Citation: R v Sim (No 2) [2019] NSWDC 316
Court: District Court of New South Wales
Date: 15 April 2019
Judge: Colefax SC DCJ
Background
The offender, a 32-year-old Korean national, appeared for sentencing on six principal offences committed in early December 2017 in Burwood, New South Wales. Five offences were committed against a 24-year-old Vietnamese student working in hospitality, referred to by the pseudonym "Ms Yee." The sixth offence was committed against a 21-year-old woman referred to as "Ms Acharya."
The offences against Ms Yee involved a prolonged and violent attack that began near her home late at night. The offender followed her, punched her repeatedly, forcibly removed her clothing, photographed her without consent, and committed two acts of aggravated sexual assault, including penile-vaginal intercourse. He placed her in headlocks causing breathing difficulties, and afterwards threatened to distribute the photographs he had taken if she reported the offences to police.
A matter of days later, the offender attacked Ms Acharya in the early hours of the morning, covering her mouth, pushing her to the ground, slapping her four times, and stealing her handbag. The agreed facts underpinned all six counts, and the offender also asked the court to take into account three additional matters on a Form 1: dishonestly obtaining a financial advantage by deception, intentionally recording an intimate image without consent, and threatening to distribute such an image without consent.
Legal Issues
- How should the six principal offences be assessed for objective seriousness relative to their respective categories?
- What weight should be given to the Form 1 matters, including the recording and threatened distribution of intimate images?
- What discount applied to the sentences by reason of the offender's guilty pleas?
- How should the totality principle (the requirement that an aggregate sentence reflect the overall criminality without being crushing) be applied to the aggregate sentence?
- What personal circumstances of the offender, including background, binge drinking, absence of prior criminal history in Australia, and the particular harshness of custody for a foreign national, were relevant to the sentence?
Decision
Colefax SC DCJ assessed counts 1 through 4 as just below the mid-range of objective seriousness for offences of their kind. Count 5, the second aggravated sexual assault, was assessed at mid-range. Count 6, the aggravated assault on Ms Acharya, was assessed between the middle and bottom of the range. The court treated the Form 1 matter involving financial deception as not warranting any meaningful increase in sentence, but found that the recording and threatened distribution of intimate images did warrant a meaningful increase to the sentence for count 4.
A 25 percent discount was applied to each indicative sentence to reflect the guilty pleas. The indicative sentences before discount ranged from 4 years (count 6) to 12 years (count 5, the second sexual assault). After applying the discount, the indicative sentences ranged from 3 years to 9 years across the six counts.
The court considered a range of subjective factors. The offender had no prior criminal history in Australia, had experienced a difficult childhood marked by a father's excessive drinking and gambling, and had a history of binge drinking himself. The court accepted that imprisonment would be significantly harsher for the offender given his status as a foreign national with no family or support network in Australia, and that a longer parole period would assist his rehabilitation.
Applying the totality principle to arrive at an aggregate sentence, the court imposed a total term of 12 years imprisonment with a non-parole period of 7 years and 2 months, commencing from the date of arrest on 13 December 2017.
Orders Made
- Aggregate term of imprisonment of 12 years imposed across all six counts.
- Non-parole period of 7 years and 2 months, commencing 13 December 2017 and expiring 12 February 2025.
- Balance of term of 4 years and 10 months, commencing 13 February 2025 and expiring 12 December 2029.
- Parole eligibility at the conclusion of the non-parole period to be determined exclusively by the Parole Board.
Key Takeaways
- The District Court confirmed that where a Form 1 includes offences of recording and threatening to distribute intimate images without consent, those matters can warrant a meaningful increase to the sentence for the principal offence to which they are attached, even where a separate Form 1 matter involving financial deception does not.
- A 25 percent guilty plea discount was applied consistently across all counts, reflecting the offender's entry of guilty pleas.
- Objective seriousness was assessed individually for each count, with the second aggravated sexual assault (count 5) assessed at mid-range and attracting the highest indicative sentence of 9 years after discount.
- The particularly harsh effect of custody on a foreign national with no family or support in Australia was treated as a relevant mitigating factor when fixing the non-parole period and structuring the period of parole supervision.
- An absence of prior criminal history in Australia, combined with evidence of a troubled background, can be weighed in the offender's favour as a subjective matter, even where the objective circumstances of the offending are grave.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 86(2)(b) (detain for advantage with intent to commit serious indictable offence)
- Crimes Act 1900 (NSW), s 94(1) (aggravated robbery using corporal violence)
- Crimes Act 1900 (NSW), s 95(1) (aggravated assault with intent to rob)
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual assault)
- Crimes Act 1900 (NSW), s 37(2) and s 344A(1) (choking with intent to commit an indictable offence)
Cases cited: No cases were cited in the judgment.