Kim v R [2018] NSWCCA 68

Court of Criminal Appeal Supreme Court New South Wales 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