By Paul Gregoire and Ugur Nedim
In September 2015, Australian Border Force (ABF) officers examined a consignment from South Korea described as mobile phone cases, which actually contained 275,000 cartons of branded cigarettes. If successful, the smugglers would have avoided paying $290,000 in duty.
Under ABF watch, the consignment was permitted to continue on to its scheduled destination where it was received at a Burwood storage facility by Dohyuen Kim and Hanyeol Yang. The pair – who are both Korean nationals – were arrested.
A subsequent investigation found that Mr Kim sent a total of $1,550,916 to Korea via a remittance service, while Mr Yang had instructed Mr Insung Park to deposit $302,688 into bank accounts. Both these amounts were the proceeds from the sale of illicit cigarettes.
Following his release on conditional bail, which included having his passport seized, Mr Kim attended the Korean Consulate and applied for a replacement passport, claiming that he had lost his old one in a restaurant.
Mr Kim and Mr Yang both entered early guilty pleas in the NSW Local Court. And the pair appeared in the NSW District Court for sentencing on 24 April last year.
The two offenders were both convicted with one count of importing tobacco products with the intent to defraud the revenue, contrary to section 233BABAD(1) of the Customs Act 1901 (Cth). This offence carries a maximum penalty of 10 years imprisonment.
Mr Kim was also convicted with one count of dealing in proceeds of crime worth $1,000,000 or more, contrary to section 400.3(1) of the Criminal Code Act 1995 (Cth). This federal offence can land an individual in prison for up to 25 years and they can be fined $315,000.
And a further offence in relation to Mr Kim’s attempt to obtain a new passport was taken into account on sentencing.
This was one count of making a false statement in relation to a foreign travel document, contrary section 18(1) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth). The maximum penalty for this crime is 10 years imprisonment and/or a fine of $210,000.
For his money laundering activity, Mr Yang was convicted of one count of dealing in proceeds of crime worth $100,000 or more, contrary to section 400.4 (1) of the Criminal Code. This offence carries a maximum penalty of 20 years behind bars and/or a fine of $252,000.
Sentencing in the District Court
NSW District Court Judge Penelope Wass said the smuggling operation was “sophisticated and well-planned.” She determined that the objective criminality of the offences was in the upper range of seriousness.
Her Honour found that both men played equally necessary roles in the criminal operation and their moral culpability was the same.
In relation to money laundering, her Honour noted that Yang’s offending was considerably less. It involved a much smaller amount compared with Kim’s. And Yang only carried out these activities for 3 months compared with the 22 month period that Kim spent dealing in the proceeds of crime.
Judge Wass sentenced both Kim and Yang to 2 years and 3 months imprisonment for the smuggling offence.
For his money laundering offence, Mr Kim was sentenced to 5 years gaol time, with a non-parole period of 3 year and 4 months. While Mr Yang was sentenced to 3 years behind bars, with a non-parole period of 2 years, for his money laundering offence.
Her Honour set the commencement date of Mr Yang’s dealing in the proceeds of crime sentence to begin 6 months after his sentence for smuggling began. The commencement date of Kim’s money laundering sentence was set to begin 18 months after his smuggling sentence.
So, Kim received a total prison sentence of 6 years and 6 months, with a non-parole period of 4 years and 10 months, while Yang’s total sentence was 3 years and 6 months, with a non-parole period of 2 years and 6 months.
Disparity in sentencing
On 4 April this year, Mr Kim appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on the single ground that there was a disparity between his sentence and that of Mr Yang’s, which had left him with “a justifiable sense of grievance.”
Mr Kim’s lawyer said that his client accepted he should receive a harsher sentence, as his dealing in the proceeds of crime offence was greater than Yang’s. But, there was no justification for him to serve a longer period of imprisonment for his smuggling conviction.
NSWCCA Justice Peter Garling explained that this ground of appeal was based on the principle of parity, which sets out that like cases be treated alike, and different cases be treated differently. So, co-offenders should receive similar punishment for similar offending.
“Equal justice requires that there be consistency in punishment,” his Honour said. “That is because unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice.”
The findings of the appeals court
Justice Garling found that while the sentencing judge was correct in imposing a harsher sentence in regard to Kim’s money laundering offence, the fact that the start date of the two offenders’ dealing with the proceeds of crime sentences were set at 12 months apart was troubling.
The two offenders played almost identical roles in the tobacco smuggling operation, his Honour said, so there was no reason for one to receive a sentence that was effectively one-third of the other, especially as Judge Wass had set out no reasons for why this was necessary.
This discrepancy, his Honour continued, gave “rise to a justifiable sense of grievance.” And due to this error, the periods of accumulation of both offenders should be brought into line, meaning the start date of Kim’s money laundering offence should begin 6 months after the smuggling sentence.
A further sentencing error
According to NSWCCA Justice John Basten, the “unwarranted disparity” in sentencing was “simply a mistake.” And then his Honour went on to point out another sentencing error that occurred in the District Court.
Under section 19 AB of the Crimes Act 1914, a court is required to fix a single non-parole period to an aggregate sentence, when imposing two or more sentences for federal offences, which result in an overall sentence of more than 3 years.
However, in this case, Judge Wass had applied a non-parole period to the second sentence, and not to the overall aggregate sentence.
On 27 April this year, Justice Basten ordered that the appeal be allowed and the original sentence be quashed. The court then sentenced Kim to the same head sentences for both offences as the District Court did, with the commencement date of the second offence beginning 6 months after the first.
The NSWCCA then set a non-parole period that applied to the aggregate sentence at 3 years and 10 months, which meant that Mr Kim is eligible to apply for release on parole 12 months earlier than his original sentence had allowed for.
NSW Justices Stephen Rothman and Peter Garling agreed with the orders.