CITATION: R v Kim, Gwan Hong [2008] NSWDC 349 HEARING DATE(S): 03/11/2008
JUDGMENT DATE:
7 November 2008JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted.
Sentence to 2 ½ years imprisonment to date from the 25th March 2008.
Released pursuant to a recognizance release order after 8 months.CATCHWORDS: Criminal Law - Sentencing- knowingly give false evidence ot ACC - offender questioned under oath about knowledge and involvement concerning importation of 352kilograms of pseudoephedrine - claimed inability to recall all relevant matters - criteria for assessing objective criminality identified - impact of obstruction to detection and investigation of crime identified - subjective circumstances reasonable - late plea - absence of contrition. LEGISLATION CITED: Migration Act
Australian Crime Commission Act 2002
Crimes Act 1914CASES CITED: R v Aristodemou unreported, NSWCCA 30/6/1994
R v Einfeld [2008] NSWCCA 215
R v Daniel James Rodd (Qld Supreme Court, per Wilson J, 27/6/08)
R v Nash (2008) SASR 109
R v Dean Colin Abell [2007] QCA 448
R v Geoffrey John Seaniger (Qld Supreme Court, per Mullins J, 4/5/07)
R v Jim Kafritsas (Victorian County Court, per Dyggan J, 13/4/07)
R v Michael Joseph Hood (NSW District Court per Ander DCJ, 12/7/07)
R v Mario D’ Alessandro (NSW District Court per Ander DCJ, 30/01/07)
Cth DPP v Marc Quaid (WA Magistrates Court, per Magistrate Malley, 24/7/06)
R v Delmardoros (WA District Court per Groves DCJ, 21/3/06)
R v Daniel Luke Pelham (Tas Supreme Court, 27/10/05)
R v Kieran Peter Kordic (Qld District Court per Judge Samios, 29/7/05)
R v Walter Allan Hughes (Qld District Court per Trafford-Walker J, 22/4/04)
R v Irwin [1999] NSWCCA 361 (13/8/99)
R v Steven Leslie Franklin-Bull (Qld District Court per Judge O’Brien, 13/8/99)
Barnes v Boulton [2004] FCA 1219PARTIES: Regina
Gwan Hong KimFILE NUMBER(S): 2008/00012907 COUNSEL: Crown: N Adams
Defence: N Steel
1. As the conduct of criminals has become more and more sophisticated, secretive, and menacingly effective in avoiding detection, governments, both State and Commonwealth, have established investigative commissions with their wide range of powers including powers to coerce persons to divulge under oath what they know about facts, circumstances and persons that may be linked to criminal activity. The New South Wales Crime Commission, ICAC, the New South Wales Police Integrity Commission and the Australian Crime Commission are all examples of investigative bodies using investigative powers given to them by government.
2. Justice Badgery-Parker, speaking about ICAC, made observations that would apply equally to the Australian Crime Commission and its approach to the investigation of crime.
- “The will of the community which led to, and is manifested by, the enactment of the ICAC Act is that corruption should be eradicated from the community and that this means to produce that result should include the coercive and inquisitorial powers conferred on ICAC by statute”; ( R v Aristodemou unreported, NSWCCA 30/6/1994)
3. Gwan Hong Kim, between 5 and 7 March 2008 at Sydney, gave evidence before an examiner at the Australian Crime Commission (ACC) that…
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- Case
- [2008] NSWDC 349
- Decision Date
CaseChat Overview and Summary
The central legal issues for the court to address were the criteria for assessing the objective criminality of the offence, the impact of Kim's actions in obstructing the detection and investigation of the crime, and the subjective circumstances that could be considered reasonable in the context of his plea and the absence of contrition. The court was tasked with determining an appropriate sentence that balanced these factors within the framework of Australian criminal law.
In assessing the objective criminality, the court considered the severity of the underlying offence, which involved a substantial amount of a precursor chemical used in the illegal manufacture of drugs. The court also highlighted the obstruction caused by Kim's false testimony, which impeded the investigation and potentially endangered public safety. Despite Kim's claim of an inability to recall all relevant matters and the lateness of his plea, the court found that his subjective circumstances were reasonable. Ultimately, the court sentenced Kim to 2 ½ years imprisonment, with the sentence to commence from 25 March 2008. However, Kim was released pursuant to a recognizance release order after serving 8 months.
Orders
Orders of the court
Convicted.
Sentence to 2 ½ years imprisonment to date from the 25th March 2008.
Released pursuant to a recognizance release order after 8 months.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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