Citation: R v Kim [2014] NSWDC 358
Court: District Court of New South Wales
Date: 18 March 2014
Judge: Judge S Norrish QC
Background
The offender was one of three men who, in the early evening of 21 December 2012, entered a dwelling house at Lidcombe with the intention of intimidating its owner over an unresolved workplace dispute. The owner was not home. The only people present were his two young sons, aged 10 and 12, and a female boarder. The three men were heavily intoxicated at the time, having consumed Korean liquor earlier that evening.
The commercial dispute giving rise to the incident was between the homeowner and one of the other offenders, Jaehyuk Kim, who had worked for the homeowner's tiling business. The offender being sentenced, Dongwook Kim, was a friend of Jaehyuk and had no involvement in the underlying dispute. The agreed facts indicated that, at one point during the incident, Dongwook suggested the group leave when they found the homeowner absent.
The offender pleaded guilty at the Local Court to entering a dwelling house with intent to commit a serious indictable offence (intimidation) in circumstances of aggravation, and to a separate count of intimidation against one of the boys. Two further offences (intimidation of the other child and property damage) were taken into account on a Form 1. He had no prior criminal record.
Legal Issues
- What was the appropriate sentence, having regard to the offender's lesser moral culpability compared to his co-offenders?
- What weight should be given to the parity principle, given that co-accused Jaehyuk Kim had already received a two-year suspended sentence from another judge?
- How should the court treat intoxication and the absence of any specific intent to harm the child victims?
- What relevance, if any, did potential immigration consequences have to the sentencing exercise?
- What discount was appropriate for the early guilty plea?
Decision
Judge Norrish found that, while the offender was equally culpable in a legal sense as a participant in a joint criminal enterprise, his moral culpability was meaningfully lower than that of his co-offenders. The offending originated from Jaehyuk's dispute, not the offender's. The offender had suggested leaving when the homeowner was found absent, and he did not take a leading role in confronting the homeowner when he eventually arrived. He did not touch the car that another co-offender slapped.
The court gave significant weight to parity. Co-accused Jaehyuk Kim, who had a more central role, received a two-year suspended sentence. To impose a more severe sentence on the offender would produce an unjust disparity, contrary to the principle in Postiglione v R. The court also noted the absence of any intention to cause specific injury to the children, the offender's expressions of remorse, and his good character as reflected in the character references and pre-sentence report.
Intoxication was not treated as a mitigating factor. However, it was noted as providing some explanation for how the offender came to be involved in conduct entirely unrelated to any grievance of his own. The court applied a 25 percent discount to the sentence to reflect the early guilty plea.
On immigration consequences, the court acknowledged that potential ministerial action under the Migration Act 1958 was a relevant consideration in sentencing, while making clear that a sentence cannot be structured merely to produce a particular immigration outcome. The court indicated it expected the Minister for Immigration to take the remarks on sentence into account.
Orders Made
- Principal offence (enter dwelling house with intent, in circumstances of aggravation): Convicted. Sentenced to 12 months imprisonment, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. Conditions of the bond: good behaviour; appear before the court if required; notify the District Court criminal registry of any change of residential address. No supervision requirement imposed.
- Intimidation offence: Convicted. Sentenced to a good behaviour bond of two years pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, on the same conditions as above.
- The two Form 1 matters (intimidation of the second child; property damage) were taken into account in fixing the sentence for the principal offence.
Key Takeaways
- The District Court confirmed that equal legal culpability within a joint criminal enterprise does not preclude a finding of meaningfully lesser moral culpability, which can properly reduce an offender's sentence relative to co-offenders.
- Parity operated as a significant constraint on the outcome: because a more culpable co-offender had received a suspended sentence, imposing a more severe penalty on this offender would have produced an unjust disparity within the meaning of Postiglione v R.
- An early guilty plea attracted a 25 percent discount, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
- Potential immigration consequences are a relevant sentencing consideration, but the court cannot construct a sentence solely to engineer a particular administrative outcome under the Migration Act 1958.
- Intoxication was neither a mitigating factor nor a complete explanation for the offending, though the court treated it as contextually relevant to understanding how the offender came to participate in conduct unrelated to any grievance of his own.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 111(2), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Migration Act 1958 (Cth)
Cases
- Postiglione v R [1997] HCA 26; 189 CLR 295
- Jimmy v R [2010] NSWCCA 60
- R v Daetz (2003) 139 A Crim R 398
- Ahio v DPP [2008] NSWSC 565