Director of Public Prosecutions v Kim

[2015] VCC 1621

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01378

DIRECTOR OF PUBLIC PROSECUTIONS

v

YONG JU KIM

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2015
DATE OF SENTENCE:	13 November 2015
CASE MAY BE CITED AS:	DPP v Kim
MEDIUM NEUTRAL CITATION:	[2015] VCC 1621

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:             Causing serious injury intentionally - common assault

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:                  4 years 1 month imprisonment, non-parole period 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Mr S. Zebrowski Ms N. Resstel-Pires	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr J. Gullaci Ms U. Ebsworth	Lethbridges

HIS HONOUR: 

1Yong Ju Kim, you have pleaded guilty to one charge of causing serious injury intentionally and one charge of common assault. 

2Causing serious injury intentionally carries a maximum penalty of 20 years' imprisonment and common assault a maximum penalty of 5 years' imprisonment. 

3You are presently 23 years of age, having been born on 3 May 1992, and you were aged 22 when this offending occurred in March earlier this year. 

4You have no prior convictions.

5There are two victims in this matter.  The primary victim is Kim Uk, a chef who is now 34 years old and at the time of this incident was 33.  The secondary victim is Jung Minseok, a student and friend of the primary victim Kim Uk.

6The circumstances of the offending are as follows. 

7At approximately 12.15 am on Tuesday 24 March 2015, the victims Uk and Minseok were walking along Healeys Lane towards Lonsdale Street in the Melbourne CBD, having just been to dinner at the Jang Gun Korean restaurant.  They were smoking cigarettes. 

8Near the corner of Healeys Lane and Lonsdale Street they were approached by you and your co-offender Geunhee Lee, who asked the victims for a cigarette.  Kim Uk replied that they did not have any more cigarettes and walked away.  This angered you and Lee. 

9Either you or Lee asked, "Is there a problem, us asking for a cigarette?" and shortly thereafter, suddenly and without warning, you began using both fists to repeatedly punch the victim Uk to the face.  The act was gratuitous and unprovoked. 

10You then swept the victim's legs with what one witness described as “judo skills”: you used your right leg in a low sweeping motion to take the victim's legs out from under him, thus bringing him to the ground.

11Upon the victim Uk falling to the ground, his friend Minseok tried to come to his aid and break up the fight, but was himself punched more than five times to the face and kicked to the upper legs and body by one or both of you and Lee.  He could not stop the attack so he ran back into the restaurant to call for help.  One witness observed you punch Minseok a couple of times to the face before he ran off to call for assistance. 

12This conduct gave rise to Charge 2, the common law assault.

13Once the victim Uk was on the ground, witnesses observed you to begin kicking him to the head.  Witness Neil Jackson observed you walking around the victim, circling him and constantly kicking him from behind to the back of the head.  The victim was helpless on the ground but you continued to kick him.  Witnesses did not observe the victim trying to defend himself. 

14Witness Neil Jackson further observed the kicks as:

"… full pelt, there is no way the bloke in the blue singlet could have kicked him any harder if he tried.  He drew his legs right back with each kick, and each kick could be heard from our position approximately 40 metres away.  The kicks sounded like huge thuds.  I believe there were about eight kicks.  The bloke in the blue singlet leant over and punched the bloke in the red shirt while he was on the ground".

15I note that you were wearing a blue singlet top at the time of your arrest.

16Given the nature and ferocity of the assault, witnesses thought the primary victim was dead and were surprised to see him move when the assault finally ended. 

17This conduct gave rise to Charge 1, causing serious injury intentionally.      

18When the assault concluded, you and your co-offender went to leave but were asked to stay by a witness Woo.  You reacted aggressively to this request but nevertheless stayed at the scene until police arrived. 

19Police arrived on the scene shortly thereafter and spoke to the primary victim Uk, photographing his injuries. 

20Police then observed two men who they established to be you and your co-offender standing approximately ten metres away.  Though your English was poor, police managed to ascertain that both of you had been fighting with the victims.  Police smelt intoxicating liquor on your breath and observed that you both had trouble keeping still, were swaying and unsteady on your feet.  Police formed the view that you were both drunk.

21Both you and Lee were subsequently placed under arrest, cautioned and informed of your rights; however, police doubted that either of you understood the nature of the information given to you.  It was intended to convey you to Melbourne West Police Station where you could be interviewed with the assistance of an interpreter; however, it was determined that before you could be interviewed you would require at least four hours to sober up. 

22You were then both lodged at the Melbourne Custody Centre and whilst there police took photographs of you, Yong Ju Kim, including your hands.  Due to a lack of translator services, neither you nor Lee were able to be interviewed at that time.

23At Melbourne Magistrates' Court on Tuesday 24 March 2015 (that same morning) your co-offender Lee pleaded guilty to recklessly causing injury and was convicted and fined $2000.  Due to a lack of time and translator resources, your matter was adjourned to the following day. 

24In the meantime, further information was received regarding the primary victim's injuries and on 25 March 2015 your matter was listed for a filing hearing and uplifted into the committal stream. 

25On 30 April 2015 at the Metropolitan Remand Centre you were formally interviewed by the informant with the aid of a Korean interpreter. You made a “no comment” record of interview but consented to the taking of a forensic sample.

26In the early hours of 24 March 2015 the primary victim Kim Uk was conveyed by ambulance to the Alfred Hospital.  He presented reporting a brief loss of consciousness and with significant swelling to the left side of his face and his left forearm.  Medical investigation revealed the following injuries:

·fracture of the orbital bone around the eye

·broken jaw

·broken nose

·forearm fracture. 

27On 25 March 2015 the Orthopaedics Unit performed an open reduction and internal fixation of the left forearm. 

28Kim Uk was discharged on 26 March 2015 to be followed up in the Orthopaedics Outpatients Clinic. 

29He was re-admitted to the Alfred Hospital on 31 March 2015 and underwent further procedures by the Facio-Maxillary Unit, including orbital floor and medial wall reconstruction, reduction and fixation of the left jaw and manipulation of the nasal fracture. 

30Kim Uk was discharged home on 1 April 2015 as clinically well.  Police took photos of him in hospital on 1 April 2015.  He has subsequently been followed up in the Orthopaedic and Facio-Maxillary Outpatient Consulting Clinics.

31The secondary victim, Minseok suffered a cut to the inside of his mouth and swelling, as well as some cuts and grazes to his right arm.  He declined any medical assistance and ultimately did not see a doctor regarding his injuries.

32The primary victim Kim Uk has made a victim impact statement and that statement was read aloud on his behalf in court.  Mr Uk's quality of life has been badly affected.  He cannot enjoy the things he used to and is daily reminded of the results of your acts.  He still has difficulty eating, has had to remain home because of inability to work and his partner has had to work longer hours because of financial concerns.  He has suffered several operations, with associated pain and discomfort.  Emotionally, he has suffered anxiety and some depression and has particularly experienced anxiety when in public places.  His financial consequences have mostly been covered by the Victims Of Crime Assistance Tribunal; however, the sum of $2215 remains as a consequent loss and is subject to a compensation order. 

33The secondary victim, Jung Minseok, has not made a victim impact statement.

34I now turn to your personal circumstances. 

35As I noted earlier, you are now aged 23, you were 22 at the time of offending and you have no criminal history. 

36You are a Korean national residing in Australia on a six-month working holiday visa.  You were raised within a family of modest means and have one sibling, a brother aged 21.  Following divorce, your father has raised you and your brother alone since you were 12. 

37You completed school to final level and worked for a short time before serving two years with the Army on compulsory national service.  You are qualified as a mechanic and welder to a basic standard certificate.

38At the conclusion of your Army service you decided to visit Australia.  The motivation followed a breakdown of a personal relationship and a desire to gain a wider experience of life.  You and your close friend Geunhee Lee worked in a laundry in Port Hedland for five months and were travelling as tourists for the remaining month of your visa when the offending took place.  You were due to return to Korea in approximately one week. 

39The offending occurred after a long dinner with your friend at a restaurant and after you had consumed a large amount of an alcoholic drink known as “Saju”.  You were highly intoxicated. 

40Your family are supportive and have been very distressed by your offending acts and the consequences.  Your father made a special trip to Australia to be with you at the time of the plea and had to borrow money in order to do so.

41Intentionally causing serious injury is regarded as very serious offending and such is reflected in part in the penalty imposed by Parliament.  The incidence of unprovoked violence by alcohol- or drug-fuelled young men in public places has engaged a high level of community concern.  Ordinarily, an offender should expect a sentence of immediate imprisonment and for a substantial period.  The only explanation for your acts is your state of intoxication.  It is, however, no excuse.  The public cannot be expected to be tolerant of offenders who voluntarily consume mind-altering or -affecting substances.

42Your assault did not include the use of a weapon; however, your acts of repeatedly kicking Mr Uk to the back of his head, in particular whilst he was defenceless on the ground, were cowardly and sickening and indicate an intention to cause really serious injury.  You are fortunate that his injuries were not even more serious.  Severe head and abdominal injuries are frequently the result of the level of kicking force you applied and this type of behaviour has not infrequently resulted in death.  You also acted in the company of another. 

43Your acts were further aggravated by your participation in the further assault to Mr Minseok.

44In mitigation I have taken into account the matters submitted by your counsel, including:

·    Your plea of guilty and the early stage at which it was entered.  It has avoided the inconvenience and cost of a contested trial and the further anxiety that this causes to victims and witnesses.

·    The fact that you did not flee the scene when requested to stay and that there was no premeditation to the assaults.

·    Your relative youthfulness and immaturity.  The weight I attach to this is tempered to some extent by the objective gravity of your offending.

·    Your good character, as testified by the character evidence submitted and the absence of any prior conviction or matters pending.

·    Your remorse, as indicated by how you have responded to your father and by your letters of apology to the court and to the victim.  I accept your remorse is genuine. 

·    The time you have already spent in adult remand custody and the isolation that you have being a foreign national in an Australian gaol.  I accept that imprisonment will be more onerous for you because of that circumstance.

45Overall, I regard your conduct on this occasion as likely to have been out of character and I accept that neither you nor your family and friends thought that you could act in the way that you did.  You have otherwise lived a decent life and you have had the benefit of a loving and caring father and family.  I consider that your prospects of rehabilitation are good. 

46The fact that you will be deported after completing any minimum term of imprisonment is not a matter of hardship in your case as you were on a tourist visa and were returning to Korea very shortly after this incident.

47The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general in order to deter others from engaging in similar behavior), rehabilitation, denunciation and protection of the community.  There is also an element of a sense of retribution involved in punishment - victims are entitled to feel that justice has been done.  In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

48Usually in the case of a relatively youthful offender, the principle of rehabilitation is paramount.  However, in the circumstances of this case the principles of punishment, general deterrence and denunciation demand significant application in my sentencing consideration.  I accept that because of your personal circumstances the application of specific deterrence is moderated to some degree. 

49In sentencing you in the manner that I have, I accept that there is considerable overlap in the factual circumstances of the separate offences. Accordingly, this is reflected in the cumulation period I have directed.

50Yong Ju Kim, on Charge 1 of causing serious injury intentionally, you are convicted and sentenced to four years' imprisonment. 

51On Charge 2 of common assault, you are convicted and sentenced to two months' imprisonment. 

52Charge 1 is the base sentence. 

53I direct that one month of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. 

54The total effective sentence is four years and one month's imprisonment.

55I direct that you serve a minimum period of two years' imprisonment before being eligible for parole.

56Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 234 days, not including today, be reckoned as time already served under this sentence and I direct the fact of this declaration and its details be noted in the records of the court.

57Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence over both charges that would have been imposed is six years' imprisonment with a minimum period of four years to be served before eligibility for parole.

58At the plea hearing an order for the payment of compensation in the amount of $2215 to the primary victim, Kim Uk, was sought and consented to and I have made that order today. 

59Are there any other matters from either counsel?

60COUNSEL:  No, Your Honour.

61HIS HONOUR:  Just take a seat for the moment please, Mr Kim.  Counsel, I do not think during the course of that sentence I referred to the discussion on the issue of parity that occurred in the course of the plea submissions, and I note that that issue was accepted, as I understood it, Ms Ebsworth, by
Mr Gullaci at the time, that issues of parity do not arise because of the very distinguishable aspects of the circumstances relative to each of the offenders.

62MS EBSWORTH:  Yes, Your Honour, that was a concession that was made on the plea.

63HIS HONOUR:  All right, as long as that is clear.

64MS EBSWORTH:  Thank you, Your Honour.

65HIS HONOUR:  There is nothing further?

66COUNSEL:  No, Your Honour.

67HIS HONOUR:  Thank you.

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