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R v Choi (No 10)

R v Choi (No 10)

Case [2021] NSWSC 891 23 July 2021

Sentencing

Criminal Liability

Criminal Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Choi (No 10) [2021] NSWSC 891
Hearing dates: 13-15 July 2021
Decision date: 23 July 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
The offender, Chan Han Choi, is convicted of counts 1 and 2 on the indictment. The offender is sentenced to an aggregate sentence of imprisonment for a fixed term of 3 years and 6 months, commencing on 16 December 2017 and expiring on 15 June 2021. As the sentence has expired, the offender is no longer subject to the conditions of bail.

Catchwords:
SENTENCING – Plea of guilty to providing sanctioned services to North Korean entities contrary to s 27(1) of the Charter of the United Nations Act 1945 (Cth) and the Autonomous Sanctions Act 2011 (Cth) – brokering services for transactions involving military equipment, coal, petroleum and pig iron
SENTENCING – Seriousness of offence – relevance of maximum penalty for most serious category of offences – wide conduct covered by offences
SENTENCING – Relevance of motivation – twofold motive to assist people of North Korea adversely affected by sanctions and for financial gain
SENTENCING – aggregate sentence imposed – no specification of non-parole period as total term expired prior to imposition of sentence having regard to lengthy period on remand – following grant of bail, strict conditions imposed which amounted to quasi-custody

Legislation Cited:
Autonomous Sanctions Act 2011 (Cth), ss 6, 10, 11, 16
Autonomous Sanctions Regulations 2011 (Cth), reg 13
Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008 (Cth), regs 4, 5, 11
Charter of the United Nations Act 1945 (Cth), s 27
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 47, 53A
Crimes Act 1914 (Cth), ss 16A, 16AB, 16BA, 16E, 16F, 17A, 19AB
Evidence Act 1995 (NSW), s 191
The Charter of the UN (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No 2) Regulations, Sch 1

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556
Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
R v Choi [2020] NSWSC 1586
R v De Leeuw [2015] NSWCCA 183
Restricted Judgment [2019] NSWSC 1892
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Veen v The Queen (No. 2) (1988) 164 CLR 465 at 478; [1988] HCA 14
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Xioa v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Texts Cited:
Explanatory Memorandum, Autonomous Sanctions Bill 2010 (Cth)
Second Reading Speech, International Trade Integrity Bill 2007 (Cth) (Commonwealth House of Representatives, 14 June 2007)
United Nations Security Council, Resolution 1718 (adopted 14 October 2006)
United Nations Security Council, Resolution…

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 R v Choi (No 10)

Details

AGLC: R v Choi (No 10) [2021] NSWSC 891
Case: [2021] NSWSC 891
Decision Date: 23 July 2021

CaseChat Overview and Summary

The case of R v Choi (No 10) involved a plea of guilty to charges of providing sanctioned services to North Korean entities, contravening sections of the Charter of the United Nations Act 1945 (Cth) and the Autonomous Sanctions Act 2011 (Cth). The accused provided brokering services for transactions involving military equipment, coal, petroleum, and pig iron. The matter was heard in the Federal Court of Australia.

The central legal issues addressed by the court included the seriousness of the offence, the relevance of the maximum penalty for the most serious category of offences, the wide conduct covered by the offences, and the relevance of the accused's motivation. The court had to consider both the accused's motive to assist North Koreans adversely affected by sanctions and his motive for financial gain. Additionally, the court needed to determine an appropriate aggregate sentence, taking into account the lengthy period the accused had spent on remand, and the imposition of strict bail conditions amounting to quasi-custody.

The court found the offences to be of significant seriousness, particularly due to the involvement of military equipment. The court acknowledged the wide scope of conduct covered by the offences and considered the accused's twofold motivation. The court imposed an aggregate sentence without specifying a non-parole period, given that the total term would expire prior to the imposition of the sentence. After granting bail, the court imposed strict conditions that amounted to quasi-custody, reflecting the gravity of the offences and the need to ensure the accused's compliance with the terms of his release.

The final orders included the imposition of an aggregate sentence, strict bail conditions amounting to quasi-custody, and the direction that the accused adhere to the conditions set for his release. The court's decision emphasised the importance of upholding sanctions and the gravity of engaging in activities that contravene these laws.

Orders