Kim v Arbuckle - [2009] QDC 267

[2009] QDC 267

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 732 of 2009

EDWARD HAHN KIM	Appellant
and
KENNETH WILLIAM ARBUCKLE	Respondent

BRISBANE

..DATE 03/07/2009

ORDER

CATCHWORDS: Justices Act 1886 s 222 - Penalties and Sentences Act 1992 s 1608(2) - appeal against sentence succeeded when Magistrate failed to explain why a parole eligibility date well beyond the half-way mark was set or to give the parties an opportunity to make submissions about that course - fixing a date for release on parole was not precluded by a declaration of a continuing period of remand custody as time served under a sentence of imprisonment newly pronounced.

HIS HONOUR: This appeal against sentence under section 222 of the Justices Act 1886 has been brought on by special arrangement early without the Court's standard listing procedures being gone through. It brings some credit on the system that this occurs in consequence of what Ms Litchen noticed on review of this and similar files which are her responsibility. She enlisted the cooperation of Legal Aid in getting the matter brought on early, which is very much in the interests of all concerned.

On the 10th of March 2009 in the Magistrates Court at Brisbane the appellant, whose date of birth is the 7th of April 1990, pleaded guilty to two charges of assault occasioning bodily harm which occurred on the 1st of August 2008. These were instances of repellent, totally unprovoked street violence in the city at night time. Worse, two assaults which occurred during a single fracas, which the appellant and his group appeared anxious to foment, came on top of previous convictions for assaults by him on two other individuals. They were dealt with in the Magistrates Court at Southport. The appellant at the time of the new offences was on parole, having had the advantage of a parole date fixed by the Court at Southport which saw him admitted to parole immediately. There had been 20 days pre-sentence custody.

The appellant had been in custody since the 1st of August 2008 but on different bases. He was serving the original sentence until the 1st of November 2008 and thereafter held in custody on remand. There were 128 days of such remand custody when sentence was pronounced by her Honour. That appears to have been overlooked when the sentence was pronounced. Her Honour had the advantage of common ground being reached at the Bar Table that an appropriate head sentence was 18 months, which in deference to those factors that could be considered favourable to the appellant, namely, his youth and his guilty plea, the legal representatives suggested could be ameliorated by some order leading to release of Mr Kim after six or seven months.

That outcome strikes me as one which would have been appropriate.

When her Honour came to pronounce sentence, however, she seized on the seven months, it would seem, fixing a parole eligibility date seven months after sentence. The consequence of that is that more than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kim v Arbuckle

Details

AGLC: Kim v Arbuckle [2009] QDC 267
Case: [2009] QDC 267
Decision Date: 3 July 2009

CaseChat Overview and Summary

In the matter of Kim v Arbuckle, the appellant, Edward Hahn Kim, appealed against his sentence imposed by the Magistrates Court at Brisbane. The appellant pleaded guilty to two charges of assault occasioning bodily harm. The legal issue in the case was whether the court was obliged to fix a parole eligibility date or a date for release on parole. The court considered the definitions in the Penalties and Sentences Act and concluded that the pre-sentence custody did not amount to a period of imprisonment. The court found that the appellant's sentence was flawed because a parole eligibility date beyond the halfway mark was fixed without reasons being given, and the parties were not given an opportunity to make submissions about that course. The appeal was allowed, and the sentence of 18 months' imprisonment was confirmed with a fixed parole date of 2nd August 2009 set. The declaration of pre-sentence custody was renewed.

Orders