1. I have determined to allow leave to appeal on grounds 1 and 3. I consider they are reasonably arguable and further they raise a question of law that justifies hearing from a bench of three judges.

1. It is convenient to recite the judge's concise factual analysis:

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.

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.

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.

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.

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.

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.

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.

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.

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.

Shortly after you left the room and you left the club.[2]

1. In short compass, Mr Dann KC who appeared for the applicant repeated the submission he made before the sentencing judge: that the presentence detention ought to be a factor considered in the overall sentencing synthesis, particularly the prospect of the applicant doing 'dead time' as a consequence of the sentencing orders. Specifically, it was submitted that the presentence detention declared (539 days) meant that the applicant had served 174 days' imprisonment more than the 12 months' imprisonment ultimately imposed by her Honour. The applicant contended that this apparent injustice ought to have been given weight in the sentencing mix, however despite being argued before her Honour, it received no attention in the sentencing reasons.
2. In written submissions, the applicant contended that:

It is well established that time spent in custody "which is a period of time that with the benefit of hindsight should not have been served"[3] can be taken into account when considering the imposition of sentence.

The applicant cited Warwick v The Queen ('Warwick') in support of this broad proposition, although in oral discussion, Mr Dann accepted that the 'dead time' in Warwick was different to this case in that it was served in prior unrelated proceedings.[4] This, he argued, ought not impact upon the general proposition that where 'dead time' can be identified it would be unjust not to give it recognition in the relevant sentencing exercise.[5] The applicant relied upon a line of authority commencing with R v Renzella ('Renzella')[6] and including Karpinksi v The Queen[7] and R v Kotzmann.[8]

1. The respondent submitted that the Renzella line of authority in which dead time may be taken into account as a matter of justice without exception involves cases where 'dead time' has accumulated, perhaps as a result of a prior acquittal or discontinuance in some unrelated proceeding, and where it would be unjust to ignore the reality of that in a subsequent sentencing exercise. It follows - if this line of authority were the limits of the Renzella allowance - that the 174 days of dead time would be available to the applicant in some future unrelated sentencing exercise but not on this occasion. Further, it was submitted that if the 'dead time' in this case were to be given weight in the sentencing synthesis, it may well result in a sentence disproportionate to the gravity of the offending behaviour.
2. The issues to be resolved, therefore, are ones of sentencing principle. Can a readily identifiable period of wrongly-served imprisonment be given weight during the instinctive synthesis of a related subsequent sentencing exercise? This question is sufficiently novel to justify consideration by a three-judge bench.

1. I will grant leave on grounds 1 and 3.
2. I will refuse leave on ground 2 which I considered to be devoid of merit.

[2] DPP v Kim [2024] VCC 553, [1]-[10].

[3] Warwick v The Queen [2010] VSCA 166; (2010) 201 A Crim R 580, 585 [17] (Maxwell P and Weinberg JA); [2010] VSCA 166.

[4] (2010) 201 A Crim R 580; [2010] VSCA 166.

[5] Karpinski v The Queen [2011] VSCA 94; (2011) 32 VR 85, 86 [7] (Weinberg JA); [2011] VSCA 94.

[6] [1997] 2 VR 88; [1999] VSCA 85.

[7] [2011] VSCA 94; (2011) 32 VR 85, 86 [7] (Weinberg JA); [2011] VSCA 94.

[8] [1999] VSCA 27; [1999] 2 VR 123, 137 [42] (Phillips CJ, Callaway and Batt JJA); [1999] VSCA 27.