the Roadhouse operator not to serve the appellants with petrol. The facts here are unique. The appellants were not physically restrained from leaving the Roadhouse. There was no evidence at trial that they had actually run out of petrol. The next service station was 80 kilometres away. However, on appeal, the appellants argue that by the police communicating to the Roadhouse not to serve them with petrol, the appellants were effectively detained. In support of that submission, the appellants rely on a number of interstate and international cases. The Canadian Supreme Court in R v Grant[1] discussed the meaning of detention for the purpose of determining whether rights set out in ss 9 and 10 of the Canadian Charter of Rights and Freedoms (‘the Canadian Charter’) had been triggered by the conduct of the police. [1] [2009] 2 SCR 353, [24].

Decision

Reasons for decision

KELLY J

I would dismiss this ground of appeal in respect of both appellants.Conclusion on the appeal against conviction I would dismiss the appeal against conviction in respect of both appellants.Appeal against sentence Both appellants appeal the sentences imposed by the Judge on the basis that the sentences are manifestly excessive. The appellant, Koo, advances an additional ground in respect of the higher non-parole period he received by reference to the principle of parity. The Judge sentenced the appellant, Koo, to a head sentence of 12 years imprisonment with a non-parole period of seven years. The appellant, Bae, received the same head sentence but received a lower non-parole period of six years.Manifest excess - Bae The appellant, Bae, complains that the sentence of 12 years in his circumstances reflected a lack of proportionality as this was a one-off offence committed by a young man of good character who came before the court as a first offender and was therefore entitled to the usual leniency that such an offender might attract. Moreover, references tendered before the Judge demonstrated that the appellant’s offending was uncharacteristic and involved a significant departure from his personal history and known character. Manifest excess, parity - Koo The appellant, Koo, also complains of manifest excess, submitting that the sentence was not within the permissible range given the role that the appellant played in the offending and the isolated nature of the offending. The appellant also submits that the Judge has not had adequate regard to the personal circumstances of the appellant including his lack of prior offending and good character. In addition to complaining that the head sentence was manifestly excessive, the appellant, Koo, complains that the Judge’s decision to distinguish the non-parole period of Bae on the basis that he did reveals error. The appellant, Koo, submits that, in fixing a lower non-parole period because of Bae’s slightly younger age, language issues and lack of support in custody which would make, in the Judge’s view, his incarceration more onerous, the Judge has erred. It was submitted that the personal circumstances of both appellants were not relevantly dissimilar. Both were Korean nationals with English as their second language. Although Bae’s family reside in Korea, Koo’s family live in Sydney and are of modest means. In practical terms, the situation of the appellant Bae is not much different to the appellant Koo. Neither appellant will receive any support from someone who is able to visit them on a regular basis. In those circumstances, the appellant, Koo, complains that the differences in personal circumstances of the appellants are not such that the departure from the application of the principle of parity was warranted. In light of these factors, the appellant, Koo, has a justifiable sense of grievance at the lower non-parole period imposed in respect of the appellant, Bae. Before turning to each of these complaints, it is necessary to first consider the nature of the offending. Discussion

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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