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Court of Criminal Appeal 24 July 2019

Kim v R

[2019] NSWCCA 165

Theft & property
CRIMINAL LAW APPEAL LEAVE TO APPEAL AGAINST SENTENCE WHETHER INSUFFICIENT DISPARITY LEAVE TO APPEAL GRANTED APPEAL ALLOWED

Citation: Kim v R [2019] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 24 July 2019
Judges: Payne JA, Button J, Lonergan J

Background

The applicant, a 22-year-old man, pleaded guilty to one count of aggravated break and enter and larceny under s 112(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. He committed the offence jointly with his father. The offending involved attending the home of a family acquaintance, restraining the victim with duct tape, and stealing the equivalent of approximately $13,800 in mixed currencies from a safe.

The applicant's role included making initial contact with the victim to assess whether she was home alone, handing duct tape to his father during the restraint, opening the safe using a code the father had extracted from the victim, and waiting in a van while his father remained inside. Evidence before the sentencing court described the applicant as emotionally immature and psychologically subservient to his father, who exercised financial and emotional control over him.

In the District Court at Parramatta, the applicant was sentenced to six years imprisonment with a four-year non-parole period. His father received six years and six months with a non-parole period of four years and three months. The applicant sought leave to appeal, arguing the disparity between the two sentences was insufficient given the meaningful difference in their roles.

  • Whether the disparity between the applicant's sentence and his father's sentence was insufficient such that the applicant had a justifiable sense of grievance (the parity principle)
  • Whether the sentence imposed on the applicant was manifestly excessive

Decision

The Court of Criminal Appeal unanimously held that ground one, the parity ground, was made out. All three judges agreed that the sentencing judge had failed to adequately reflect the different roles played by the applicant and his father. The father had physically pushed the victim, restrained her, made threats about kidnapping and killing, directed the entire operation, and remained at the scene after his son left. The applicant's participation, while serious, was materially less culpable.

Lonergan J found that the applicant's psychological subservience to his father was a pervasive and relevant mitigatory factor. A psychologist's report described the applicant as having developed a submissive personality through a disjointed upbringing marked by parental absence and his father's controlling behaviour. Lonergan J also applied observations from BP v R regarding the role of retribution in sentencing, noting that emotional immaturity, even in an adult offender, can bear on moral culpability.

Button J specifically identified the three-month difference in non-parole periods as erroneous. Payne JA agreed that the absence of meaningful disparity could not be justified as a proper exercise of sentencing discretion. Because ground one succeeded, the Court did not need to address the manifest excess ground.

On resentencing, the Court reduced the applicant's non-parole period from four years to three years, with a balance term of two years, resulting in a total sentence of five years. This produced a more meaningful differentiation from the father's sentence and properly reflected the applicant's lesser role and personal circumstances.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by the District Court on 13 October 2017 set aside
  • In substitution: a non-parole period of 3 years commencing 3 December 2017 and expiring 2 December 2020
  • Balance term of 2 years expiring 2 December 2022
  • Applicant eligible for release on parole on 2 December 2020

Key Takeaways

  • The parity principle requires that co-offenders who played materially different roles receive sentences that reflect those differences; a three-month gap in non-parole periods was found to be an insufficient expression of significantly different levels of culpability.
  • Psychological subservience to a co-offending parent, supported by expert evidence, can constitute a mitigatory factor relevant to moral culpability even where the offender is an adult at the time of the offence.
  • A justifiable sense of grievance arises not only from a co-offender receiving a lighter sentence, but also from the sentencing court failing to adequately differentiate sentences downward in favour of the less culpable offender.
  • Where the parity ground alone is sufficient to disturb a sentence, the Court of Criminal Appeal need not separately resolve a manifest excess ground.
  • On resentencing, the Court of Criminal Appeal adopted the original sentencing judge's findings on guilty plea discount, special circumstances, and the relevance of other offending committed in concert with the father, adjusting only the head sentence and non-parole period to reflect proper parity.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- R v Goundar (2000) 127 A Crim R 33; [2001] NSWCCA 198
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
- KR v R [2012] NSWCCA 32
- R v Hearne [2001] NSWCCA 37
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159