Kim v R

GROUNDS OF APPEAL

1. The applicant relies upon two grounds of appeal: 1. There was insufficient disparity between the sentences imposed on the applicant and his father such that the applicant has a justifiable sense of grievance. 2. The sentence imposed on the applicant is manifestly excessive.
2. The facts of the offence committed by the applicant together with his father were presented to the sentencing judge as two statements of agreed facts one relating to each offender. Whilst slightly different in terms his Honour found no relevant difference affecting his sentencing exercise.
3. It is necessary to set out in full the statement of agreed facts relating to the applicant, as it includes relevant details of the applicant's participation and thus the overall criminality entailed in his role in the offending: "1. The offender (Sung Sub Kim [aged 48 years] is the biological father of the offender Gyu Tae Kim [aged 22 years]. 2. On 4 May 2016 Mrs Susan Jiang [aged 47 years] was at home alone at 2 Turner Avenue, Baulkham Hills. 3. At about 11:30 am Gyu Tae Kim was dropped at the victim's home by Sung Sub Kim. He rang the doorbell and Mrs Jiang answered to [sic] the door. She saw Gyu-Tae Kim standing at the front door. 4. Mrs Jiang recognised him as the son of Sung Sub Kim whom she had known for about ten years through her husband. 5. Gyu-Tae Kim said that he had been working nearby on a tiling job and wanted to say hello. They spoke for about 30 minutes and Gyu Tae Kim left. 6. After he left Gyu Tae Kim spoke with Sung Sub Kim and told him that Mrs Jiang was home alone. They went back to the house together with the intention of committing the offence. 7. About thirty minutes later Gyu Tae Kim approached the house alone and rang the bell a second time. Mrs Jiang answered the door and Gyu Tae Kim asked her not to tell his father that he had been there. While they were having this conversation Sung Sub Kim arrived at the house driving a van. 8. Sung Sub Kim said he was thirsty, asked for a glass of water and repeatedly asked Mrs Jiang whether her husband was home. Mrs Jiang was somewhat concerned at the questions and locked the screen door before going to the kitchen. She returned with a glass of water for each offender. She unlocked and opened the screen door and handed the glasses to them. They drank the water and Sung Sub Kim pushed her backwards into the house and into the living room. It is that act that amounts to the "break". 9. She was pushed to the ground face down and Sung Sub Kim put his hand over her mouth and said "don't do anything. Don't scream if you do I will go further. Just be calm I don't want to go further". He also said "before I came to the house I was going to kidnap you. Call your husband and ask for money. That's why I brought my van but when I got here I changed mind. So don't try anything, don't scream". 10. Sung Sub Kim pulled Mrs Jiang's arms behind her back. (Gye Tae Kim had a roll of black duct tape taken from their van, he tore a strip off and handed it to his father. Sung Sub Kim taped Mrs Jiang's hands and legs together. He also loosely placed tape around her mouth and put a plastic shopping bag over her head for a short time before removing it at her request because she was unable to breathe. 11. Sung Sub Kim asked her where the main bedroom and the money was. She said that they didn't have any money and he asked where the safe was. In fear Mrs Jiang told him it was in a room next to the main bedroom and gave him the pin code. 12. Sung Sub Kim gave the code to his son. Using that code Gyu Tae Kim opened the safe and stole approximately $4000 AUD, $9000 NZD [worth approximately $8500], $400 USD, 4000 Chinese Yen [worth approximately $770 AUDI, 40,000 Korean Won [worth approximately $45 AUDI. The total amount stolen was the equivalent of approximately $13,800. 13. Sung Sub Kim asked Gyu Tae Kim "Do you have everything?" to which Gyu Tae Kim replied "Yes". Sung Sub Kim also said to Gyu Tae Kim, "You get out of here first". Gyu Tae Kim left the house to wait in the van for his father to come back. 14. Sung Sub Kim told her that the amount of money in the safe was not enough, that his family was in danger and he needed $70,000. He said that she could report the matter to police in a week and that she was not to tell the police that his son had been involved. He threatened to return to kill her if she implicated his son. He told her that he would confess to police in one week. 15. Sung Sub Kim told her that he would call her husband and left behind a business card in the name of Shane Kim [the English name used by Sung Sub Kim] on the table. That business card was later recovered by police. 16. Before leaving Sung Sub Kim removed the tape from the arms and legs of Mrs Jiang and apologised to her. 17. Mrs Jiang immediately contacted her husband. After consultation with their pastor Mr and Mrs Jiang reported the matter to police that afternoon. 18. That afternoon Sung Sub Kim sent a series of text messages message [sic] to Mr Jiang in Korean which was later translated as meaning: 3:26 pm Big brother I have sinned a lot against you until now... All the time I have spent with you at either Hanwoorideung Church and other places has been good to me. The sins I have committed against your wife. I do wish you and your children happiness. I will really pay off all the debt I owe you before I die. Thankyou. 3.43 pm Big brother I will visit your home a week later and return all the goods just as they are. Please report then if you must. I am pleading with you. 3:47 pm It has to be just me to end it all. Please let me die after I as the head of my family ensure they can survive. If I am caught now, not only I but also my family will die. Please me alone die. I am pleading with you. Police attendance 19. Mr Jiang reported the matter to police who attended a short time later. 20. Attending police noted that the safe door was open and a business card in the name of Shane Kim was on a bedside table. The mobile number on the card was 0434 548 215. That is the mobile phone number of Sung Sub Kim. 21. Police seized the water glasses used by the offenders. Subsequent forensic testing on one of those glasses showed a DNA profile consistent with Gyu Tae Kim. Testing on the other glass was unsuccessful. Arrest and interview 22. On 5 May 2016 (the following day) police attended 17/150 Dean Street Strathfield South. Both offenders were present and were placed under arrest. 23. At the time of arrest police took a mobile phone from Sung Sub Kim. Analysis of that phone later conducted showed the text messages sent to Mr Jiang the afternoon before. 24. Police asked Sung Sub Kim where the property from the house was located. Sung Sub Kim directed them to a bag in the garage. In the garage they found a bag containing a number of items including receipts and cards in the name of the victim; birth, marriage and citizenship certificates of the Jiang family and passports of each member of the Jiang family. 25. None of the money (in any currency) taken from the safe was in the bag. None of that money has been returned to the victim. Interview Sung Sub Kim [father] 26. Later that day Sung Sub Kim participated in an interview with police. He made the following admissions: • That he went to the house that day with his son and asked for water • That he pushed Mrs Jiang to the ground • That his son got some tape and taped the victim's hands behind her back, her feet together and put tape over her mouth • That, while she was bound in her bedroom, he had told her he needed money and asked her for the PIN number to the safe. The victim was crying at this point. • That he told his son the code and his son opened the safe • He told his son to take the contents of the safe • That in the safe was multiple currencies • That he took the tape off before he left the house • That before he left the house he asked the victim to give him seven days to repay the money • That he asked the victim no to report the matter to police • That he left a business card behind • That after he left the house he drove and converted the money into Australian dollars. He said he received approximately $10,000 AUD. • He said he used some of the money to pay wages, that he gave some money he owed to friends and some to his wife and some to his son • He said that the money he had taken was all gone • He said he had first thought of doing a robbery two weeks earlier but had only decided to go to this house that day. • That he had sent the message of apology to the victim's husband He denied making any threats to harm the victim's family. He said that at the time of the offence he had not been paid, had received a final warning to pay from a real estate. agent and committed the offence because he needed the money. Interview Gyu Tae Kim [son] 27. The same day Gyu Tae Kim participated in an interview with police. He made the following admissions: • That his father dropped him off at the house before he made the first approach • That after the first conversation he told his father that the victim was at home alone • His father said that they would go back to the house and he would "do it". He understood that to mean that there would be a stealing of property and went back to the house with his father. • That they were talking to the victim on her doorstep and his father grabbed her and took her upstairs to the bedroom • That he watched his father tape up the hands and feet of the victim • His father gave him the code to the safe, he opened the safe and took everything out of it • That after the offence they went to the bank to. convert the money into Australian dollars • That his father gave him $1300. He gave $500 to his mother and banked $700."

Findings by the sentencing judge

1. The sentencing judge dealt with both offenders together within one set of Remarks on Sentence ("ROS"). He commenced the ROS as follow: "HIS HONOUR: Sung Sub Kim is before the Court with his son, Gyu Tae Kim. Both are charged with an offence expressed in the following terms: "On 3 May 2016, at Baulkham Hills in the State of New South Wales, did break and enter the dwelling house of Susan Jiang situated at 2 Turner Avenue, Baulkham Hills, and then in the said dwelling house did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that they were in company with each other.""
2. Although the Crown specified in the indictment one circumstance of aggravation - that is that the offenders were in company - there were additional factors relevant to the criminality, namely the use of corporal violence upon the victim, deprivation of her liberty and that they knew she was in the premises at the time they entered.
3. After referring to the role of the standard non-parole period and the maximum penalty in fixing legislative guide posts for sentencing, the sentencing judge assessed the objective seriousness as above mid-range.
4. The sentencing judge noted that whilst on bail, the applicant and his father had engaged in and been sentenced for other conduct involving false representations to police. They were both charged on 6 January 2017 in respect of that offending, and both were sentenced in the Local Court after guilty pleas on 25 August 2017. Both were sentenced to periods of imprisonment, the applicant for 12 months, including a non-parole period of 7 months.
5. The sentencing judge dealt with the issue of accumulation of the applicant's sentence in light of that other offending and there is no complaint about that in this appeal, however the relevance of this other misconduct was noted by the sentencing judge as evidencing that notwithstanding that the applicant and his father had been arrested, and were awaiting trial for aggravated break and enter and larceny, they were willing to continue with criminal misconduct in another context in the pursuit of money. The sentencing judge found that that informed the aspect of specific deterrence and the extent to which the court can accept the submissions of counsel that there are strong prospects for rehabilitation, however, the sentencing judge concluded that this further misconduct was a reflection of desperation for money.
6. The sentencing judge noted that the pleas of guilty were entered by both; insight, contrition and remorse were demonstrated, and that in each case there were strong prospects for rehabilitation.
7. The sentencing judge referred to the need to bring into account general deterrence, the need for there to be recognition of the harm that was suffered by this victim, that both offenders must be made accountable and face the consequences of what they have done and that the court must clearly and unequivocally denounce their behaviour (ROS page 16).
8. Reference was made to the presentence report prepared for the applicant's father and a series of references tendered in his support were noted. The sentencing judge concluded that the applicant's father had a low risk of reoffending, but community-based sentencing options were out of the question, as conceded by both counsel, because of s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
9. The pre-sentence report for the applicant was analysed. That report indicated that the applicant had a clean record and no management concerns and that he had suffered a disjointed upbringing, coming to Australia from South Korea when he was young and living on the Central Coast until he commenced primary school. For reasons unknown, he was then left in the care of family friends for a period of time. His mother returned to South Korea and he was required to relocate with his father to Sydney and he spent the next two years without schooling. The report records that the applicant realises now that that was probably because he was an unlawful citizen at that time. When he was 12, he was returned to South Korea to live with his mother where he remained until he was 19. He came back to live in Australia with his father, stepmother and half siblings. There was mention of a strained relationship with his father which had become worse because of the offending.
10. The sentencing judge specifically extracted those parts of the report that indicated that whilst acknowledging the seriousness of his actions, the entire event was planned by his father, and due to cultural reasons the applicant felt that he was unable to say no. He was worried that if he did not agree to take part, he would be homeless.
11. There was also a psychologist's report to which the sentencing judge referred which gave more background, including that the applicant worked in his father's business and was not paid a wage or salary but received only food and board. He reported feeling very sad and helpless over the past three years since his return to Australia, frequently crying, feeling like he wanted to run away from his father but having no finances or place to go should he leave his father's home. There is a reference to thinking about suicide but never acting on this, and that the applicant currently is focused on returning to South Korea to live with his mother.
12. The sentencing judge quoted from the account of the offending provided by the applicant to the psychologist. He described feeling shocked and frozen about what happened when he witnessed his father's actions, for example forcing his way in and pushing the victim to the ground and that he felt scared. He felt distressed by the victim's calls for help, had difficulty sleeping since then and has a strong sense of guilt. He regretted what he did and does not know why he did it. The psychologist noted that he appeared to be accepting of his fate and punishment.
13. Reference was made by the sentencing judge to the authorities that make it clear that representations attributed to an offender in reports such as a psychologist's or pre-sentence report must be treated with a measure of circumspection, although the sentencing judge concluded that it appeared to him that there was "a measure of subservience" between father and son, and the father was the dominant member of the relationship.
14. However, the sentencing judge noted that the applicant participated and took a very active role in a serious criminal offence for which he must be punished (ROS page 21).
15. The sentencing judge then dealt with the submissions that had been made about the sentencing statistics. He rejected the submission that a non-parole period of 18 months with a head sentence of 36 months would be sufficient. He discounted the sentences imposed on both the applicant and his father by 12½ percent for the guilty plea each had entered. He rejected a submission that he should somehow take into account the fact that the applicant (and his father) would be excluded from Australia once they completed their custody as the authorities indicate that is not a matter that should be taken into account.
16. The sentencing judge found special circumstances in respect of the applicant related to his relative youth, his Korean heritage, that English is not his first language, and that he effectively has no other family in this country, apart from his uncle.

Principles: Parity

1. The relevant principles are helpfully set out in Dayment v R [2018] NSWCCA 132 per RA Hulme J at [62]: "… this Court must acknowledge the discretion of a judge who was called upon to make an assessment of the appropriate sentences to impose upon related offenders being sentenced within the one proceeding: see the discussion of this in the judgment of Hoeben CJ at CL (Johnson and Schmidt JJ agreeing) in Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [172]-[174]. It is not for this Court to second guess the manner in which the primary judge differentiated between two offenders in the sentences imposed. Intervention will only be justified if the degree of the disparity in the sentences cannot be justified as a proper exercise of the judge's discretion."
2. To similar effect is the recent statement in Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 per Hoeben CJ at CL (Johnson and Schmidt JJ agreeing) at [172]-[174]: "172 It needs to be clearly kept in mind that his Honour was exercising a broad sentencing discretion involving qualitative judgments and that it is only in cases of marked or unjustified disparity that the Court will intervene Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32]). In Miles v The Queen [2017] NSWCCA 266 Leeming JA (with whom Rothman and Hamill JJ agreed) made observations to similar effect: "9 … There will always be differences in the objective and subjective elements in any case involving multiple offenders such that mere difference in sentence alone cannot give rise to appellable error. The question is whether the sentence imposed on a co-offender is reasonably justified in the light of those differences bearing in mind the qualitative and discretionary judgments required of the sentencing judge." 173 Other principles to be kept in mind are that equal justice requires that like should be treated alike, but that if there are relevant differences due allowance should be made for them (Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301). The Court may reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. The Court will refuse to intervene where disparity is justified by differences in co-offenders such as age, background, criminal history, general character and the role of each participant in the joint criminal enterprise (Green v The Queen; Quinn v The Queen at [31]). 174 In this case, both offenders were sentenced by the same judge at the same time. In Usher v R [2016] NSWCCA 276 at [73] N Adams J (with whom Hoeben CJ at CL and Button J agreed) restated the importance of the fact that co-offenders were sentenced by the same judge on a ground of disparity: "73 It is of significance that the same sentencing judge sentenced both the applicant and the co-offender. This Court has stated that, where possible, that practice is desirable. When the same judge hears both matters simultaneously, "…[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way:" Huckstadt v R [2016] NSWCCA 22 per Button J at [90] (with whom Johnson and Fagan JJ agreed). In Tuivaga v R [2015] NSWCCA 145, Hoeben CJ at CL (with whom RA Hulme and Wilson JJ agreed) observed at [55]-[56]: "55 It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant. 56 In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene"."
3. In KR v R [2012] NSWCCA 32, Latham J provided a useful collection of authorities [16]-[19] together with an analysis of the discrimination between criminal responsibility and culpability [20]-[22]: "16 As James J observed (McClellan CJ at CL and Adams J agreeing) in R v Wright [2009] NSWCCA 3, when dealing with a joint criminal enterprise to cause grievous bodily harm which involved stomping on and kicking the head of the victim :- 28 If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90. 29 However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23). 17 This passage was also cited with approval in R v JW [2010] NSWCCA 49 at [162]. With respect to the identification of the role played by each participant in a joint criminal enterprise, Spigelman CJ said (Allsop P, McClellan CJ at CL, Howie and Johnson JJ agreeing) at [161] :- It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with "precision", because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, eg, Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, "Sentencing in Complicity Cases - Part 1: Joint Criminal Enterprise", Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, June 2009.) 18 More recently, in R v Sukkar [2011] NSWCCA 140, Davies J summarised the position thus at [36] :- To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, ( Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision ( R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced ( R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche & Ors [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]). 19 What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct. 20 Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process. 21 Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. "The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability." R v O'Connor [1980] HCA 17 at [20] ; 146 CLR 64 at 72, per Barwick CJ. 22 Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment : R v Merritt [2004] NSWCCA 19 ; R v Henry & Ors. [1999] NSWCCA 111 at [254] ; 46 NSWLR 346 ; 106 A Crim R 149."

(i) The applicant

1. Counsel for the applicant submitted that there were four main reasons that demonstrate that the sentencing judge took the wrong approach in respect of parity and why the applicant has a justifiable sense of grievance; first, the subjective circumstances of the applicant; second, his clearly subservient role in the offending, third, his age and fourth, his clean record.
2. Counsel for the applicant noted that some considerations tell against ground 1; first, the sentencing judge was in a position to consider the interrelationship between the objective and subjective features of the two offenders, second, the broad sentencing discretion involving qualitative judgments being exercised and third, it is evident (ROS pages 20-21) that consideration to the question of parity generally has been given, noting the subservience between father and son.
3. Insufficient regard has been given to the subservience of the applicant both in terms of the context of their relationship and his substantially less role in the offending. All forceful acts during the offence - pushing the victim backwards, putting a hand over the victim's mouth, threatening the victim, pulling her arms behind her back, taping her hands and legs together, placing tape loosely around her mouth and a shopping bag over her head for a short time, asking her where the money was, further threatening her as they left the house and sending threatening text messages in the afternoon, were carried out by the applicant's father.
4. In contrast, the applicant spoke to the victim for about 30 minutes at her home before leaving to meet his father, told his father the victim was home alone, went with his father to commit the offence, approached the front door again after the offence commenced, took a piece of duct tape from a roll he had and handed it to his father, using a code provided by his father went to the bedroom and accessed the safe and took money out of it and then left and waited for his father in the van.
5. Given the applicant was only 22 years old at the time, he was entitled to have his relative youth considered as a mitigating factor in sentence, not only in the context of special circumstances: R v Hearne [2001] NSWCCA 37; BP v R [2010] NSWCCA 159 at [3]-[7] per Hodgson JA. He also had no prior criminal convictions, although I interpolate here that his father had minimal convictions and no relevant prior offending.
6. Comparatively little was known about the applicant's father's personal circumstances. Unlike the applicant, he was not forthcoming in the pre-sentence report. In contrast, the applicant's psychologist's report provided a sound basis for his Honour's finding as to subservience and this reflected their respective roles in the offending. This was fundamental to assessing their respective levels of culpability for the offence.
7. There were significant dissimilarities between the applicant and his father and all of them favoured the applicant, but the sentencing judge did not make due allowance for these differences in the relative sentences imposed. More than a marginal reduction was required to adequately reflect those differences and do justice in the case.
8. Nowhere in the ROS is parity specifically considered and all of the relevant considerations weighed. There is insufficient disparity as between the relative sentences and so a justifiable sense of grievance or the appearance that justice has not been done in the applicant's case.
9. On the issue of manifest excess, the applicant submitted that whilst the offence was an objectively serious example of an aggravated break, enter and steal, the applicant's culpability and, consequently, the degree of punishment required, was to be assessed against his role in its commission, which was substantially less than his co-offender: R v JW [2010] NSWCCA 49 at [161]; KR v R [2012] NSWCCA 32 at [19]-[20].
10. In addition to the objective considerations in respect of the applicant's role in the offence there were a number of (subjective) mitigating factors: 1. His young age at the time of the offence - 22 years and 1 month - and the nature of his relationship with his father, reduced the role that retribution ought to have played in the fixing of his sentence as compared to his father's: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [4] (Hodgson JA): "4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]." 1. He pleaded guilty and was found to have demonstrated insight, appropriate contrition and remorse; 2. He had no prior criminal convictions and was otherwise a young adult of prior good character; 3. He was assessed as being unlikely to reoffend, found to have strong prospects of rehabilitation with no identifiable criminogenic treatment needs; 4. He also made admissions to the police at the time of his arrest reflecting a degree of co-operation with law enforcement authorities."

(ii) The respondent

1. A great deal of the written submissions were stated to be directed at the second ground - manifest excess - but there was a simultaneous analysis of parity in the examination of the criminality of the acts that the applicant personally performed.
2. Emphasis was placed on the principle that once a joint criminal enterprise is carried out, the applicant was responsible for the acts committed by himself and by his father in the course of the offence: KR v R (2012) NSWCCA 32 at [22].
3. Culpability may or may not vary between the participants: R v Goundar (2000) 127 A Crim R 33; [2001] NSWCCA 198 per Wood CJ at CL (Powell JA and Sully J agreeing): "31 This Court approved the observation of the sentencing judge, when assessing the objective criminality of the offenders, as "being of the same quality" upon the basis that they had involved themselves "in a course of criminal conduct which could be described as a joint criminal enterprise". 32 This does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality. The assessment does, however, begin or should begin with the proposition that each intended the crime and each set out to carry it into effect. 33 On some occasions cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring-leader, or abuses some inside knowledge or connection with the premises to carry the crime into effect, or is the person who actually elects to carry out the threat of violence by using the weapon offensively to cause injury to the victim."
4. Reference was also made to the remarks of Simpson J (as her Honour then was) in Johnson v R, Moody v R [2010] NSWCCA 124 at [11]: "…when sentencing co-offenders engaged in a joint criminal enterprise, some caution needs to be exercised in drawing fine distinctions between what each actually did."
5. It was argued that the applicant and his father were together whilst offending, the applicant had the tape used to tie and gag the victim indicating a state of knowledge of what had to be done and the applicant took the money and papers from the safe. In effect, each depended on the other to commit the offence.
6. Given the applicant's failure to give evidence, the sentencing judge was right to treat with circumspection the applicant's account of the father being the instigator.
7. The sentencing judge took a proper approach to principle by assessing the applicant's culpability as follows (ROS pages 20-21): "It does appear to me that against their history there is a measure of subservience between father and son with the father the dominant member of the relationship. It does appear on the material before me that I could find that the father was in some sort of financial distress not further quantified and that the son participated in this crime not under any duress or threat but by reason of his status as the son compliant with the father's purpose. It remains however that he participated and took a very active role in a serious criminal offence for which he must been punished. There will be a marginal reduction in the sentence he will face compared with that I am intending to impose on his father."
8. The Crown distinguished the age of the offender and nature of the offending that Hodgson JA was dealing with in BP at [4], in support of a submission that those remarks should be confined to a very young person (16 years old in that case) and unplanned or impulsive offending.
9. In its submissions on parity, the Crown argued that the sentencing judge made a finding favourable to the applicant regarding his subservience to his father, and that his age, maturity and the relationship were all noted by the sentencing judge and so were properly taken into account.

Decision

1. Whilst reference was made to the principles of parity and their application, in my view insufficient regard was had to the differentiation of acts carried out by the applicant as opposed to those carried out by his father. There was, in my view, insufficient reflection of this in the very marginal difference in the applicant's sentence when compared to his father's.
2. Nowhere does the sentencing judge reflect on a comparison of the particular acts of the applicant and the nature of them when considered next to the acts of the father. True it is that the applicant carried out the larceny by removing items from the safe, but this was on the provision of the code from his father after the father had physically subdued and threatened the victim.
3. Simply concluding that the applicant "participated and took a very active role in a serious criminal offence" is not sufficient analysis in the circumstances.
4. Whilst it is true the applicant did not give evidence, there is no reason to doubt the accuracy of the matters raised in the pre-sentence and psychologist's reports regarding the applicant's personal background and family circumstances.
5. The agreed facts reflect the clearly subservient role of the applicant in the offending.
6. Further, I accept that the subjective factors emphasised by counsel for the applicant at this appeal are significant considerations in assessing the relative levels of culpability. They were not marginal - they were critical matters.
7. The very small degree of disparity in the sentences cannot be justified as a proper exercise of the judge's discretion and ground 1 has been established.
8. Consequently, I do not need to determine ground 2.

Re-sentence

1. It then remains to re-exercise the sentencing discretion. No additional evidence was adduced on appeal and so resentencing is to be considered having regards to the material that was before the sentencing judge.
2. I accept the applicant's submissions as to his role in the offending as set out in [4] of this judgment. I take into account the subjective matters set out in ROS pages 18-21.
3. I adopt the finding by the sentencing judge that the applicant participated in the crime "not under any duress or threat but by reason of his status as the son compliant with his father's purpose".
4. I conclude however that the applicant's status as "the son compliant with his father's purpose" is a loaded conclusion here given the parlous living circumstances of the applicant set out in the pre-sentence and psychologist's reports. Whilst not duress or threat, there clearly was a level of control that the father exerted over his son. His culpability for the offending should be assessed in light of that relationship.
5. In the pre-sentence report, under the heading "attitude to offending" the following is said: "Throughout the discussion the offender acknowledged the seriousness of his actions however asserted that the entire event was planned by his father. He stated that due to cultural reasons he felt he was unable to say no to his father when he was told of the offence and agreed to take part given he felt his refusal would result in him likely becoming homeless at the time."
6. Further, in that same report under the heading "assessment" it states: "The offender presented as a polite yet naive young man with no apparent criminogenic issues…it appears Mr Kim has lived a somewhat disjointed life thus far and by his account, seems to have been somewhat controlled by his father, who is also the co-offender in relation to the current offences. It appears there was no other motivation for the offender to take part in the offences, other than his loyalty to the co-offender which he claims to now regret … ." 1. In the psychologist report the conclusion included this observation: "Mr Kim had a disjointed upbringing marked by periods of social isolation and parental absence (both physical and emotional). This social isolation (particularly when residing with his father in Australia), in combination with the presence of a controlling father (who used both emotional and financial mechanisms to control Mr Kim), resulted in the development of a submissive and subservient son who was unable to easily escape his father's control."
7. I am of the view that the statement of Hodgson JA in BP is apposite in addressing the role of retribution in sentencing the applicant. In my view, despite the applicant being aged 22 at the time of the offending, there is a pervasive element of emotional immaturity as a result of his personal circumstances that is relevant to his culpability in a mitigatory way.
8. As found by the sentencing judge, the applicant admitted to the offending and he has shown remorse, contrition and has good prospects of rehabilitation.
9. I adopt the approach of the sentencing judge to the other offending which I note also occurred in concert with his father, and I note and adopt the sentencing judge's conclusion that this other offending illustrated desperation for money.
10. I adopt the sentencing judge's reduction of the sentence by 12½ percent to reflect the guilty plea.
11. I adopt the sentencing judge's findings as to special circumstances set out by him at ROS page 23.
12. I propose a non-parole period of 3 years commencing 3 December 2017 and expiring 2 December 2020 and a further period of imprisonment of 2 years to commence at the expiration of the non-parole period and that will expire on 2 December 2022.
13. The orders I propose are: 1. Leave to appeal against sentence is granted. 2. Appeal allowed. 3. Set aside the sentence imposed by the District Court on 13 October 2017 and in place thereof impose: 1. a non-parole period of 3 years to date from 3 December 2017 to expire on 2 December 2020. 2. a balance term of 2 years to expire on 2 December 2022. 3. the applicant will be eligible for release on parole on 2 December 2020.

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