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District Court 17 September 2020

R v Kim

[2020] NSWDC 589

Sexual offencesAssault & violence
CRIME TRIAL BY JUDGE ALONE

Citation: R v Kim [2020] NSWDC 589
Court: District Court of New South Wales
Date: 17 September 2020
Judge(s): M Adams QC ADCJ

Background

The offender was convicted after a judge-alone trial of attempting to have sexual intercourse without consent, contrary to section 61I of the Crimes Act 1900. He had separately pleaded guilty in the Local Court to sexual touching (s 61KC) and common assault (s 61), both arising from the same incident.

The offending occurred in the early hours of 19 July 2019. CCTV recorded the offender, who had been drinking heavily, approaching the victim in the entrance hall of her apartment block. He grabbed her from behind, groped her, brought her to the ground, attempted to lift her skirt, and punched her several times when she bit his hand. The victim's determined resistance caused him to desist. The entire incident lasted approximately two minutes.

The offender, a South Korean national working as a chef in Sydney, had no prior criminal history in either Korea or Australia. He was taken into custody on 24 July 2019 and remained on remand through to sentencing.

Legal Issues

  • What sentencing discounts applied to the conviction after trial, given the offender's election for trial by judge alone and his agreement to a statement of facts?
  • What was the appropriate objective seriousness of each offence, and how should the interconnected nature of the offending be treated?
  • Did special circumstances exist to justify a reduction in the non-parole period below the statutory ratio?
  • What aggregate sentence reflected the totality of the offender's criminality?

Decision

Issue 1: Sentencing discounts

The offender received a 25% discount on the second and third offences for his early guilty pleas (at [2]). For the attempted sexual intercourse offence, the court accepted a 5% discount for electing trial by judge alone, recognising the utilitarian benefit to the community following the reasoning in R v Ross (No 5) (at [2]). A further discount was allowed because the offender agreed to a statement of facts that narrowed the issues and shortened the trial, constituting a "disclosure" under section 22A of the Crimes (Sentencing Procedure) Act 1999. An overall discount of 10% was applied to the first offence (at [2]).

Issue 2: Objective seriousness and the interconnected offences

The court placed the attempted sexual intercourse offence in the lower range of objective seriousness, having regard to the full spectrum of conduct that offence can encompass (at [13]). The court noted that the attempt failed not because the offender voluntarily withdrew but because the victim fought him off, and that the actual prospects of success were very low given his intoxication (at [12]). Nonetheless, the gravity of the offence required full-time imprisonment, primarily to reflect denunciation and deterrence (at [13]).

For the second and third offences, the court acknowledged that, considered in isolation, they would not necessarily require full-time custody (at [14]). However, their objective seriousness was informed by the context in which they occurred: the grabbing of the victim initiated the attempt offence, and the assaults arose directly from the offender trying to silence her calls for help (at [14]). The court was careful to treat this contextual assessment as distinct from double punishment, confirming it had not taken the lesser offences into account when sentencing for the attempt offence (at [14]).

Issue 3: Personal circumstances and special circumstances

The court accepted that the offending was spontaneous, driven by extreme intoxication, and out of character for a person who otherwise had good character (at [10]). A psychologist's report assessed the offender as at low risk of reoffending, and the court found genuine remorse in his letter to the court (at [8]-[9]). The court found special circumstances existed, justifying a reduction of the non-parole period below the statutory ratio, because the offender would benefit from supervisory support on release for longer than the standard ratio would allow (at [15]).

Issue 4: Aggregate sentence

Applying the totality principle from Pearce v R and Cahyadi v R, the court imposed an aggregate sentence rather than cumulative individual terms (at [14], [16]-[17]). The aggregate term was two years and ten months, with a non-parole period of one year and eight months, commencing 24 July 2019 (at [17]).

Orders Made

  • Aggregate sentence of full-time imprisonment for two years and ten months, commencing 24 July 2019
  • Non-parole period of one year and eight months, expiring 23 March 2021, from which date the offender is eligible to be considered for release on parole

Key Takeaways

  • A 10% sentencing discount was available for the principal offence where the offender elected trial by judge alone (attracting a 5% reduction) and separately agreed to a statement of facts that shortened proceedings, with each element recognised as a distinct basis under section 22A of the Crimes (Sentencing Procedure) Act 1999 (at [2]).

  • Where multiple offences arise from a single continuing incident, a court may assess the objective seriousness of the lesser offences in light of their context without that amounting to double punishment, provided the court does not also account for those offences when sentencing on the principal charge (at [14]).

  • Extreme voluntary intoxication does not excuse offending but may inform findings about the spontaneous, out-of-character nature of conduct, which in turn bears on rehabilitation prospects and the weight given to specific deterrence (at [10], [12]).

  • Special circumstances justifying departure from the statutory non-parole ratio can be established where an offender's particular vulnerabilities, including cultural isolation and language difficulties, mean that a longer period of supervised parole is needed to support rehabilitation (at [15]).

  • The District Court confirmed, following R v Ross (No 5), that electing trial by judge alone carries a discrete utilitarian discount under section 22A, separate from any discount for pleading guilty or making admissions that narrow the issues at trial (at [2]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Pearce v R (1998) 194 CLR 610
- R v Kim [2020] NSWDC 405
- R v Ross (No 5) [2020] NSWDC 306