Citation: R v KIM [2000] NSWCCA 489 revised - 18/12/2000
Court: NSW Court of Criminal Appeal
Date: 24 November 2000
Judge(s): Barr J; Carruthers AJ
Background
The applicant, a Korean national residing in Australia on a student visa, pleaded guilty in the District Court to two counts of robbery in company and one count of robbery in company with deprivation of liberty. Each offence carried a maximum of 20 years' imprisonment. The offences occurred in November 1998, when the applicant was almost 19 years old and nearing the end of Year 11. He had accumulated financial difficulties and, lacking any prior criminal experience, sought out an associate known to have committed similar offences before.
The offending involved the applicant and three others surrounding three 16-year-old schoolboys at Central railway station in Sydney, forcing them into the basement of a nearby restaurant, taking their wallets, and demanding $300. Two victims were sent to retrieve the money under a threat that they would be killed if they did not return. The third was detained as a form of security. The victims instead reported the matter to police, and the applicant was arrested and participated in a candid police interview.
The sentencing judge, Gibson QC DCJ, imposed fixed concurrent terms of nine months on the first two counts and a concurrent term of two years, eleven months and two weeks on the third count, with a minimum term of eleven months and two weeks. His Honour also made a recommendation for deportation. The applicant sought leave to appeal against the sentences and that recommendation.
Legal Issues
- Whether the sentences imposed were manifestly excessive or demonstrated error, particularly when compared with sentences imposed on co-offenders who were young persons
- Whether the applicant had a legitimate sense of grievance arising from the disparity between his sentence and those of his younger co-offenders
- Whether the deportation recommendation was made in breach of the rules of natural justice, specifically the requirement that the applicant be given notice and an opportunity to be heard before such a recommendation was considered
Decision
On the sentencing grounds, the Court accepted that the experienced co-offender W played a leading role in the offending. However, the Court found that the applicant's own criminality was not minor by comparison: it was the applicant who initiated the scheme, contacted W specifically because of his criminal experience, and stood to receive the majority of any proceeds. The Court rejected the characterisation of the offending as akin to "schoolyard bullying" and was not persuaded that a non-custodial sentence was demanded by the objective or subjective circumstances.
On the question of disparity, the Court acknowledged the principle that a co-offender may have a justifiable sense of grievance if sentenced more harshly than another whose culpability is not materially different. However, the Court considered the applicant's greater age and his initiating role, and found no error in the sentencing judge's approach that would justify interference with the sentences imposed. The appeal against sentence was dismissed.
On the deportation recommendation, the Court found that the sentencing judge had made the recommendation without giving the applicant any notice or opportunity to respond. The Court held that making such a recommendation in those circumstances constituted a plain breach of the rules of natural justice. The potential consequences were significant: the applicant's family members were also in Australia on temporary visas and were hoping to obtain permanent residency, meaning a deportation recommendation could have far-reaching effects on the whole family's business and personal life. The Court concluded the recommendation was inappropriate and quashed it.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
- Recommendation for deportation quashed
Key Takeaways
- A sentencing court that initiates a co-offender's criminal enterprise, even without prior criminal experience, may be found to bear substantial personal culpability notwithstanding that a more experienced co-offender played a leading operational role.
- A recommendation for deportation is a separate and additional step beyond the imposition of sentence, and courts must give the accused adequate notice and a proper opportunity to be heard before making such a recommendation.
- Making a deportation recommendation without any notice to the defence constitutes a plain breach of natural justice, regardless of the court's discretion to make such an order.
- In assessing sentence disparity between co-offenders, differences in age and in the nature of each participant's contribution to the offending are legitimate bases for distinguishing between sentences, even where co-offenders were dealt with in the same proceedings.
- The Court of Criminal Appeal confirmed the approach taken in earlier decisions, including R v Chanh and R v Luong, that deportation recommendations require procedural fairness and that courts should be cautious about such recommendations where they may affect not only the offender but also family members with their own immigration status.
Legislation and Cases Referenced
Cases:
- R v Chanh, Court of Criminal Appeal, 16 December 1992 (unreported)
- R v Govinden (1999) 106 A Crim R 314
- R v Luong [2000] NSWCCA 139
- R v Beswajeet Singh, Court of Criminal Appeal, 16 December 1994 (unreported)
Legislation: No specific legislation was identified in the metadata or the provided text, though the offences of robbery in company and robbery in company with deprivation of liberty each carried a maximum of 20 years' imprisonment under the applicable provisions at the time.