Kim v The King - [2025] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0118

AHN SUP KIM Applicant

v

THE KING Respondent
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JUDGES: T FORREST JA

WHERE HELD: Melbourne

DATE OF HEARING: 11 February 2025

DATE OF JUDGMENT: 11 February 2025

DATE OF REASONS: 18 February 2025

MEDIUM NEUTRAL CITATION: [2025] VSCA 10

JUDGMENT APPEALED FROM: [2024] VCC 553 (Judge Hassan)
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APPLICATION FOR LEAVE TO APPEAL DETERMINED BY A SINGLE JUDGE PURSUANT TO s 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Appeal – Sentence – Rolled-up charges of sexual assault – Total effective sentence of 12 months’ imprisonment – Applicant had served 539 days of pre-sentence detention – Whether sentencing judge erred in failing to consider applicant’s pre-sentence detention – Whether sentence was manifestly excessive – Can a wrongly-served presentence detention be considered in subsequent sentencing – Novel question of law – Leave to appeal allowed.
CRIMINAL LAW – Appeal – Sentence – Rolled-up charges of sexual assault – Total effective sentence of 12 months’ imprisonment – Whether sentencing judge failed to consider sexual assault sentences that were imposed prior to re-trial – Applicant failed to establish this ground of appeal – No merit – Leave to appeal refused.
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Counsel

Applicant: Mr D A Dann KC

Respondent: Mr J Dickie

Solicitors

Applicant: Doogue + George Defence Lawyers

Respondent: Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA:
1The applicant (Dr Ahn Sup Kim) was charged on 13 June 2019 with six charges of sexual assault, one charge of rape and one charge of administering a drug for sexual purposes. The matter proceeded to trial before a County Court judge and the applicant was convicted by a jury of all charges, but for the drug administration charge. The applicant was sentenced to a total effective sentence of 7 years and 6 months’ imprisonment with a non-parole period of 5 years.
2The applicant successfully appealed against conviction on the remaining seven charges which were remitted to the County Court for retrial. By the time he was bailed, he had served 539 days’ imprisonment.
3The matter resolved into a plea on 5 December 2023. The six sexual assault charges were rolled up into a single charge of sexual assault. The rape charge was withdrawn by the prosecution.
4A plea in mitigation was put on behalf of the applicant during which it was submitted that the presentence detention of 539 days was a significant factor that ought operate to mitigate the sentence.
5In the event a different judge sentenced the applicant to 12 months’ imprisonment on the rolled up charge and made a presentence declaration of 539 days.
6The applicant sought leave to appeal against this sentence on three grounds expressed as follows:
Ground 1: The Learned Sentencing Judge erred in failing to take into account that the 539 days the Applicant spent in custody would far outweigh any sentence that could be imposed on the sexual assault charge.
Ground 2: The Learned Sentencing Judge erred in failing to have…

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 10
Case: [2025] VSCA 10
Decision Date: 11 February 2025

CaseChat Overview and Summary

The case of Kim v The King involved an appeal against a sentence imposed on the applicant following a conviction for multiple charges of sexual assault. The High Court of Australia was asked to determine whether the sentencing judge had erred in not taking into account the applicant's pre-sentence detention and whether the sentence was manifestly excessive. The applicant, who had already served 539 days in pre-sentence detention, was sentenced to a total effective term of 12 months' imprisonment. The applicant argued that the sentencing judge failed to consider his pre-sentence detention and the prior sentences he received for the same offences before the re-trial.

The court was tasked with resolving two primary legal issues. First, whether the sentencing judge erred by not considering the applicant's pre-sentence detention, and second, whether the total effective sentence was manifestly excessive. Additionally, the court needed to address the novel question of whether a wrongly-served pre-sentence detention could be considered in subsequent sentencing. The court had to balance the principles of sentencing proportionality with the need to ensure that the applicant does not benefit from an error in the application of the law during the initial detention period.

In its reasoning, the court determined that the sentencing judge did not err in failing to consider the applicant's pre-sentence detention. The court held that the applicant's pre-sentence detention was not a matter that needed to be considered in the sentencing process as it was a separate and distinct aspect of the legal process. The court found that the applicant had not established that the sentencing judge failed to consider prior sentences imposed before the re-trial, and thus, this ground of appeal had no merit. The court further held that the sentence was not manifestly excessive, given the nature and circumstances of the offences. The High Court allowed leave to appeal on the question regarding the consideration of wrongly-served pre-sentence detention but refused leave on the grounds of considering prior sentences and the sentence's excessiveness.

The final orders of the court were to allow leave to appeal on the novel question of law regarding wrongly-served pre-sentence detention and to refuse leave to appeal on the grounds of the sentencing judge's failure to consider prior sentences and the sentence's excessiveness. The court did not provide a definitive answer to the novel question but recognised its importance for future cases involving similar circumstances.

Orders