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Court of Criminal Appeal 9 November 2018

Kim v R

[2018] NSWCCA 254

Assault & violenceTheft & property
CRIMINAL LAW NO ERROR SHOWN LEAVE TO APPEAL REFUSED

Citation: Kim v R [2018] NSWCCA 254
Court: Court of Criminal Appeal, New South Wales
Date: 9 November 2018
Judge(s): Johnson J, Harrison J, Schmidt J (judgment delivered by Schmidt J)

Background

In the early hours of 3 July 2016, the applicant followed a woman in her early twenties after they both alighted from a bus in Chatswood. He attacked her as she walked home, punching her repeatedly to the face, and fled with her handbag. The victim was hospitalised with a nasal bone fracture, severe bruising and swelling, and multiple other injuries.

The applicant, an unrepresented 37-year-old Korean national, was identified by police and later entered an early guilty plea to one count of aggravated robbery under s 95(1) of the Crimes Act 1900 (NSW). Scotting DCJ in the District Court imposed a sentence with a non-parole period of 18 months and an additional term of 18 months, after applying a 25 per cent discount for the early plea.

The applicant sought leave to appeal out of time, arguing the sentencing judge had failed to properly account for his remorse, rehabilitation efforts, and the contents of a presentence report and psychiatric report, and that the sentence was manifestly excessive.

  • Whether leave to bring the application out of time should be granted
  • Whether the sentencing judge failed to give proper weight to the applicant's remorse, prospects of rehabilitation, and the assessments contained in the presentence and psychiatric reports
  • Whether the sentence of 18 months non-parole period with an 18-month additional term was manifestly excessive

Decision

Ground 1: Remorse, rehabilitation, and the reports. Schmidt J reviewed the sentencing judgment in detail and found that Scotting DCJ had expressly addressed the applicant's remorse, his rehabilitation efforts, his pursuit of counselling, and the conclusions of both the presentence report and the psychiatric report. The sentencing judge had also taken into account the applicant's personal circumstances, his history of alcohol and gambling problems, his immigration status, and the support of his partner and religion. No error in that process was demonstrated.

Ground 2: Manifest excess. The Court examined the objective seriousness of the offending: a violent attack on a stranger near public transport in the early hours of the morning. The Court reaffirmed the principle established in R v JW that persons using public transport at night are vulnerable and that substantial punishment is required for violence committed in that context. The applicant relied on a comparison with Renshaw v R, but the Court identified material differences between the two cases, including that the victim in the comparison case suffered less serious injuries and that the offender in that case had undertaken residential rehabilitation. The applicant's own record, including a mid-range PCA offence committed while on bail, was also a distinguishing factor.

The Court noted that the mere fact that other cases may appear to have resulted in more lenient or more severe sentences does not establish manifest excess, citing Wong v The Queen and Hili v The Queen. No error in the sentencing exercise was identified, and the Court concluded the sentence could not be characterised as manifestly excessive.

Orders Made

  • Leave to bring the application out of time: granted
  • Leave to appeal: refused

Key Takeaways

  • No error was established in the sentencing judge's treatment of the applicant's remorse, rehabilitation, or the expert and presentence reports, where the judgment expressly addressed each of those matters.
  • A sentence is not manifestly excessive simply because comparable cases can be found where offenders were dealt with more leniently. The Court of Criminal Appeal confirmed this principle by reference to Wong v The Queen and Hili v The Queen.
  • The Court of Criminal Appeal reaffirmed that offences involving violence against persons in the vicinity of public transport at night call for substantial punishment, treating such victims as a vulnerable class warranting particular protection.
  • Where an applicant relies on a sentencing comparison, material differences in objective seriousness and subjective circumstances between the cases will limit the utility of that comparison.
  • Differences in rehabilitation undertaken, the severity of injuries inflicted, and an additional offence committed while on bail were all factors that distinguished the applicant's case from the comparison case he relied upon.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- Renshaw v R [2012] NSWCCA 91
- Vandeventer v R [2013] NSWCCA 33
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- DF v R (2012) 222 A Crim R 178; [2012] NSWCCA 171
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Tortell [2007] NSWCCA 313