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Court of Criminal Appeal 24 June 2003

R v KIM

[2003] NSWCCA 167

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING ARMED ROBBERY

Citation: KIM v R [2003] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 24 June 2003
Judge(s): Meagher JA, Dowd J, Barr J

Background

The applicant, a 19-year-old man, pleaded guilty in the District Court to two serious offences arising from events on 1 October 2001 at a rooming house in Campsie. He broke and entered the premises while armed with a .22 rifle (which had no firing mechanism) and, together with an accomplice armed with a knife, robbed and terrorised four adults and a child. The applicant had accepted payment of $1,000 to participate, knowing one occupant was to be assaulted as part of a personal grudge held by the person who commissioned the offences.

During the incident, the accomplice singled out one female occupant, took her to another room, slashed her clothing, cut her chest with the knife, tied her wrists with cable ties, and stole her jewellery. The applicant stood guard over the remaining occupants throughout. The group also stole mobile phones, credit cards, money, a DVD player, and other property. Two further robberies of other occupants were taken into account on sentence.

The District Court sentenced the applicant to 12 years' imprisonment on each charge (concurrent), with a non-parole period of eight years, after discounting from a starting point of 15 years for the plea of guilty. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge failed to give adequate weight to the applicant's cooperation with police, including naming his co-offender and the person who commissioned the offences
  • Whether the sentencing judge was required to make explicit findings about the extent and value of the applicant's assistance to police
  • Whether a starting point of 15 years' imprisonment was within the proper range of sentencing discretion for offences of this kind

Decision

On the cooperation ground, the Court found no error. At the time of sentencing, there was no evidence that the applicant's information had led to any charge being laid in relation to the subject offences. The statement of facts noted that enquiries into the accomplice and principal were still continuing. The sentencing judge was entitled to treat the information provided as modest and as no more than a working-out of the confession of guilt implicit in the plea.

The Court also rejected the submission that the sentencing judge was obliged to make a specific finding quantifying the value of the assistance. On the material available, no such assessment beyond what appeared in the statement of facts would have been possible.

On the starting point, the Court found that 15 years was within the proper range of sentencing discretion. The offences carried a maximum of 25 years each under sections 112 and 97 of the Crimes Act 1900. The Court noted the limited utility of sentence statistics in cases involving multiple offences and concurrent sentences. It also observed that none of the comparable cases cited involved offences committed while the offender was already serving a sentence for demanding property with menaces.

The Court described the offending as falling into a very serious category of its kind. The applicant had hired himself out for money in a well-planned operation involving weapons, disguise, actual injury, invasion of a private home at night, and lasting psychological harm to one victim. The concurrent structure of the sentences itself reflected considerable leniency, further supporting the chosen starting point.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to make explicit findings about the precise value of an offender's assistance to police where the available material does not support any assessment beyond what is already recorded in the statement of facts.
  • Where an offender provides information naming co-offenders but no charges result from that information and enquiries remain ongoing, a sentencing court may treat the assistance as modest and as substantially subsumed within the allowance for the guilty plea.
  • Upholding the sentence, the Court of Criminal Appeal confirmed that Judicial Commission statistics and individual comparable cases have limited utility in sentence appeals involving multiple concurrent sentences and additional offences taken into account.
  • In assessing the seriousness of home invasion offences involving weapons, courts treat planned intrusion into a private residence, assault for commercial reward, and ongoing harm to victims as significant aggravating features.
  • The circumstance that offences were committed while the applicant was serving an existing sentence for demanding property with menaces was a relevant distinguishing factor that separated the case from statistical comparators.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97 (armed robbery, maximum 25 years)
- Crimes Act 1900 (NSW), s 112 (breaking, entering and committing a serious indictable offence, maximum 25 years)

Cases: No specific cases were cited by name in the judgment text.