Kim v R [2018] NSWCCA 254 | Case summary

The sentencing judgment

The facts as to the nature of Mr Kim's offence and his personal circumstances were not in issue.
There was CCTV footage of Mr Kim following his victim and the assault was also witnessed. The victim's handbag was valued at some $200 and contained about $10 cash.
The victim was admitted to hospital, where she was found to have suffered a nasal bone fracture and bruising and swelling to the face and eye so severe, that she struggled to keep her left eye open. Grazes on her left upper eyebrow were also painful, as were her teeth, which made it painful for her to eat. Her left arm was also painful and the top of her head sore to touch. She also suffered superficial grazes to her temporal area and to both knees, as well as a haematoma. She was prescribed antibiotics to prevent infection to her eye.
Mr Kim was identified by police on 23 July 2016 and arrested at his home on 31 August, where a search warrant was executed. He was interviewed with the assistance of a Korean interpreter and shown the CCTV footage. He then made no admissions, claiming that he had no memory of the date at all and that he would often come home from a night out drinking, with little recollection of how he got home. The results of DNA testing of the victim's coat could not exclude him as a contributor and he later entered his plea.
In his sentencing judgment, Scotting DCJ outlined the circumstances of the assault, before turning to consider the evidence as to Mr Kim's personal circumstances, which were that he was aged 37 and had come to Australia in 2006 from South Korea. He had good relations with his family and his partner in Australia, but no children. He reported struggling with a previous gambling addiction, from which he had abstained for more than 12 months, as well as daily alcohol abuse from age 26 and being intoxicated at the time of the offence.
The presentence report revealed Mr Kim's intention to maintain abstinence from alcohol and his pursuit of alcohol and drug counselling in the SMART recovery program, in 2017. The report noted that his violent offending was out of character; that Mr Kim was horrified by what he had done; that he had acknowledged the seriousness of his offending and expressed regret for his actions and a willingness to pursue further counselling. He also reported having been frustrated by the loss of an alleged sum of money provided to him by his parents, in a failed business venture.
Mr Kim was assessed to be at low to medium risk of re-offending and unlikely to benefit from supervision and suitable to complete community service work.
His Honour also noted the September 2017 report of the psychiatrist Dr Colquhoun, to whom Mr Kim had given a similar background to that earlier outlined; reported having no recollection of the offending; and that this was not the first time he had experienced blackouts secondary to severe intoxication. Mr Kim also expressed his inability to understand his offending and his remorse, having never assaulted anyone else and having no history of violence. He said that he had written the victim a heartfelt apology and accepted that she had suffered mental and physical trauma and would be fearful of going out at night in future. But for his financial hardship, he would have offered to pay for a psychologist to help her overcome this experience.
Mr Kim was studying while in immigration detention, where he was supported by his family and girlfriend, an accountant. On release, he hoped to use a recently obtained real estate certificate to find work or continue his previous employment, or to teach swimming. He also planned to marry his girlfriend and had become more active in his church, for which he wished to work after his marriage.
Mr Kim denied ongoing problems with alcohol and said that he was focused on relapse prevention. He explained that in Korea there was a strong drinking culture and because of his loneliness and business problems, he had found himself drinking with Korean friends in Sydney, with his drinking becoming more frequent and problematic over time, until in 2016 he was drinking every evening with friends at Korean restaurants. In 2009 he had begun having problems with gambling, estimating that he had lost $50,000 at casinos.
Mr Kim had come to Australia on a student visa in 2006, before returning to complete his degree in Korea in 2007 and then returning to Australia in 2008, to start a bachelors degree in radiation therapy at Sydney University. After a year he transferred to a masters degree in diagnostic radiography, which he completed in 2011, but he could not find work.
Mr Kim took up employment as a practice manager for a cosmetic surgery company, but that did not permit him to pursue permanent residence. He then worked for Aldi, becoming general manager of five warehouses. In 2013 he had been offered a place at University of Western Sydney to study to become a doctor and needed money to pursue that study.
He was persuaded to invest in a business opportunity, for which he paid $30,000, which was not returned to him. That job ended in 2015 and he lost another $25,000 in another failed investment. He completed a certificate in real estate while working in the sales department at Vodafone at the time of this offending, while he was very depressed, having accumulated debts of over $60,000, financed by his parents having taken out loans in Korea. They were struggling to make repayments.
Mr Kim's student visa had expired, he was refused another and a criminal justice visa was also declined, with the result that in July 2017 he was detained at the Villawood Detention Centre.
His Honour noted Mr Kim's prior criminal record, which he considered was not particularly relevant, apart from the offending related to alcohol use which appeared as early as 2009.
His Honour noted that the psychiatrist had assessed him as a low risk of recidivism, for reasons including his pursuit of rehabilitation, the stable influences of his partner and his religion, which were strong enough to support him to cope with future stressors. The psychiatrist considered him to be a naïve and impressionable young man living in a culturally foreign environment and despite his considerable intellectual capacity, he had a maturity level short of his age. His offending behaviour had been financially motivated whilst intoxicated. The psychiatrist also assessed his main risk factor to be a return to alcohol use and recommended pursuit of rehabilitation to prevent relapse.
Scotting DCJ also noted that Mr Kim had written to him and the supportive documentation which had been tendered. He also took into account evidence Mr Kim gave about having given up alcohol and pursued rehabilitation programs, the effect of this and of an assault which he had suffered while in detention. Mr Kim, again, expressed his remorse, explaining the apology he had made to the victim and his plan to become involved in Alcoholics Anonymous, as a facilitator for Korean people and a bible teacher. In cross-examination, Mr Kim could not remember the circumstances of the offending but did not deny that it was for financial gain. He also accepted the seriousness of his offence.
Scotting DCJ also noted that Mr Kim's partner was supportive of him and described her evidence of shock and sadness over his offending, which was out of character. He also outlined evidence given by the Venerable Sunim Boan, a Buddhist monk of some standing, who offered Mr Kim spiritual support. Scotting DCJ accepted that Mr Kim had committed himself to his religion and found some solace in it. He also accepted Mr Kim's commitment to rehabilitation.
Objectively, His Honour found that the offence fell below the mid-range of seriousness, but not at the lowest end. The offence involving the violence that it did, was an aggravating factor, but while it was a painful and traumatic experience for the victim, account had to be taken of the fact that it was short lived and did not result in lasting physical injury, although there was some long lasting mental trauma and the property taken was not of substantial value. His Honour did not give the motive of financial gain much weight, because of Mr Kim's level of intoxication.
Scotting DCJ concluded that general deterrence was of significance, one of the main purposes of punishment being to protect the public from the commission of crimes, by making it clear that they will be met with significant punishment. He concluded that Mr Kim's addiction did not reduce his moral culpability and that there was also a need for specific deterrence, although that was substantially reduced by his good prospects of rehabilitation and his unlikelihood of reoffending, if that rehabilitation continued.
Mitigating factors taken into account included the lack of planning, demonstrated remorse, Mr Kim's good prospects of rehabilitation and unlikelihood of re-offending, in circumstances where the offence resulted from intoxication, stemming from his alcoholic use disorder.

Ground 2 - the sentence was manifestly excessive

Mr Kim's offence attracted a maximum penalty of 20 years imprisonment and before discount, the sentence imposed upon him began at 4 years. With a finding of special circumstances, the statutory ratio specified by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was reduced to 50 percent his Honour concluding that Mr Kim would benefit from a longer period on parole, given his need for rehabilitation and resolution of his gambling addiction.
As recently explained in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Mr Kim did not challenge his Honour's conclusions as to the objective seriousness of his offence, or his other observations about what the evidence established. He rather advanced this ground of appeal by reference to the sentence imposed in Renshaw and the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, which the sentencing judge said he would apply.
Reliance was also placed on R v Tortell [2007] NSWCCA 313, where a Crown appeal against inadequacy of sentence was dismissed, that being a case concerning a robbery committed by offenders with no prior criminal records, where a sentence involving community service was imposed and the guideline judgment in Henry arose for consideration. While error was there identified, the Court exercised its residual discretion not to interfere in the sentence imposed.
In Renshaw, an offence under s 95 of the Crimes Act also arose for consideration. Mr Renshaw was re-sentenced to imprisonment with a non-parole period of 12 months and a balance of term of 10 months to expire on 4 January 2013, also after a 25 percent discount. The appeal succeeded, because it was agreed that there had been error because his Honour had not taken into account a period of quasi custody which Mr Renshaw had spent at a rehabilitation centre, which amounted to quasi custody, in imposing a sentence of 22 months with a non-parole period of 12 months, after a discount of 25 percent. This reflected a starting sentence of around 30 months.
Mr Kim contended that his subjective circumstances were more favourable than those of Mr Renshaw, given his genuine remorse, strong commitment to rehabilitation and Christian activities, and his commitment to staying sober and not offending further, which his faith had assisted with.
His prospects of rehabilitation were also better than those of Mr Renshaw, given the remarkable efforts he had pursued to rid his life of crime; that the property involved in his offence was less ($210 rather than $400-$700) and the levels of the injuries suffered by the victims similar.
Mr Kim contended that his Honour erred in not referring to what was decided in Renshaw, which involved similar circumstances which arose for consideration in his case. Further, that he ought not to have followed the approach in Henry, which would have resulted in a sentence of under 2 years imprisonment being imposed upon him.
Scotting DCJ made no reference to what was decided in Henry, although it was addressed in submissions, when Mr Kim was represented. The case then advanced was that his offence was serious and the victim traumatised, but that he had run off the rails as the result of a great deal of unhappiness in his life. He was truly regretful and had worked significant changes in his life, to mitigate his offending, which was impulsive and unsophisticated. His record was not unblemished, but had not involved serious violence and his offence was out of character, that being the result of his extreme intoxication. He also had good prospects of rehabilitation and presented a low risk of further offending.
It was not then in issue that the guideline judgment in Henry did not apply in Mr Kim's case, but reliance was placed on it to advance the submission that his sentence "could be accommodated with a total sentence of two years", to enable a non-custodial sentence being imposed upon him. It was noted that caution which had to be taken in a case such as this in applying Henry, because as discussed in Tortell at [14] care must be taken when it is sought to apply the Henry guidelines to other offences.
His Honour thus queried applying Henry 'to some extent', given the extent of the violence involved in Mr Kim's offending which made Mr Kim's offence more serious than the kind dealt with in Henry, because of the actual bodily harm he had inflicted on the victim. For Mr Kim reliance was then placed on him not having used a weapon and his compelling personal circumstances.
The Crown did not accept the submissions advanced for Mr Kim, arguing that given the considerable violence involved in his offending, his primary motivation being financial and his offending having involved some planning, notwithstanding his intoxication. It contended that a custodial sentence had to be imposed. Further, that a custodial sentence of over 2 years was required in the circumstances, given the considerations under s 3A of the Crimes (Sentencing Procedure) Act which had to be taken into account.
I am not satisfied that his Honour erred in the way for which Mr Kim contended.
Despite the similarities of the offending which arose for consideration in Renshaw, there were relevant differences in both the objective and subjective matters which arose for consideration in Mr Kim's case. That included the residential rehabilitation which Mr Renshaw had undertaken and the less serious injuries which he inflicted on his victim. Account also had to be taken of Mr Kim's record, which included a mid-range PCA offence committed while on bail in December 2016.
As discussed in Vandeventer v R [2013] NSWCCA 33 at [45], cases where offenders appear to have been dealt with more leniently or more severely than the applicant seeking leave to appeal on sentence can always be found. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant seeking leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.
This offence involved an aggravated robbery committed against a stranger in the early hours of the morning after the victim had left public transport. This Court has emphasised the need for substantial punishment in the case of violence against citizens on or in the vicinity of public transport. Persons who use public transport at night should be considered as vulnerable and to be protected by sentences imposed by the courts: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [207]-[208].
The Court may not intervene on the ground that a sentence is manifestly excessive, merely because it is different from sentences that have been imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
As far as comparisons with Henry are concerned, his Honour did not err in the consideration which he gave to the seriousness of the injuries which Mr Kim had inflicted, or that this was offending committed by a person who was not a young offender, as his Honour observed, albeit an immature one. These considerations were properly reflected in the sentence imposed.
In the result, it cannot be concluded that the sentence was manifestly excessive.

Kim v R

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Cases Cited (25)