DPP v Kim [2024] VCC 553

1. Ahn Sup Kim, you have pleaded guilty to one rolled-up charge of sexual assault for which the maximum penalty is a term of imprisonment of 10 years. The charge encompasses nine instances of sexual touching albeit within a relatively confined time period.

1. The victim of your offending is Jung Joonho.[1] At the time you sexually assaulted her she was a 26-year-old student from Korea working as a hostess in a karaoke club. The role of a hostess does not include sexual services, which you fully understood.

1. At about 11 o'clock on the evening of 26 September 2017, you arrived at the club where you had booked a private karaoke room. You eventually chose Ms Joonho as your hostess. Over the ensuing hours you sat together, talked and drank some whiskey.

1. Shortly after 3.28 am on the morning of 27 September 2017, Ms Joonho began to feel sick and lethargic and she struggled to keep her eyes open. You touched her breasts over her clothing and kissed her on the lips. Although she was aware of what you were doing, she could not move and was unable to stop you.

1. You then touched her vagina over her pants. After a short time, you spread her legs apart and once again touched her vagina over her pants. While you were doing these things, she was still slumped over and she was unable to move.

1. You put your right hand down the front of her pants and into her underwear. At that point, she attempted to grab your hand to stop you from putting it down her pants, however, she was unable to do so. Moments later, she lost control of her body.

1. You put your left hand inside her singlet top and bra and touched her breasts.

At this stage, her body was limp and she appeared to be barely conscious. She slid off the couch to the point she was almost on the floor. You continued to rub her vagina and you also kissed her at the same time.

1. You eventually ceased touching Ms Joonho and removed your hand from her underwear. Her slumped body slid off the couch and onto the floor. You picked her limp body up from the floor and dragged her back onto the couch. As she lay there in what appeared to be a state of unconsciousness, you again touched her vagina over her pants.

1. You moved her into a position where she was sitting. You then held her in that position and kissed her once again. She awoke momentarily and attempted to push you away, however, she was not able to do so. She then appeared to become unconscious and you released your hold on her.

1. Shortly after you left the room and you left the club.

1. On 16 November 2017, Ms Joonho went to police with CCTV footage of the incident which she had viewed at the club and had recorded on her mobile phone, and which she provided to police. This footage was played and tendered at your plea.

1. On 18 January 2018, you attended the Melbourne West police station where you participated in a formal record of interview. During that interview, you denied the offending.

1. During the interview, police showed you a photograph depicting you touching Ms Joonho between her legs with your left hand on her breast while she appeared to be unconscious. At that point, you admitted that:

(a) Your left hand was, 'Around the breast';

(b) Your right hand was touching her, 'inner thigh' but not touching her vagina; and you said

(c) Ms Joonho, '...wasn't extremely alert', and that, 'I wouldn't say she was totally knocked out at the time'.

1. When asked if Ms Joonho had consented to you touching her, you replied, 'She didn't push me out', and, 'She didn't say get away or she didn't at any moment - didn't push me out or anything like that'.

1. Towards the end of the interview, you were shown photographs from the CCTV footage. At that stage, you admitted that:

(a) You think you touched her vagina with your hand inside her pants but over her underwear;

(b) you touched her, 'up to the pubic hair';

(c) your right hand is inside her bra;

(d) that you touched her breast;

(e) that you considered the touching sexual in nature; and

(f) Ms Joonho did not look responsive and '...she was quite unresponsive'.

1. When asked whether Ms Joonho was conscious when you touched her, you responded, 'Probably not' and that she was 'unconscious'. You stated that she vomited and that you got a bin for her to vomit in.

1. You were charged on 13 June 2019. This matter ran to trial. At your trial it was alleged that you had drugged your victim and had raped her by inserting your finger into her vagina.

1. You were indicted on one charge of administering a drug for sexual purposes, six charges of sexual assault and one charge of rape. You were acquitted of the

charge of administering a drug for sexual purposes and convicted on all other charges.

1. The sentences imposed by His Honour Judge Tinney were as follows:

Charge 2 - touching on the outside of the breast - you were convicted and sentenced to two months' imprisonment.

Charge 3 - kissing on the lips - you were convicted and sentenced to one month's imprisonment.

Charge 4 - touching over the vaginal area above the clothing - you were convicted and sentenced to four months.

Charge 5 - touching the vagina below the clothing - you were convicted and sentenced to nine months.

Charge 6 - touching her breast under her clothing - you were convicted and sentenced to five months' imprisonment.

Charge 7- digital rape - you were convicted and sentenced to seven years and three months' imprisonment.

Charge 8 - touching her vaginal area on the outside of the clothing after dragging her back up on to the couch - you were convicted and sentenced to four months' imprisonment for that offence.

1. Charge 7 was the base charge. There was one month of the sentence on Charges 4, 5 and 6 to be served cumulatively upon Charge 7 and upon each other, giving a total effective sentence of seven years and six months with non- parole period of five years. You were sentenced as a serious sexual offender on Charges 4 through to 8.
2. You appealed your conviction and sentence. Your conviction appeal was successful whereupon you were released from custody after having served 539

days' imprisonment. A retrial was ordered, however this matter resolved to a plea on the current charge on 5 December 2023 and you were arraigned on 20 December 2023.

1. Ms Joonho has made a victim impact statement. She says she is not the same person she was before your offending. She says she no longer trusts people and finds it hard to make new friends. She says she could no longer work after your offending and had to return to Korea to be supported by her family.

1. You were born in July 1969 in South Korea. You are presently 54 years old. You were 48 years old when you committed this offending. Your father was a surgeon in South Korea and your mother a home maker. The family emigrated to Australia in 1983 when you were 14. Your parents returned to South Korea in 1987 and then later returned again to Australia. Both your parents are now deceased.

1. You remained in Australia and completed your education first in Melbourne then in Sydney. You were a gifted student, you finished first in the state for music theory in your Year 12. You completed a Bachelor of Medicine and a Bachelor of Surgery at the University of New South Wales in 1997. You completed a Master of Medicine at the University in Seoul in 2004 and obtained a doctorate from the same university in 2007.

1. In 2010 you became a member of the Australasian College of Cosmetic Surgery. You conducted a private practice in Sydney and Melbourne.

1. You married your wife in 1999. You have three children.

1. You have no prior criminal history and were hitherto a person of good character and good standing in the medical profession.

1. A number of character references were tendered at your plea.

1. First, your wife, Kyeong Mee Peik, says you are a person of kindness and honesty. You support charitable causes and have selflessly dedicated yourself to your work in order to provide for your family. She says you are a positive force in your children's lives.

1. Secondly, your son Jaejin says you are a hardworking and compassionate doctor. He says you have the unwavering love and support of your family. He says you have shown resilience despite struggling with depression and the loss of your job and reputation.

1. Thirdly, Heidi Low says you are a friend and a former employer, and she has also been your patient. She says she has known you since 2011. She says you have always acted in a respectful, empathetic and professional manner.

1. Finally, Father Christopher Slattery, who is the parish priest at St Mary Magdalene at Rose Bay, says he has known you since his appointment in 2016. He says you are a committed Christian who loves and supports his family. He says you have been a generous parishioner and are well-regarded by fellow parishioners.

1. Dr Lee of the Glory Medical Centre in Lidcombe says he has been treating you for 13 years. He says you are suffering anxiety and depression and he is prescribing you a maximum dose of an anti-depressant. He says as long as you continue with your medication your prognosis is good.
2. Dr Zhen Zhang, forensic psychiatrist, says Dr Lee referred you to him on 29 July 2020 and you have had seven subsequent appointments between August 2020

and August 2021. He says after your initial appointment he formed the opinion you suffered from a major depression and he prescribed anti- depressants. He felt you were at risk of self-harm.

1. I begin with the submissions in mitigation of sentence by your counsel Mr Dann and Ms Parsons.

1. First, you offered to plead guilty to three charges of sexual assault encompassing all the conduct captured now by your plea, on 11 February 2020. Mr Dann submitted this is a plea at the earliest opportunity and its timing attracts a Worboyes1 discount of the highest magnitude as this was at the height of the pandemic and the disruption to the administration of criminal justice. Mr Dann submitted the fact that there was a subsequent trial and appeal did not affect this. The prosecution could have re-tried you had they chosen to do so.
2. Secondly, your prior good character and lack of a criminal history. You fall to be sentenced as a middle-aged first time offender with no prior or pending criminal matters.

1. Thirdly, on the significant delay, occasioned in the main by the COVID pandemic, during which time you have demonstrated your rehabilitation and which also has a caused you unfairness in that you have had this matter hanging over your head now for over six years and as the medical material demonstrates, it has taken a considerable toll on your mental health.

1. Fourthly, you have suffered extra-curial punishment in the form of loss of your reputation and your registration as a medical practitioner is suspended and potentially will be revoked. There will be future proceedings in VCAT which will ultimately determine your professional fate. You have also been the subject of

1 Worboyes v The Queen [2021] VSCA 169 ("Worboyes")

adverse media coverage which has labelled you a rapist, which is no longer the case, but which remains and will remain available to view online indefinitely.

1. Fifthly, Mr Dann submitted you have excellent prospects of rehabilitation given your prior good character, family support and your high achievement in your profession.

1. Sixthly, the difficult conditions you experienced in custody when you served 539 days during the period of COVID-19 restrictions.

1. On the question of the appropriate disposition, Mr Dann submitted in accordance with the principles of resentencing after a successful appeal2 where ordinarily the sentence imposed at first instance should be regarded as a ceiling, in this case I should regard the three months' cumulation in respect of the sexual assault charges imposed by Judge Tinney as that ceiling.

1. Defence referred me to the case of Macfie (No 2)3 in which an offender was sentenced to a higher sentence after retrial after being convicted on fewer and less serious charges.

1. Defence submitted the case, that is Macfie, 'demonstrates that the application of the ceiling principle will take into effect the practical impact of the original sentences and give consideration as to whether that practical impact should be moderated in the resentencing exercise'.

1. Mr Dann urged me to consider sentencing options other than imprisonment here, relying on the matters in mitigation and also in consideration of the potential consequences for your employment in the future.

2 DPP v Ty (2009) 24 VR 708

3 R v Macfie (No. 2) [2004] VSCA 209; (2004) 11 VR 215 ("Macfie")

1. He submitted given you are a resident of New South Wales there are practical difficulties with the imposition of a community correction order and I can say now that I agree with that submission.

1. He submitted in your case an appropriate disposition could be an adjourned undertaking with a conviction. He referred to a number of cases where either a corrections order or an adjourned undertaking in each case without conviction was imposed in a case of sexual assault.4
2. On behalf of the prosecution Mr Fisher submitted that you have committed a serious offence with several aggravating features. You assaulted the victim in her place of work, where she was vulnerable and alone in a room with you. You did so when she became unwell and did not appear to be conscious. You committed a number of acts over a period of time. Mr Fisher submitted I should regard your offending as disgusting, humiliating and degrading and committed for your own sexual gratification. Mr Fisher submitted I should regard this as a serious example of the offence of sexual assault and that I should assess your moral culpability as high.

1. I turn now to my own assessment of the objective gravity of your offending and your moral culpability.

1. In my view this was a very serious example of the offence of sexual assault. It encompasses nine discrete acts of sexual assault over a period of some minutes on a young woman at her workplace. She was vulnerable being alone with you and even more so when she became observably ill and collapsed. Instead of helping her you callously took advantage of her. Why you, a middle-aged man of hitherto good character and standing in the community, behaved this way

4 DPP v Debenham [2021] VCC 949; DPP v Thanh (a pseudonym) [2019] VCC 1097 (19 July 2019);

DPP v Fern [2021] VCC 1950 (29 November 2021); DPP v Phasey [2018] VCC 988 (22 June 2018).

remains largely unexplained. Being alcohol-affected and disinhibited explains your behaviour only to some extent. Clearly you sought sexual gratification. You treated Ms Joonho as a sexual object. I accept the prosecution submission that your behaviour to Ms Joonho can be described as humiliating and degrading.

1. One of the benefits to you by virtue of your plea of guilty is you are to be sentenced on this charge in accordance with a single maximum penalty, however in assessing the gravity of the charge and your moral culpability I take into account that it involves multiple incidents and the sentence I impose must be reflective of the full criminality of your offending.

1. I regard your moral culpability for this offending as high.

1. Turning now to the application of the relevant sentencing principles.

1. First your plea of guilty. I accept the submission of your counsel that it is a plea at the earliest opportunity and occurred at the height of COVID delays. It therefore has significant utilitarian value and entitles you to a Worboyes discount and a Worboyes discount that is reflective of the magnitude of plea discounts at what was the height of the pandemic. Your plea acknowledges your criminal responsibility and I accept is indicative of some limited remorse on your part. In the material I have, however, you have not apologised to Ms Joonho nor expressed any real concern for her well-being. I do not find that you have demonstrated any full or insightful remorse.
2. Notwithstanding this, I accept the defence submission that your prospects of rehabilitation are good and your risk of reoffending is low. I make this assessment in light of your prior good character and your ongoing family support and support in the broader community.

1. The delay in this matter has also allowed you to demonstrate that you are in fact rehabilitated. I take into account also the unfairness that delay has occasioned in this matter and the time you spent in custody when conditions were very restrictive due to the pandemic.

1. You have suffered extra-curial punishment. You have lost your reputation, and potentially your career, although this remains uncertain. These considerations are relevant to the assessment of what constitutes just punishment in your case.

1. You have committed a serious crime which is a legitimate topic of public discussion, and which will inevitably attract some degree of public opprobrium. However, I accept the publicity in your case has caused you some unnecessary distress and I will allow for some modest mitigation of sentence in the exercise of my discretion.

1. I have considered all of the comparator cases provided by defence. In my view each of the cases involves an objectively much less serious example of the crime of sexual assault and in three of the cases5 I note the offender was a young or youthful offender, attracting the sentencing principles relevant to the sentencing of young offenders, and which are clearly not relevant to the sentencing exercise here.
2. Perhaps the most complex part of this sentencing exercise has been the application of the principle of resentencing after appeal. I reject the defence submission that the three months' cumulation imposed on the rape charge by Judge Tinney is the ceiling in resentencing you.

1. In my view I am sentencing you in a completely different sentencing landscape. The differences between the sentence imposed by Judge Tinney and the sentence I will impose are obvious.

5 DPP v Debenham [2021] VCC 949; DPP v Fern [2021] VCC 1950 (29 November 2021); DPP v

Phasey [2018] VCC 988 (22 June 2018).

1. First, the charge of rape which was the base charge is gone.

1. Secondly, I am sentencing you for a single rolled-up charge which was not a charge upon which Judge Tinney sentenced.

1. Thirdly, there is no application of the serious sexual offender provision.

1. And finally, I am sentencing you upon a plea and not after a trial.

1. The case of Macfie (No 2) is not analogous to the situation here and provides no real assistance to me. In my view, that case where the appellant received higher sentences upon retrial for fewer and less serious convictions, concerns a more conventional example of the application of the principles of sentencing after retrial. In his judgment, Justice Eames refers to the policy objectives which underlie why courts should not encourage the increasing of sentences after successful defence appeals and which is to avoid the undesirability of discouraging meritorious appeals by promoting a fear of increased sentences.6 This, of course, cannot be the case here, where the sentence I will impose must inevitably be considerably lower than that imposed by Judge Tinney because the charge of rape is gone. It follows the sentence I impose cannot possibly offend the policy objective of the principle of resentencing after appeal which is not to curtail the right of appeal.
2. I must impose a sentence which is an appropriate sentence to you, taking into account your personal circumstances and all the matters I am required to under the Sentencing Act.

1. Notwithstanding the matters raised in mitigation, given the seriousness of your offending and to give proper expression to the sentencing principles of general deterrence, denunciation and just punishment, a sentence of imprisonment is the only appropriate sentence in your case.

6 R v Macfie (No. 2) [2004] VSCA 209; (2004) 11 VR 215 at [99]

1. On Charge 1 you are convicted and sentenced to 12 months' imprisonment

1. Pursuant to s18 (4) of the Sentencing Act you have served 539 days of the sentence and that is to be entered into the records of the court.

1. But for your plea of guilty I would have sentenced you to a sentence of three and a half years' imprisonment with a non-parole period of two years.