Bae v R [2020] NSWCCA 35

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bae v R [2020] NSWCCA 35 Hearing dates: 6 February 2020 Date of orders: 11 March 2020 Decision date: 11 March 2020 Before: Bell P at [1] Walton J at [2] Johnson J at [3] Decision: The sentences imposed upon the Appellant at the Sydney District Court on 4 April 2013 are quashed. In their place, the Appellant is sentenced to the following terms of imprisonment: (i) for Count 3 - an offence of aiding and abetting importation of a marketable quantity of heroin, imprisonment for four years and nine months commencing on 19 April 2010 and expiring on 18 January 2015; (ii) for Count 1 - an offence of aiding and abetting importation of a commercial quantity of cocaine, imprisonment for nine years commencing on 19 April 2012 and expiring on 18 April 2021; (iii) for Count 2 - an offence of aiding and abetting importation of a commercial quantity of methamphetamine, imprisonment for nine years commencing on 19 October 2014 and expiring on 18 October 2023; (iv) for Count 4 - an offence of aiding and abetting importation of a commercial quantity of methamphetamine, imprisonment for nine years commencing on 19 October 2017 and expiring on 18 October 2026; (v) for Count 5 - an offence of aiding and abetting importation of a commercial quantity of cocaine, imprisonment for nine years commencing on 19 October 2019 and expiring on 18 October 2028; (vi) as against a head sentence of imprisonment of 18 years and six months, there is a single non-parole period of 11 years commencing on 19 April 2010 and expiring on 18 April 2021, with a balance of term of seven years and six months commencing on 19 April 2021 and expiring on 18 October 2028. The Appellant will be eligible for release on parole on 19 April 2021. Catchwords: APPEAL – referral to Court of Criminal Appeal under s.79(1)(b) Crimes (Appeal and Review) Act 2001 - offences of aiding and abetting importations of commercial quantities of cocaine and methamphetamine and a marketable quantity of heroin – appellant sentenced in 2013 - sentencing Judge excluded utilitarian value of appellant's pleas of guilty from consideration in calculating discount consistent with the law prior to Xiao v R – Xiao v R error established - consideration of factors relevant to utilitarian value of guilty pleas - guidance provided by the principles in R v Borkowski - appellant with stronger subjective case on resentence in 2020 - finding that appellant now had good prospects of rehabilitation and a low risk of reoffending - lesser sentences warranted – applicant resentenced Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code (Cth) Cases Cited: Application of Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review Act 2001 (NSW) [2019] NSWSC 1413 Baden v R [2020] NSWCCA 23 Bae v R [2015] NSWCCA 133 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Carlton v R [2014] NSWCCA 14 Diaz v R [2019] NSWCCA 216 Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Singh v R [2018] NSWCCA 60 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Texts Cited: --- Category: Principal judgment Parties: Kangmin Bae (Appellant) Regina (Respondent) Representation: Counsel: Mr T Anderson (Appellant) Mr K Ginges (Respondent)