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Kim v Police

Kim v Police

Case [2011] SASC 221 9 December 2011

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KIM v POLICE
[2011] SASC 221
Judgment of The Honourable Justice Gray
9 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
Appeal against sentence - the defendant pleaded guilty to the offence of aggravated assault committed on 12 August 2011 and to the offence of assault committed on 13 August 2011 - the offences were committed against two different victims - pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Magistrate sentenced the defendant to 18 months imprisonment with a non-parole period of six months - where the defendant was of Korean background - where the defendant perceived that contrary to Korean culture, he had been disrespected by a younger man and that that warranted discipline - whether the sentence imposed was manifestly excessive - whether the Magistrate erred in failing to suspend the sentence - in particular, whether the Magistrate failed to have proper regard to the cultural circumstances giving rise to the offences.
Held: Appeal dismissed - it is improbable that Korean culture would call for the abuse that occurred in this case - the Magistrate was correct in concluding that the gravity of the defendant's conduct called for an immediate term of imprisonment - the head sentence and non-parole period imposed were not manifestly excessive - the Magistrate did not overlook any relevant matter or have regard to any irrelevant matter.
Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A and s 38(2a); Correctional Services Act 1982 (SA) s 66; Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.
R v Rainbird (1974) 63 LSJS 173; R v Harkin (2011) 109 SASR 334; R v Elmir [2003] NSWCCA 192; Lovell v The Queen [2006] NSWCCA 222; R v Perdikoyiannis, Condo & Peabody [2011] SASCFC 82; Stewart v Police [2010] SASC 28; R v Shrestha (1991) 173 CLR 48; Cohen v Western Australia (No 2) (2007) 180 A Crim R 348, considered.

KIM v POLICE
[2011] SASC 221
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
Introduction
The defendant and appellant, Yoo Jung Kim, was charged with the offence of aggravated assault committed on 12 August 2011[1] and the further offence of non-aggravated assault committed on 13 August 2011.[2]
[1] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA).
On 15 September 2011, the defendant appeared in the Adelaide Magistrates Court and following his pleas of guilty was convicted and sentenced in respect of his offending. The Magistrate exercised his discretion pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed the one sentence of imprisonment for both offences. The defendant was sentenced to a term of…

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 Police

Details

AGLC: Kim v Police [2011] SASC 221
Case: [2011] SASC 221
Decision Date: 9 December 2011

CaseChat Overview and Summary

The appeal in Kim v Police concerns the sentence imposed by the Magistrate on the defendant, Kim, who pleaded guilty to two separate assault offences. The first offence, an aggravated assault, was committed on 12 August 2011, and the second, a general assault, was committed on 13 August 2011. Both offences were committed against different victims. The Magistrate sentenced Kim to 18 months imprisonment with a non-parole period of six months under section 18A of the Criminal Law (Sentencing) Act 1988 (SA). The appeal focused on whether the sentence was manifestly excessive and whether the Magistrate erred in not suspending the sentence. The appeal also examined whether the Magistrate failed to consider the cultural circumstances that gave rise to the offences, particularly Kim's perception that he had been disrespected by a younger man, contrary to Korean cultural norms.

The primary legal issues in this appeal centred around the proportionality of the sentence and whether the Magistrate appropriately considered Kim's cultural background in imposing the sentence. The appeal argued that the sentence was manifestly excessive and that the Magistrate should have suspended the sentence. Additionally, it was contended that the Magistrate failed to have proper regard to the cultural circumstances, which played a role in the commission of the offences. The appeal raised questions about the balance between the need for general deterrence and the individual circumstances of the offender.

In dismissing the appeal, the court held that it was improbable that Korean culture would condone the level of abuse that occurred in this case. The court found that the Magistrate was correct in concluding that the gravity of Kim's conduct warranted an immediate term of imprisonment. The court also determined that the head sentence and non-parole period imposed were not manifestly excessive. The court found no evidence that the Magistrate overlooked any relevant matters or considered any irrelevant matters in the sentencing process. Consequently, the appeal was dismissed, and the original sentence stood affirmed.

The final orders of the court were to dismiss the appeal and uphold the sentence imposed by the Magistrate. The 18-month imprisonment term with a non-parole period of six months was maintained. This decision underscores the importance of considering the gravity of the offence and the need for appropriate general deterrence, while also acknowledging the limitations in applying cultural considerations to criminal sentencing.

Orders