BAE, Kangmin v R [2015] NSWCCA 133

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BAE, Kangmin v R [2015] NSWCCA 133 Hearing dates: 24 April 2015 Decision date: 03 June 2015 Before: Hoeben CJ at CL at [1]; Hall J at [2]; Wilson J at [112] Decision: (1) The application for leave to appeal be granted. (2) The appeal be dismissed. Catchwords: CRIMINAL LAW – Application to appeal against sentence – Applicant convicted of five counts of drug importation – Whether the sentencing judge erred in taking into account the applicant's use of innocent agents in sentencing – Applicant submitted that there was no direct evidence to establish a factual finding as to the use of innocent agents in the importation of drugs – Evidence had been tendered as to addresses for consignments later found to contain drugs, some of which were addresses of apparently innocent agents – Held that it was open to the sentencing judge to find the use of innocent agents on the basis of that evidence – Whether sentencing judge erred in accumulating the sentences to the extent she did – Held that while the offences formed part of an ongoing scheme or enterprise they were nonetheless separate, discrete offences – Held that the mere temporal relationship between the offences does not mean they are not separate acts of criminality – Sentencing judge did not err in accumulating the sentences – Whether the sentencing judge erred by taking into account the fact of the offences not being 'isolated' in her assessment of both the objective seriousness of the offences and the degree of accumulation to be applied and whether this amounted to 'double counting' – Held that no double counting had occurred – Whether the sentencing judge's reference to the offences being 'not isolated' was a reference to uncharged conduct being taken into account – Held that the sentencing judge's reference to the conduct not being isolated in this context was a reference to the other offences charged on the indictment – No other uncharged conduct was taken into account – Whether the sentence was manifestly excessive – Reliance on categories set out in De La Rosa is of limited assistance and that decision is not a guideline judgment – No error established in sentencing judge's approach – Held that sentence was not manifestly excessive – Appeal dismissed Legislation Cited: Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code (Cth) Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 DPP v De La Rosa (2010) 79 NSWLR 1 Kentwell v The Queen [2014] HCA 37 Lowndes v The Queen (1999) 195 CLR 665 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 Sabongi v R [2015] NSWCCA 25 Sabra v R [2015] NSWCCA 38 Thuong Nguyen v R [2012] NSWCCA 184 Category: Principal judgment Parties: Kangmin Bae (Applicant) Regina (Crown) Representation: Counsel: I Nash (Applicant) C O'Donnell (Crown)