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Kim v The Queen

Kim v The Queen

Case [2018] NSWCCA 68 27 April 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kim v R [2018] NSWCCA 68
Hearing dates: 4 April 2018
Date of orders: 27 April 2018
Decision date: 27 April 2018
Before: Basten JA at [1];
Rothman J at [11];
Garling J at [18]
Decision:
(1)   Grant the applicant leave to appeal against the sentences imposed on him in the District Court at Darlinghurst on Monday 24 April 2017.
(2)   Allow the appeal and quash the sentences.
(3)   In lieu thereof, sentence the applicant as follows:
(a)   with respect to count 1 (defrauding the revenue) and taking into account the offence on the Schedule (making a false statement in relation to a foreign travel document), sentence the applicant to imprisonment for 2 years and 3 months commencing on 24 May 2016;
(b)   in respect of count 2 (dealing with money which could become the instrument of crime) sentence the applicant to imprisonment for 5 years commencing on 24 November 2016 and expiring on 23 November 2021;
(c)   with respect to the aggregate term of the sentences, fix a non-parole period of 3 years 10 months to commence on 24 May 2016 and expire on 23 March 2020.
(4)   The date on which the applicant is first eligible for parole will be 23 March 2020.

Catchwords:
CRIME – appeal against sentence – import tobacco products with intent to defraud the Revenue – s 233BABAD(1) Customs Act 1901 (Cth) – deal in proceeds of crime worth $1,000,000 or more – s 400.3 Criminal Code (Cth) – parity with sentence imposed upon co-offender – whether there is a disparity between the sentence imposed upon the applicant and the sentence imposed upon the co-offender such as to leave the applicant with a justifiable sense of grievance – where unexplained discrepancy in accumulation – where discrepancy not justified by reference to principle of totality – appeal allowed

CRIME – appeal against sentence – non-parole period – single period required for multiple federal offences – error in commencing period after commencement of first sentence imposed
WORDS AND PHRASES – “non-parole period” – “aggregate” – Crimes Act 1914 (Cth) s 16
Legislation Cited: Crimes Act 1914 (Cth), ss 16, 16BA, 19AB, 19AC, 19AH; Div 4, Pt 1B
Criminal Code (Cth), s 400.3
Customs Act 1901 (Cth), s 233BABAD
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 18
Cases Cited: Cameron v R [2017] NSWCCA 229
Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176
Cooper v The Queen [2012] VSCA 32
Eriyo v R [2015] NSWCCA 16
Green v the Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462; (2011) 214 A Crim R 152
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Myles v R [2017] NSWCCA 266
Nicholls v The Queen [2016] VSCA 300
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Tang (2009) 23 VR 332; [2009] VSCA 182
Rees…

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 Kim v The Queen

Details

AGLC: Kim v The Queen [2018] NSWCCA 68
Case: [2018] NSWCCA 68
Decision Date: 27 April 2018

CaseChat Overview and Summary

In Kim v The Queen, the applicant appealed against his sentence for importing tobacco products with intent to defraud the Revenue, and for dealing in proceeds of crime worth over $1,000,000. The case was heard in the High Court of Australia, which held jurisdiction under section 75(iii) of the Constitution. The central issue before the court was whether there was a disparity between the sentence imposed on the applicant and the sentence imposed on a co-offender that would leave the applicant with a justifiable sense of grievance. Additionally, the court considered whether there was an error in the calculation of the non-parole period for multiple federal offences.

The court found that there was an unexplained discrepancy in the accumulation of the sentences, which was not justified by the principle of totality. The disparity was such that it left the applicant with a justifiable sense of grievance. Furthermore, the court identified an error in the calculation of the non-parole period. Under section 16 of the Crimes Act 1914, a single non-parole period is required for multiple federal offences, and the court held that the non-parole period should have commenced after the commencement of the first sentence imposed, not after the last. This finding led to the court ordering a correction to the non-parole period.

The High Court allowed the appeal, ordering that the sentences be re-considered in light of the principles of parity and the correct calculation of the non-parole period. The court’s decision emphasised the importance of ensuring that sentences are proportionate and that the principles of sentencing are applied consistently. The final orders required the lower court to re-assess the applicant’s sentence in accordance with the High Court’s reasoning, ensuring that any disparity with the co-offender’s sentence was properly addressed and justified.

Orders