Kim v Police - [2011] SASC 221

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 imprisonment of 18 months, a non-parole period of six months was fixed and the sentence was backdated to commence on 13 August 2011, the date on which the defendant was first taken into custody.
The circumstances of the defendant’s offending were serious. Some months prior to the assault on 12 August 2011 an incident had occurred at a dance held at a club. Those attending were from the Korean community. As best as can be determined, the defendant perceived that he had been insulted by a younger Korean man. The defendant at the time was 22 years of age and the other man was 19 years of age. The Magistrate was informed that the conduct of the younger man according to Korean culture showed disrespect to the older man. It was said that the younger man’s conduct was significantly disrespectful and according to the Korean culture, was “worthy of some disciplinary action”.
In the early hours of the morning of 12 August 2011, the defendant rang the younger man offering to buy food and arranging to “catch up”. The defendant made arrangements later in the day for another man to bring the younger man to the defendant’s room. When they arrived one other man was present. The younger man, who became the complainant, was ordered to kneel on the floor. The defendant demanded that the complainant tell him what he had done wrong, referring to the incident at the dance. This demand was repeated many times. As the demand was being repeated the defendant kicked the complainant in the face with sufficient force that he fell backwards. As the complainant tried to get up he was slapped, punched and kicked to the face and stomach. The defendant then took hold of a golf club with a black rubber handle and struck the complainant to the head with the end of the golf club and then struck him twice to the arm with the handle. He then used the shaft of the golf club to strike the complainant on about ten occasions to his arms and back. While this was occurring the defendant was kicking the complainant. The defendant then took up a hollow pipe from a vacuum cleaner and while referring to the incident at the dance, struck the complainant on the thigh and arm on about ten occasions. The defendant then demanded that the complainant lie on the floor and said that he would strike him one hundred times with the hollow pipe and that he would then be allowed to leave. As the blows were being struck with the hollow pipe others in the room were counting the blows. By this time the complainant was begging for mercy and crying out as he was concerned that the defendant would kill him. After about 50 blows the defendant stopped the assault and allowed the complainant to leave. As the complainant left the defendant informed him that if there was any further trouble he would arrange for him to be killed. Other threatening remarks were made.
The complainant, as a consequence of the injuries sustained, had trouble walking and needed assistance. He eventually made his way later that day to the police where he complained of the assault. He was then taken to hospital. The defendant was arrested on the following day and taken into custody.
The complainant described his injuries in his deposition. He sustained bruising to both eyes and to his right cheekbone. He had grazes on his left temple and jaw and there were swollen lumps on the left side of his head. His left upper arm was blue and swollen with bruises and raised bloody grazes were present. There was a raised red and blue bruise along his right arm. The backs of both thighs were covered with raised welts and bruises that were red and blue in colour. On the back of the right thigh there was blood clotting under the skin. The skin to the right thigh was broken and bleeding.
The Victim Impact Statement set out details of the impact of the assault. Although the complainant had recovered from the physical injuries sustained, he has been left with ongoing emotional and psychological damage.
The assault on 13 August 2011 involved a different complainant. The defendant was waiting outside the complainant’s apartment and when the complainant arrived he was with another person. Both he and the other person were escorted by the defendant and two others to the south parklands in Adelaide. The complainant was told to sit down. The defendant challenged the complainant about whether he had been with the first complainant from the earlier assault. The defendant then kicked the complainant in the face, striking his left cheek with sufficient force to cause the complainant to fall backwards. When he sat up the defendant slapped him to the left side of the face with an open hand. The defendant then answered a mobile telephone call and at the completion of the call, he began to walk towards the South Terrace tram stop. The defendant threatened the complainant about sending him to hospital.
The Magistrate when sentencing provided extensive remarks. In the course of those remarks he noted the age of the defendant and in particular the need to have regard to the defendant’s youth when sentencing. The Magistrate set out the defendant’s personal antecedents, in particular his Korean nationality and the circumstances in which he came to Australia to study. He noted the presence of the defendant’s mother in Court and the support provided to the defendant by his family. The Magistrate specifically had regard to the fact that the defendant would face particular difficulty as a Korean in an Australian gaol with his family in Korea. The Magistrate made specific reference to the fact that the defendant’s study in Australia which had continued for some years had been brought to an end by his criminal behaviour.
The Magistrate accepted the submission put by the defendant’s counsel that according to Korean culture the behaviour of the first complainant to the defendant had been disrespectful and would call for some form of discipline. The Magistrate accepted that the cultural matters provided an explanation for the occasion to discipline but rejected the suggestion that cultural considerations could in any way justify the assault that had occurred. Letters tendered to the Magistrate from the defendant’s mother and a family friend spoke of the defendant’s conduct has being totally out of character. There was no suggestion in either letter that cultural considerations could explain the vicious and prolonged assault that occurred. The Magistrate noted that counsel for the defendant did not suggest that a period of imprisonment was inappropriate.
It was plain to the Magistrate that the defendant intended to return to Korea as soon as practicable. He noted this as being his “ultimate intention upon release”. The Magistrate did not give express consideration to the issue of deportation. It appears that no submissions were made to the Magistrate in this regard.
The thrust of the submission put to the Magistrate was that he should exercise his discretion and suspend any term of imprisonment imposed. The Magistrate noted the defendant’s early plea, the fact that he was a first offender, his good career prospects and his family support. The Magistrate in his remarks had particular regard to authorities dealing with the discretion to suspend. Ultimately, the Magistrate concluded as follows:
As to suspension, I note the plea of guilty can be a relevant factor. Certainly the young age of the offender is a relevant factor. A first offender with no relevant prior convictions is very relevant. Good prospects for rehabilitation combined with family support, is a relevant factor. The fact that immediate imprisonment would be disruptive of education and therefore somewhat counter productive to rehabilitation again is a factor for me to consider.
Mr Kim, you can see I have a number of papers in front of me, summaries of a lot of cases which talk about the principles that I have just espoused. I want you to be very well aware, Mr Kim, that I have taken those matters into account. You are a young man with no previous offending history and I have already mentioned all the factors that I take into account. I do need to balance your personal circumstances with your offending.
I am of the view that a period of imprisonment is, without question, the only appropriate penalty to be imposed and I am of that view because of the extremely serious nature of your offending. Your offending on 12 August involved you deliberately and systematically inflicting pain on the victim. I am conscious of the cultural aspect to the matter but your offending was serious and went far beyond that.
The Magistrate, as earlier indicated, decided to proceed pursuant to section 18A of the Sentencing Act. He fixed a notional head sentence of 15 months having made a reduction of five months on account of the early plea in respect of the aggravated assault charge. He fixed a notional head sentence of three months having made a reduction of one month in respect of the assault charge. The Magistrate considered that the notional head sentences should be served cumulatively and arrived at the one head sentence of imprisonment of 18 months.
The Magistrate then considered an appropriate non-parole period. Having regard to all relevant matters, in particular the youth of the defendant and the fact that he was a first offender, he fixed a mercifully short non-parole period of six months.
The Magistrate in his remarks made it plain that he considered it inappropriate to proceed under section 38(2a) of the Sentencing Act to partially suspend the sentence. The discretion under that section can only have application to a head sentence of more than three months and less than 12 months.
The Magistrate concluded his remarks by repeating his earlier observation that immediate imprisonment was a penalty of last resort. The Magistrate drew attention to section 11 of the Sentencing Act and made it plain that he considered that the gravity of the defendant’s conduct led to the conclusion that no other sentence was appropriate.
The Appeal
On appeal it was submitted that the sentence was manifestly excessive and further that the Magistrate erred in failing to suspend the sentence. In particular, it was said that the Magistrate erred in rejecting submissions regarding the defendant’s mental state at the time of committing the offences without hearing evidence on the matter; that the Magistrate erred in failing to sentence the defendant on the factual basis most favourable to the defendant; and, that the Magistrate erred in failing to give due consideration to the issue of provocation. In respect of the Magistrate’s decision not to suspend the sentence, the defendant contended that the Magistrate failed to have proper regard to the cultural circumstances giving rise to the offences and that the Magistrate erred in failing to find that the matters personal to the defendant amount to good reason to suspend the sentence of imprisonment.
It was accepted that little information was placed before the Magistrate about the cultural circumstances giving rise to the offences. The same must be said for the appeal. An analogy was sought to be drawn as to the regard courts have to cultural matters when sentencing indigenous Australians. It was said that the more informal sentencing processes adopted in regard to indigenous Australians could and should have been adopted in the present proceeding. It was accepted however, that no application had been made to the Magistrate to conduct any such informal sentencing process.
I consider that Korean culture was a relevant consideration. The Magistrate accepted that the defendant had believed that he had been dealt with disrespectfully by the complainant of the aggravated assault and that he saw a need to discipline the complainant. However, there was no information before the Magistrate that Korean culture involved the type of sustained physical abuse that occurred. As pointed out earlier, letters from the mother and family friend contained no suggestion that Korean culture justified what had occurred. The tenor of both letters is to the contrary. For my part, I consider it improbable in the extreme that Korean culture would call for the abuse that occurred in this case. I reject that suggestion.
It is of importance that persons from different cultures coming to Australia understand the laws of this country and in particular, it is of importance that conduct such as that of the defendant on 12 August 2011 and 13 August 2011 will be viewed as very serious criminal conduct and will not to be tolerated. If Korean culture is as suggested, then the need for general deterrence would be all the greater.
This Court has on occasions considered the significance when sentencing of deliberate premeditated actions to effect private retribution. The observations of Bray CJ in Rainbird are of particular relevance:[3]
Her Honour said in imposing sentence, “..the community cannot allow people to wage private warfare and serious acts of retaliation like this one cannot go unpunished.” With that I emphatically agree. As I said in another case recently, violence has increased, is increasing, and ought to be diminished, and what the courts can do to achieve the diminution of violence it is their duty to do. I suppose it will never be possible to prevent acts of violence committed in moments of passion, because when peoples’ anger is aroused very often they have no time to think, and act impulsively. Such cases, in my view, should be treated more leniently than a case like this where the whole thing was premeditated. It seems to me that the three accomplices set out with a deliberate intention to avenge themselves by violence. The law provides ample redress for violence. If the applicant was assaulted on a previous occasion she had her remedy, she could have gone to the police. It cannot be permitted that people should take the law into their own hands in this way and be judge, jury and executioner in their own cause.
[3] R v Rainbird (1974) 63 LSJS 173, 173.
Attacks in revenge threaten the security of our community.[4] Taking the law into one’s own hands undermines the manner in which our justice system operates.[5]
[4] R v Harkin (2011) 109 SASR 334, [42].
[5] R v Harkin (2011) 109 SASR 334, [42] (Gray and Sulan JJ) citing Director of Public Prosecutions v Whiteside (2000) 1 VR 331; R v Sheekey [1996] EWCA 385; see also R v Harkin (2011) 109 SASR 334, [92]-[96] (White J); see further R v Elmir [2003] NSWCCA 192, [20]; Lovell v The Queen [2006] NSWCCA 222, [70].
In Perdikoyiannis, the authorities were reviewed. I there observed the following, with the agreement of Anderson and White JJ:[6]
The courts must take deliberate, pre-meditated actions, conducted in concert with others, in circumstances of private retribution or vigilante conduct seriously. This is necessary for the preservation of the rule of law in our society, as such conduct is the “antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms”.[7] As Latham J observed in Willetts and Gurney:[8]
… The rule of law is the mark of a civilised society. It allows all of its citizens to live under its protection, confident and secure in the knowledge that if punishment is to be meted out for criminal behaviour, it will only be justified by the observance of the due process of the law. The respect of the community for the rule of law is essential to its maintenance. For these reasons, the penalty must reflect the law’s denunciation of acts of violence carried out by some members of the community against others, in the name of revenge or retribution, no matter how abhorrent the behaviour of those sought to be summarily punished.
[6]    R v Perdikoyiannis, Condo & Peabody [2011] SASCFC 82, [44].
[7]    Barlow v The Queen (2008) 184 A Crim R 187, [40] (Hall J, with whom McClellan CJ at CL and Price J agreed).
[8]    R v Willetts and Gurney [2009] NSWSC 1201, [13].
I consider that the Magistrate was correct in concluding that the gravity of the defendant’s conduct called for an immediate term of imprisonment. The defendant was exposed to a maximum term of imprisonment of four years in respect of the offence of aggravated assault and two years imprisonment in respect of the offence of assault. Notwithstanding the personal antecedents referred to earlier, the one head sentence of 18 months imprisonment was within the sentencing discretion of the Magistrate. A non-parole period of six months was merciful and in the circumstances appropriate.

During the course of the appeal I was concerned to be properly informed about the possible deportation of the defendant to Korea. A number of authorities have considered the relevance of deportation for sentencing. Most recently, White J in Stewart concluded that the deportation may well be relevant to the Court’s consideration of the fixing of the non-parole period or the suspension or a partial suspension of a custodial sentence.[9] Common sense would suggest that the fact of impending deportation would be relevant. There is little point in fixing a non-parole period in a case where the defendant will be out of the country for the duration of any period on parole. The same may be true in regard to a suspended sentence.
[9] Stewart v Police [2010] SASC 28, [36]-[39].
The sentence imposed by the Magistrate relates, however, to crimes of personal violence and as such the defendant is not entitled to automatic parole under section 66 of the Correctional Services Act 1982 (SA). It follows that any release on parole will be subject to the discretion of the Parole Board. Accordingly, it is possible that the defendant may spend more than six months in custody.
In my view the present state of authority is that a sentencing court is not obliged to have regard to an impending deportation.[10] However, when it may impact in a relevant way on the sentencing discretion, the Court may have regard to that fact.
[10] See Cohen v Western Australia (No 2) (2007) 180 A Crim R 348 where Steytler P observed that “it is clear that the possibility of deportation alone cannot be taken into account in mitigation of sentence”. His Honour cited Houghton v Western Australia (2006) 32 WAR 260, [23], Dauphin v The Queen [2002] WASCA 104, [21]-[22], R v Latumetan [2003] NSWCCA 70 and R v Pham [2005] NSWCCA 94 to support that principle. See also, R v Shrestha (1991) 173 CLR 48, 58.
In Cohen,[11] Steytler P discussed the relevance of a cancellation of a resident visa and the prospect of deportation on sentencing. In particular his Honour discussed the possibility that these matters may make imprisonment more arduous for a particular offender. The Magistrate in the present proceeding had regard to difficulties the defendant may face in prison.
[11] Cohen v Western Australia (No 2) (2007) 180 A Crim R 348, [21]-[29].
I do not consider that it has been established on this appeal that the Magistrate overlooked any relevant matter or had regard to any irrelevant matter. I do not consider that the sentence imposed was outside the Magistrate’s sentencing discretion. I do not consider the sentence imposed to be manifestly excessive.
The appeal is dismissed.