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District Court 11 February 2022

R v Kim Yuen Ku

[2022] NSWDC 86

Sexual offences
CRIME SENTENCE CIRCUMSTANCES OF AGGRAVATION AGGRAVATING FACTORS BREACH OF TRUST MITIGATING FACTORS

Citation: R v Kim Yuen Ku [2022] NSWDC 86
Court: District Court of New South Wales
Date: 11 February 2022
Judge: Coleman SC DCJ

Background

The offender, a man born in March 1964, pleaded guilty to four counts of aggravated indecent assault of a person under 16 years of age, committed against his stepdaughter (referred to by the pseudonym JW) at the family home in Prestons, New South Wales. The offending occurred between 2008 and 2011, during periods when JW's mother was away commuting to work in Maroubra. JW had lived with her mother and the offender from 2007.

The conduct underlying each count involved the offender using massage as a pretext to touch or expose JW sexually, exploiting her vulnerability and his position as her stepfather and carer. At the time of the earliest offences, JW was 12 years old. The offending escalated across the counts in seriousness.

In addition to the four counts on the indictment, the offender asked the Court to take into account on a Form 1 (a mechanism that allows related matters to be considered without separate conviction) an offence of aggravated filming a person engaged in a private act without consent, connected to Count 4.

  • What indicative sentence was appropriate for each of the four counts of aggravated indecent assault, having regard to maximum penalties and standard non-parole periods?
  • What discount applied to each sentence in light of the early guilty pleas?
  • What aggravating and mitigating factors were relevant to the overall sentencing exercise?
  • How should the principle of totality govern the aggregate sentence imposed across multiple offences?
  • What aggregate sentence and non-parole period reflected appropriate punishment for the totality of the offending?

Decision

The Court identified the breach of trust as a central aggravating factor. The offender occupied a position equivalent to that of a parent, and the offending occurred when JW's mother was absent and the offender was her sole carer. The Court also noted the escalating nature of the misconduct across the counts and the young age of the victim.

In mitigation, the Court accepted the offender's early guilty pleas, which attracted a sentencing discount, and gave some weight to expressions of remorse. The guilty pleas were reflected in the indicative sentence for each individual count rather than in the aggregate figure, consistent with the approach confirmed in PG v R [2017] NSWCCA 179 and Ibbotson (a pseudonym) v R [2020] NSWCCA 92.

Applying the totality principle, the Court assessed each offence individually, then reviewed whether the aggregate sentence was just and appropriate for the full scope of the criminal conduct and the offender's personal circumstances. The Court was required to avoid imposing a "crushing" sentence while still reflecting the community's abhorrence of sexual offending against children.

The Court imposed an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 4 months. Allowance was made for 25 days already spent in custody, backdating the commencement of the sentence to 17 January 2022.

Orders Made

  • Count 1: 12 months imprisonment, non-parole period of 8 months
  • Count 2: 14 months imprisonment, non-parole period of 10 months
  • Count 3: 18 months imprisonment, non-parole period of 12 months
  • Count 4: 12 months imprisonment, non-parole period of 8 months
  • Aggregate sentence: 3 years and 6 months imprisonment, with a non-parole period of 2 years and 4 months
  • Sentence backdated to 17 January 2022 (accounting for 25 days in pre-sentence custody)
  • Head sentence expires: 16 July 2025
  • First eligible parole date: 16 May 2024

Key Takeaways

  • The District Court confirmed that, when sentencing for multiple offences by guilty plea, the discount for the plea is to be reflected in each indicative sentence individually, not absorbed into the overall aggregate figure, following PG v R and Ibbotson v R.
  • Breach of trust in a parental or quasi-parental relationship constitutes a significant aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly where the offender exploited the victim's vulnerability during periods of sole care.
  • Under the totality principle, a sentencing court must calculate individual sentences for each offence, apply accumulation and concurrency principles, and then review the aggregate to confirm it is just and appropriate for the overall criminality without becoming a crushing sentence: Johnson v The Queen [2004] HCA 15; R v Chan [2000] NSWCCA 345.
  • A Form 1 offence (here, aggravated filming without consent) is taken into account in fixing the sentence for the principal offence to which it is attached but does not generate a separate conviction or additional sentence.
  • Escalating seriousness across a series of offences committed against the same child victim over time is a relevant factor that may justify progressively higher indicative sentences across individual counts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 91K(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2)(k), 25D(2)(b)(ii), 44(3), 53A, Pt 4 Div 1A

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Johnson v The Queen [2004] HCA 15
- PG v R [2017] NSWCCA 179
- R v AJP [2004] NSWCCA 434
- R v BJW [2000] NSWCCA 60; 112 A Crim R 1
- R v Chan [2000] NSWCCA 345
- R v Evans (Court of Criminal Appeal (NSW), 24 March 1988, unreported)
- R v Gavel [2014] NSWCCA 56
- R v KNL [2005] NSWCCA 260
- R v MAK [2006] NSWCCA 381
- R v PGM [2008] NSWCCA 172
- R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
- RH McL v The Queen (2000) 203 CLR 451