Kim v R [2018] NSWCCA 68

Kim v R [2018] NSWCCA 68

The unexplained difference between accumulating Mr Yang's second sentence by 6 months and the applicant's second sentence by 18 months was not justified by differences in culpability or by the principle of totality. The greater seriousness of the applicant's money offence was properly reflected in the longer head sentence for that offence, but the additional accumulation created an objectively unjustified disparity giving rise to a justifiable sense of grievance. The sentencing structure also failed to comply with the Crimes Act 1914 (Cth) because a single non-parole period for the aggregate federal sentences was required and had to commence with the first sentence.

Jurisdiction
Australia
Judgment Date
27 April 2018
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted; appeal allowed; sentences quashed; applicant resentenced.
Legal Topics
['parity Principle' 'totality' 'non Parole Period for Multiple Federal Sentences' 'importing Tobacco Products With Intent to Defraud the Revenue' 'dealing With Money Which Could Become the Instrument of Crime']
['criminal Law' 'sentencing' 'federal Offences'] ['parity Principle' 'totality' 'non Parole Period for Multiple Federal Sentences' 'importing Tobacco Products With Intent to Defraud the Revenue' 'dealing With Money Which Could Become the Instrument of Crime']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether there was a disparity between the sentence imposed on the applicant and the sentence imposed on co-offender Hanyeol Yang such as to leave the applicant with a justifiable sense of grievance.' "Whether the sentencing judge erred by accumulating the applicant's second sentence 18 months after the first sentence when the co-offender's second sentence was accumulated by 6 months." 'Whether a single non-parole period was required for multiple federal sentences and whether it had to commence on the first day of the first sentence.']

Ratio Decidendi

The unexplained difference between accumulating Mr Yang's second sentence by 6 months and the applicant's second sentence by 18 months was not justified by differences in culpability or by the principle of totality. The greater seriousness of the applicant's money offence was properly reflected in the longer head sentence for that offence, but the additional accumulation created an objectively unjustified disparity giving rise to a justifiable sense of grievance. The sentencing structure also failed to comply with the Crimes Act 1914 (Cth) because a single non-parole period for the aggregate federal sentences was required and had to commence with the first sentence.

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed; applicant resentenced.

Orders

  • ['Grant the applicant leave to appeal against the sentences imposed on him in the District Court at Darlinghurst on Monday 24 April 2017.' 'Allow the appeal and quash the sentences.' 'With respect to count 1 (defrauding the revenue) and taking into account the offence on the Schedule (making a false statement in...