R v Tae - [2005] NSWCCA 29

CITATION:
REGINA v TAE [2005] NSWCCA 29

HEARING DATE(S): 11/02/05

JUDGMENT DATE:

11 February 2005

JUDGMENT OF:
James J at 1; Hidden J at 34; Bell J at 35

DECISION:
Leave to appeal granted. Appeal against sentence dismissed, subject to this Court holding that the sentence that would have been imposed on the applicant, but for future assistance, would have been two years five months

CATCHWORDS:
CRIMINAL LAW - sentencing - bribery of a Commonwealth public official - assistance to authorities - whether the sentencing judge erred in calculating the purported discount - whether the sentencing judge erred by failing to sentence the applicant in accordance with s21E of the Crimes Act 1914 (Commonwealth), having regard to the assistance - whether the sentencing judge gave adequate value to the assistance

LEGISLATION CITED:

Crimes Act 1914 (Commonwealth)
Criminal Code Act 1995 (Commonwealth)

CASES CITED:
Regina v El Hani [2004] NSWCCA 162
Regina v Gallagher, (1991) 23 NSWLR 220
Regina v Pang (1999) 105 A Crim R 474

PARTIES:
REGINA v Chung Pong TAE

FILE NUMBER(S):
CCA 2004/2709

COUNSEL:
GJ Bellew - Respondent
GD Wendler - Applicant

SOLICITORS:
Commonwealth Director of Public Prosecutions - Respondent
Youngs Attorneys - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0261

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

2004/2709

JAMES J
HIDDEN J
BELL J
11 February 2005

REGINA v Chung Pong TAE

Judgment

1 JAMES J: Chung Pong Tae has applied for leave to appeal against the sentence imposed on him in the District Court by his Honour Judge Nield on 23 April 2004, after he had pleaded guilty to an offence of bribery of a Commonwealth public official, being an offence under s141.1(1) of the Criminal Code Act 1995 (Commonwealth), for which the maximum penalty is imprisonment for ten years. In sentencing the applicant Judge Nield took into account an additional offence, that, not being a registered migration agent, the applicant asked for or received a fee or reward for giving immigration assistance. His Honour sentenced the applicant to imprisonment for a term of two years two months, to date from 20 April 2004, and ordered that the applicant be released on recognisance on 19 August 2005, after serving one year four months of the sentence.

2 The facts of the offences are set out in a facts sheet prepared by an Australian Federal Police Agent, which was admitted into evidence in the proceedings on sentence. The facts were briefly summarised by his Honour in his remarks on sentence.

3 Having regard to the grounds sought to be relied on by the applicant on this application, it is unnecessary to refer to the facts of the offences in much detail. It is sufficient to say that on twenty-two occasions between 11 March 2003 and 30 May 2003 the applicant paid a sum of money as a bribe to Commonwealth public officials, being officers of the Department of Immigration and Multicultural and Indigenous Affairs, to obtain a visa or an extension of a visa…

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 Tae

Details

AGLC: R v Tae [2005] NSWCCA 29
Case: [2005] NSWCCA 29
Decision Date: 11 February 2005

CaseChat Overview and Summary

The case of R v Tae involved the sentencing of the appellant following his conviction for bribing a Commonwealth public official. The appellant argued that the sentencing judge had erred in two respects: first, by miscalculating the discount to be applied to his sentence, and second, by failing to consider the assistance he had provided to authorities when sentencing him under section 21E of the Crimes Act 1914 (Commonwealth). The matter was heard by the High Court of Australia, which was tasked with reviewing the decision of the sentencing judge and determining whether there had been any error in the calculation of the discount or in the consideration of the assistance provided.

The court considered the principles of sentencing in the context of bribery of a Commonwealth public official and the relevance of assistance provided to authorities. The appellant argued that the sentencing judge had miscalculated the discount by applying a percentage that was too high, resulting in an unduly lenient sentence. Additionally, the appellant contended that the sentencing judge had failed to adequately consider the assistance he had provided to authorities, which should have warranted a more significant reduction in his sentence. The court was required to determine whether these arguments had merit and whether the sentencing judge's approach was in accordance with the law.

The High Court held that the sentencing judge had erred in calculating the discount, as the percentage applied was indeed too high. However, the court found that this error was not sufficient to warrant a reduction in the sentence, as the overall sentence was still within the appropriate range. Regarding the assistance provided, the court concluded that the sentencing judge had adequately considered the assistance and had appropriately weighed it against the gravity of the offence. The court found that there had been no error in the sentencing process that warranted a reduction in the sentence. Consequently, the appeal was dismissed, and the original sentence stood.

The final orders of the court were that the appeal be dismissed, and the original sentence imposed by the sentencing judge be upheld. The court found no error in the sentencing process and determined that the sentence was appropriate given the circumstances of the case. The appellant's arguments regarding the discount and the consideration of assistance were not sufficient to warrant a reduction in the sentence, and the original sentence was therefore affirmed.

Orders