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Kim v The King

Kim v The King

Case [2025] VSCA 238 25 September 2025

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0118

AHN SUP KIM	Appellant
v
THE KING	Respondent

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JUDGES:	PRIEST ACJ and WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2025
DATE OF JUDGMENT:	25 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 238
JUDGMENT APPEALED FROM:	DPP v Kim [2024] VCC 553 (Judge Hassan)

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CRIMINAL LAW – Appeal – Sentence – Sexual assault – Rolled-up charge – Sentence of 12 months’ imprisonment – Plea of guilty – Sentence imposed after earlier successful conviction appeal – Whether sentencing judge failed to pay proper regard to previous sentence – Whether judge failed properly to take into account pre-sentence detention – Whether sentence manifestly excessive – Appeal dismissed.

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Counsel
Appellant:		Mr DA Dann KC
Respondent:		Ms S Lenthall
Solicitors
Appellant:	Doogue + George Defence Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST ACJ
WALKER JA:

Introduction

On 5 March 2022, following a 14 day trial, a jury in the County Court convicted the appellant of one charge of rape (charge 7) and six charges of sexual assault (charges 2 to 6 and 8).[1] A month later, on 8 April 2022, Judge Tinney sentenced the appellant to seven years and six months’ imprisonment, with a non-parole period of 5 years, the sentence being structured as follows:
[1]The applicant was found not guilty on charge 1, administering a drug for sexual purposes.

Charge Offence Sentence Cumulation

2 Sexual assault[2] 2 months

3 Sexual assault 1 month

4 Sexual assault[3] 4 months 1 month

5 Sexual assault 9 months 1 month

6 Sexual assault 5 months 1 month

7 Rape[4] 7 years and 3 months Base

8 Sexual assault 4 months

Total effective sentence: 7 years and 6 months’ imprisonment

Non-parole period 5 years

[2]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 40. The maximum penalty is 10 years’ imprisonment.
[3]The applicant was sentenced as a serious sexual offender on charges 4 to 8.
[4]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 38(1). The maximum penalty is 25 years’ imprisonment.

This Court set aside the appellant’s convictions on 22 August 2023 and granted him a new trial.[5] At the same time, the Court granted bail to the appellant, who had been in custody up to that point for 539 days.
[5]Kim v The King [2023] VSCA 228 (Priest, Taylor and Walker JJA).
As it happened, however, there was no retrial, because the matter resolved on 5 December 2023. Subsequently, on 20 December 2023, the appellant pleaded guilty in the County Court to a single ‘rolled-up’ charge of sexual assault.
Following a plea in mitigation, on 26 April 2024 the judge sentenced the appellant to 12 months’ imprisonment, and declared that the period of 539 days was to be reckoned as already served under the sentence.[6]
[6]Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that, but…

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 The King

Details

AGLC: Kim v The King [2025] VSCA 238
Case: [2025] VSCA 238
Decision Date: 25 September 2025

CaseChat Overview and Summary

Kim appealed against his sentence for sexual assault, arguing that the sentencing judge failed to properly consider his previous sentence, the time he spent in pre-sentence detention, and whether the sentence was manifestly excessive. The case was heard in the High Court of Australia. Kim had pleaded guilty to the charge and the sentence was imposed following a successful appeal against an earlier conviction. The primary issues for the court to determine were whether the sentencing judge had failed to appropriately consider Kim's previous sentence and the time he had already spent in custody prior to sentencing, and whether the sentence of 12 months' imprisonment was manifestly excessive.

The court examined whether the sentencing judge had erred by not sufficiently acknowledging the previous sentence and pre-sentence detention. The court also assessed the overall appropriateness of the sentence in the context of the crime committed. The High Court concluded that the sentencing judge had adequately considered the previous sentence and the time spent in pre-sentence detention. The court found that the sentence was not manifestly excessive given the nature of the crime and the need for deterrence and denunciation. The appeal was therefore dismissed, and the original sentence upheld.

The final orders of the court were to dismiss the appeal and affirm the sentence of 12 months’ imprisonment imposed by the lower court. The court found that the sentence was within the appropriate range for the offence and that the sentencing judge had properly considered all relevant factors.

Orders