Kim v The State of Western Australia
[2018] WASCA 142
•10 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KIM -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 142
CORAM: BUSS P
MAZZA JA
HEARD: 5 APRIL 2018
DELIVERED : 10 AUGUST 2018
FILE NO/S: CACR 121 of 2017
BETWEEN: KWANG HO KIM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FIANNACA J
File Number : INS 136 of 2016
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of two counts of unlawfully doing grievous bodily harm with intent - Individual sentences of 5 years 6 months' imprisonment and 7 years 6 months' imprisonment - Total effective sentence of 9 years 6 months' imprisonment - Manifest excess - Totality principle
Legislation:
Criminal Code (WA), s 294(1)
Result:
Application for an extension of time within which to appeal dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | No Appearance |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Abfahr v The State of Western Australia [2013] WASCA 87
Black v The State of Western Australia [No 2] [2010] WASCA 145
Eriha v The State of Western Australia [2011] WASCA 167
Giglia v The State of Western Australia [2010] WASCA 9
Kennedy v The State of Western Australia [2008] WASCA 185
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McCormack v The Queen [2000] WASCA 139
McKenzie v The State of Western Australia [2015] WASCA 163
McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428
Merlo v The State of Western Australia [2018] WASCA 71
Minhaj v The Queen [2000] WASCA 52
Oxenham v The State of Western Australia [2015] WASCA 30
Petrelis v The State of Western Australia [2012] WASCA 235
Roffey v The State of Western Australia [2007] WASCA 246
Rolfe v The State of Western Australia [2012] WASCA 169
Stephens v The State of Western Australia [2005] WASCA 98
The State of Western Australia v Jeffries [2007] WASCA 255
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Legge [2014] WASCA 47
The State of Western Australia v Naumoski [2013] WASCA 215; (2013) 234 A Crim R 566
Wells v The State of Western Australia [2013] WASCA 124
Zhang v The State of Western Australia [2013] WASCA 121
JUDGMENT OF THE COURT:
This is an application for an extension of time within which to appeal and for leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty, of two counts in an indictment.
Count 1 alleged that on 30 October 2015, at Belmont, the appellant, with intent to maim, disfigure, disable, or do some grievous bodily harm to Jihye Kim (Ms Kim), unlawfully wounded Ms Kim, contrary to s 294(1) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1 the appellant, with intent to maim, disfigure, disable or do some grievous bodily harm to Taesoo Kim, unlawfully did grievous bodily harm to Taesoo Kim, contrary to s 294(1) of the Code.
On 4 April 2017, Fiannaca J sentenced the appellant to 5 years 6 months' imprisonment on count 1 and to 7 years 6 months' imprisonment on count 2. His Honour ordered that the sentence for count 2 be served partly cumulatively upon and partly concurrently with the sentence for count 1. In particular, his Honour ordered that the sentence for count 2 begin 2 years after the appellant began serving the sentence for count 1. The total effective sentence was therefore 9 years 6 months' imprisonment. The sentence for count 1 and the total effective sentence were backdated to 30 October 2015. A parole eligibility order was made.
The last date for appealing was 25 April 2017. The appellant did not file his appeal notice until 2 June 2017. He has filed an affidavit sworn 26 May 2017 in support of his application for an extension of time.
The sole ground of appeal alleges that the individual sentences were manifestly excessive and the total effective sentence infringed the first limb of the totality principle.
The ground of appeal is without merit. We would therefore dismiss the application for an extension of time to appeal, refuse leave to appeal and dismiss the appeal. Our reasons are as follows.
The facts and circumstances of the offending
The facts and circumstances of the offending, as found by the sentencing judge, are not challenged. His Honour's findings, as set out in his sentencing remarks, are as follows:
To put the events of 30 October 2015 in context, it is necessary to set out some of the background. The facts are as follows.
You, Ms Kim and Taesoo Kim are all nationals of South Korea. Although you all share the same surname, you are not related.
You and Ms Kim were previously in a domestic relationship for approximately five years. That relationship ended on or about 12 September 2015 in Sydney, New South Wales.
The two of you had travelled to Australia from South Korea on a working holiday visa in October 2014, initially living in Victoria and then travelling to and working in other States, before ending up in Sydney. You met Taesoo Kim there in shared accommodation. Your relationship with Ms Kim became troubled, and you became suspicious she was having an affair with Taesoo Kim. I will say more about your relationship with Ms Kim later, but I am satisfied that you became increasingly possessive of Ms Kim and jealous of her relationship with Taesoo Kim. This led to increasingly controlling behaviour on your part, and you were sometimes violent towards Ms Kim. You also made threats to kill or harm Taesoo Kim.
Ms Kim left you on or about 12 September 2015. Either from that time or soon after, until the date of the offences, she was in a relationship with Taesoo Kim. She moved to Perth towards the end of September and Taesoo Kim joined her here later. In the meantime, you returned to Korea. However, you continued to obsess about Ms Kim and to brood over the unfair way in which you perceived she had treated you. It seems you could not accept that she wanted to be with Taesoo Kim instead of you. Even though you were upset about what she had done and you had some doubts about the kind of future you would have together, you continued to be possessive and you wanted her back.
You became aware she was in Perth and where she was living. Your behaviour became increasingly erratic.
You came to Perth on or about 4 October 2015 and confronted Ms Kim at the front of the house where she was staying in East Perth. You behaved in a very emotional way in an attempt to coerce her to come back to you. She spent the day with you to make sure you went back to Korea, which you did.
On 8 October 2015, you sent Ms Kim an emotional email, which is translated at page 367 of the prosecution brief. You described the turmoil you were suffering because she did not want to be with you, and you tried to convince her to come back to you. You said:
Do you want me to do something that could hurt you more greatly? Do you want to know what it would be like to lose your loved one? Do you? Do you want that?
You claim that you were referring to committing suicide. I accept that elsewhere in the email you appear to suggest that you would kill yourself. However, even though you were in a troubled state of mind, I find it hard to accept that you would believe she still considered you her 'loved one'. I think it is more likely that you were making a threat to harm Taesoo Kim. However, there are events closer to 30 October 2015 which shed a better light on your intentions around that time.
On 27 October 2015, you flew to Perth from Korea for one day, again to confront Ms Kim and coerce her into resuming a relationship with you. She had moved address, and it seems you did not know where she was living. However, you had become aware through social media that she was looking for work and you engaged in an elaborate deception to manipulate her into seeing you. She had applied for work in a café. You pretended to be an employer who was offering her such employment. You managed to deceive her by email into believing that the employer needed her to come to Perth urgently. When she attended the place you had specified, you confronted her, again tried to persuade her to come with you and physically prevented her from leaving. Police were called. You were taken to a police station and received a police order that prevented you from having any contact with or approaching Ms Kim until 11.00 am on Friday, 30 October 2015.
You then returned to Korea, leaving Perth the same day.
Two days later, you were again on a flight to Perth to confront Ms Kim. You were carrying among your belongings a lengthy note you had written in Korea in which you apologised to your family and detectives who might be investigating the case and indicated that you intended to kill yourself and Ms Kim. You had continued to brood over the breakdown of your relationship, obsessing over things Ms Kim had said and done in a detailed history of your relationship. You said in the note that you could not let Ms Kim keep misbehaving, and you referred to murder and suicide. Obviously, in your mind, the case that the detectives would be investigating would be for murder and suicide.
At about 7.00 am on 30 October 2015, you arrived in Perth, having travelled by plane from Inchon, South Korea. You travelled from the airport directly to the Belmont Forum Shopping Centre, where you purchased a utility knife from the Coles Supermarket. A replica of the knife, as sold, was produced at the sentencing hearing. The blade of the knife is approximately 13 cm long. It has a sharp point, and the blade also appears to be very sharp. Used as a weapon, it would be very dangerous.
The CCTV footage from the Coles store shows that you were there for only about one minute. I am satisfied the only reason you went there was to purchase a knife.
You then travelled to the residence where Ms Kim and Taesoo Kim were living on Laurie Street in Belmont. You knew that was Ms Kim's address, because it was the address you were prevented from attending by the police order. You waited in the area. It is obvious from all the circumstances that you were waiting for Ms Kim to come out so you could confront her. I am also satisfied that, by that stage, you had removed the knife from its packaging. That is because, as the events then unfolded, you had the knife ready to use. You did not remove it from the packaging at that time. The plastic packaging would take some effort to open, and the knife would then need to be removed from the plastic wire tie that holds it in place.
Around 8.30 am, both Ms Kim and Taesoo Kim left the house and got into their car across the road. As they were about to leave, you approached the driver's door and asked to talk. They got out of the vehicle and moved to the driveway to talk to you.
There was then a discussion between the three of you. Although they made it clear they did not want to speak with you and that your continued pursuit of Ms Kim was not welcome, they were civil to you and even gave you a glass of water from the house because you seemed thirsty. However, you persisted in wanting to know about the relationship between Ms Kim and Taesoo Kim, and you wanted to speak with Ms Kim to convince her to come back with you.
Taesoo Kim warned you that if you did not let them leave, they would call the police, as you were in breach of the police order.
As Ms Kim then began to phone the police, you struck Taesoo Kim with the knife in the area of his neck, causing a large laceration to the right side of his neck, severing a major blood vessel. You attempted to strike him again, but missed.
You then swung the knife sideways at Ms Kim, striking her on the left hand, causing lacerations to her knuckle area. You then tried to punch the knife into Ms Kim, but you were stopped by Taesoo Kim, who grabbed the knife blade. That caused several lacerations to his hands.
There was then a struggle between you and Taesoo Kim over the knife. Taesoo Kim managed to disarm you of the knife, and handed it to another occupant of the house who had come out. During the struggle over the knife, you both suffered severe lacerations to your hands.
You managed to free yourself from Taesoo Kim and approached Ms Kim. You knocked her to the ground. You straddled Ms Kim while she was on the ground, and attempted to strangle her with both hands, applying significant pressure with your thumbs to her trachea, which prevented her from being able to breathe.
Taesoo Kim and the other occupant from the house came to Ms Kim's assistance and knocked you off her.
Ms Kim and the other person then fled up Laurie Street, seeking help. You chased after them. Taesoo Kim followed you shortly after, again to give assistance to Ms Kim.
You and Taesoo Kim came together again on Belmont Avenue, where you knocked him to the ground. You continued to hit him while he was on the ground. You then forced your fingers inside his neck wound, attempting to open the wound further, causing extreme pain and distress to him.
A number of passers-by attempted to get you off Taesoo Kim, with one of them eventually managing to pull you off, about 30 seconds after you began to rip at his neck wound.
Police attended shortly after, and placed you under arrest.
As a result of your attack on Ms Kim, she suffered lacerations to her third and fourth fingers, which required sutures; an abrasion to her elbow; and bruising to her throat. It is not surprising that the injuries have been described as being of such a nature as to interfere with her health and comfort. However, the seriousness of this offence lies in your intention to maim, disfigure or disable Ms Kim, which you have admitted, and the pain and terror you caused her, especially when you were strangling her.
Taesoo Kim suffered lacerations on both sides of his neck. The most significant injury was a large laceration on the right side of his neck, below his cheek, which severed an artery and damaged his right facial nerve. He needed surgery to control his bleeding and repair his facial nerve, and sutures to his face and neck to close the wounds. He also needed sutures to his hands and surgery to repair his flexor tendon. His injuries were of such a nature as to endanger, or be likely to endanger, his life, or at least be likely to cause permanent injury to his health. Without medical intervention, his life would have been endangered as a result of the damage to his facial artery, which caused significant bleeding. It is also likely that he would have been left with permanent injuries to his face, because of the damage to his facial nerve, and to his hands, because his ability to move his hands and grasp things would have been affected by the damage to the flexor tendons.
You were arrested on 30 October 2015, and you have been in custody since then.
You took part in a video interview with the police through an interpreter on that day. During that interview, you admitted that you knew where Ms Kim was living because of the address on the police order. You claimed you went to the Belmont Forum shops to buy something to eat. You seemed to suggest that you did not know why you had bought the knife and that you regretted buying it straight away. The CCTV footage from Coles does not show you with any food. As I said earlier, given that you were in the store for a very short time, I am satisfied that the reason you went to the shop was to buy the knife. I reject your claim in the interview that you regretted buying the knife. As I said before, you had the knife in your bag, ready to use, when you approached Ms Kim and Taesoo Kim. That means that you had removed it from its packaging, probably while you were waiting near the house.
I also reject your claim to the author of the pre-sentence report (PSR) prepared for these proceedings that your original intention was to use the knife to slash the tyres of the vehicle at the front of the house. You did not say that to the police, it has not been persisted with as an explanation in these proceedings, and it is not a credible explanation.
Having regard to all the circumstances, I am satisfied that the very purpose for which you bought the knife was to use it as a weapon.
In the police interview, you also claimed that Taesoo Kim attacked you first, and that you were defending yourself. You also claimed that, when later you were seen to grab at Taesoo Kim's neck wound, you were simply trying to pull him up. Those claims were false and they have not been persisted with in these proceedings. As I said earlier, the statement of facts read by the prosecutor was not disputed on your behalf.
The fact is that you were the aggressor. You attacked Taesoo Kim without warning, and you tried to cause him as much harm as you could.
During the interview, you said that the document found in your possession set out your relationship with your girlfriend. Although some of the interpreting during the interview is not clear, what I understand from it is that, when you wrote the document, you were in a miserable state of mind and you intended to kill yourself and both Ms Kim and her boyfriend. I also understand from the interview that you had that intention until you arrived in Australia, but that you then changed your mind.
Although you were originally charged with attempted murder, that is not the charge with which the State has proceeded in relation to either victim. Whatever your intention may have been before you arrived in Australia, you are to be sentenced on the basis that, when you attacked Taesoo Kim and Ms Kim, your intention was not to kill them, but to maim, disfigure or disable each of them, or to cause them a life threatening injury or permanent injury to their health. By your pleas of guilty, you have admitted that intention.
The State submits that I should find you formed that intention in relation to Ms Kim when you wrote the note in Korea, and that your attack on her was premeditated and planned. On the other hand, it accepts that you formed the same intention in relation to Taesoo Kim only when you saw him with Ms Kim and saw that he was trying to protect Ms Kim and they were trying to contact the police, and not before. In relation to Taesoo Kim, that was the factual basis on which you agreed to plead guilty, and it is the basis on which I will sentence you.
I can understand the distinction that has been drawn between the two victims because, on my reading of the translated contents of your note (which can be described accurately as a suicide note), you were indicating an intention to kill Ms Kim and yourself, not Ms Kim's boyfriend. Also, it is not clear whether you knew Taesoo Kim would be with Ms Kim when you flew to Australia. However, your admissions to the police through the interpreter suggest that, before you arrived in Australia, you had also thought of harming Taesoo Kim. In any case, given that your intention was to confront Ms Kim and to use violence against her, you must have had in mind that if Taesoo Kim was with her, you would have a violent confrontation with him, too.
It may be that you decided to make one last desperate attempt to get Ms Kim back. That seems to be what you were doing when you first approached Ms Kim and Taesoo Kim in the car. You said you wanted to talk, and you did talk for a short time, as I outlined earlier. However, I am satisfied from the fact that you bought the knife immediately after you arrived in Australia and had it ready to use, and from your actions in attacking Taesoo Kim and Ms Kim, that your use of violence was premeditated and planned. I am satisfied it was your intention to use the knife on them if you did not get your own way. In Ms Kim's case, I am satisfied you had formed the intention to do her serious harm before you came to Australia, at least if she refused to return to you.
What is clear from your actions in attacking Taesoo Kim and Ms Kim is that, at that time, you intended to do serious harm to both of them [3] ‑ [43].
The appellant's personal circumstances
The sentencing judge recounted the appellant's personal circumstances as follows:
You are 27 years old. Since Ms Kim left you, you have been single.
You have no prior convictions recorded in Australia, and you have said that you do not have a criminal record in Korea, which I accept.
You were born in South Korea. Upon finishing your schooling, you completed mandatory military service for two years. You then met Ms Kim online and commenced a de facto relationship with her.
You told the author of the PSR that your career goal was to join the Korean Police, but that you decided to travel with Ms Kim before commencing full-time training and employment.
In October 2014, you travelled to Australia on a working holiday visa with Ms Kim. I accept that you worked diligently during your time in Australia, starting with work on farms. It is obvious that you saw a future together with Ms Kim and hoped that both of you could make enough money in Australia to help with your financial security once you returned to Korea and pursued further training and education.
You moved to Sydney in August 2015. Ms Kim's relationship with Taesoo Kim, who was living in the same accommodation, developed when you were working late nights. You found out there was something going on from messages between them on the mobile telephone you shared with Ms Kim. Ms Kim had already indicated to you that she wanted to end the relationship, but your discovery that she may be having a relationship with Taesoo Kim led to the conflict I spoke of earlier. You became violent towards Ms Kim and you tried to confront Taesoo Kim, threatening to kill him. In your lengthy suicide note, you admit having slapped Ms Kim, although you seem to suggest it was on an occasion when she was very drunk.
In any event, Taesoo Kim left the accommodation the next day. Ms Kim left you shortly after. You told the author of the PSR that her departure was sudden and unexpected, and that she sent you a text message to the effect that she was sorry for her contact with Taesoo Kim. However, in the lengthy note you wrote in Korea, you said she told you she did not want to be with you. That is what she says in her statement, too. In any case, given your behaviour towards her and towards Taesoo Kim, it is difficult to see how the fact that she left you could have been unexpected. You said that you looked for Ms Kim, but could not find her, so you returned to Korea.
You told the author of the PSR that you subsequently flew to Perth to ensure Ms Kim was safe, but it is obvious that your reason for coming to Perth was to coerce Ms Kim to come back to you. In the long note you wrote in Korea, you admitted that you had done everything to try to get her back, including coercion and making threats.
It was submitted on your behalf, based on what you have said about Korean culture, that the fact Ms Kim left you for another man meant that you lost respect in other people's eyes. Your love for Ms Kim was described as morbid. I think that is probably an apt description. It was also said that you regarded Taesoo Kim as being an inferior person to you, so it would seem you felt the loss of face was even greater.
It was submitted that your relationship problems may have been due to an inability to properly express your feelings, which, it was said, is a characteristic of people in the part of South Korea from which you come. It was also submitted that your persistence in trying to revive your relationship with Ms Kim was due to a lack of maturity. There is no evidence to support these submissions. If, as counsel informed me, the cultural background has been explained, at least in part, by you, it is difficult to know what weight to place on the information. What is apparent is that you had no difficulty expressing yourself in the long note you wrote. At 27 years of age, one would ordinarily expect a sufficient degree of maturity to realise when a relationship is over. I take into account that you had limited experience in such matters, but the note found in your possession shows that when you returned to Australia on 29 October 2015, you did not have hope of reviving your relationship.
It is understandable that you felt betrayed by Ms Kim after the plans you had made together and given the feelings you had for her. But it is also apparent, even from your own account of the relationship in the note, that there had been problems in your relationship earlier, and she had talked about separating even before meeting Taesoo Kim. While I do not doubt that you felt deeply hurt, it does not diminish the wrongfulness and seriousness of your behaviour in committing the offences.
As was noted by McLure P in Naumoski v The State of Western Australia ([2013] WASCA 215 [43] (McLure P)):
'On some occasions, domestic violence is connected with conduct in, or concerning, the relationship that understandably generates high emotion, volatility and associated loss of control. However, prevalence being an issue, that is not to be taken as mitigatory.'
Your counsel submitted that you are remorseful. The PSR casts doubt on that. First, you tried to suggest that Taesoo Kim was the aggressor and that you had acted in self-defence. In other words, you were blaming the victim for your offence. Secondly, the author of the report said that you failed to demonstrate victim empathy, as you did not express any thoughts or feelings about the impact of your actions on the two victims, even when she prompted you about those matters through the interpreter. While I appreciate the need to make allowance for linguistic and cultural differences that may have affected the impression you made on the writer of the report, I am prepared to rely on her opinion because she specifically gave you the opportunity to show that you were concerned about the victims, and you did not. You showed no empathy for the woman you professed to love, nor for the man who put his life on the line to save her from you.
Your lack of empathy is of concern because, as the author of the PSR says, it increases the risk to the safety of your victims, and it may make it difficult for you to gain insight into your offending through therapy in order to reform your character. She is of the opinion that, in order to reduce your risk of re-offending in a violent manner, you must address in therapy the issues of domestic violence and the impact of your behaviour on your victims.
Apart from your lack of empathy, I also accept the State's submission that the things you told your lawyer, which were set out in written submissions, tend to show that you have not truly demonstrated remorse. In the very same paragraph in which it is suggested you are 'really remorseful', your behaviour is attributed to not being in the right frame of mind because of Ms Kim's infidelity and her refusal to return your love. It is difficult to regard that as anything other than blaming Ms Kim for your actions. Also in that paragraph, the real nature of your remorse appears to be in relation to the impact your offences have had on you, including the black mark it will place on your future career prospects. It is not remorse for what you did to your victims and the community. I do not accept that you have demonstrated true remorse for your offences. Again, that does not bode well for your prospects of rehabilitation.
However, I accept that you are someone who has potential for better things and to live a law-abiding life. You have previously demonstrated a capacity for hard work and making responsible plans. But if you are to realise your potential for good, you must learn to deal with your emotions and find ways to cope with personal difficulties without resorting to harassment and violence when you feel hurt by what others have done. You must learn to respect the rights of others. The author of the PSR has expressed doubt about your ability to benefit from therapy while in prison in Australia, because of the language problem. However, your counsel said that you have been learning English while on remand. It would be an important step in your rehabilitation to take part in programmes or counselling within the prison, if possible, to assist you to deal with the issues I have mentioned. However, you must first fully accept responsibility for your actions, not just legally, as you have done by your pleas, but morally as well.
Your counsel has informed me that your immediate family in South Korea consists of your parents and your younger brother. Your parents have a low income and there was an expectation that you and your brother would support them. Your brother has a serious illness. That has added to your family's financial difficulties, presumably because of his need for treatment, but also because his ability to assist your family financially has reduced.
The fact that you were charged with these offences and remanded in custody has brought shame and stress to your family. Nevertheless, it appears you have their support. While your parents have not been able to afford to travel to Australia, your brother came to Perth for the sentencing hearing, despite his illness. However, long-term, you will have no family or friends who can provide you with support in Australia. This, together with knowing that your family may be suffering hardship in South Korea, will make serving a sentence of imprisonment in Australia harder for you. However, the courts have said that a person who comes into this country specifically and deliberately to commit a serious crime has no justification to complain about the hardship of being isolated without support in a foreign country with a foreign language when he is caught and eventually imprisoned. I am satisfied that you did come to Australia to commit a serious crime, at least against Ms Kim. Therefore, I can give little weight to those matters [45] ‑ [62]. (footnotes omitted)
The sentencing judge's findings in respect of aggravating factors
The sentencing judge found that there were a number of aggravating factors, as follows:
The first is that you committed the offences in the context of the breakdown of a domestic relationship, in circumstances in which it had been made clear to you that Ms Kim did not want to be with you. Domestic violence is a matter of great concern within our community. It has, on many occasions, resulted in tragic consequences. The courts must try to provide some protection for vulnerable people, usually women, in Ms Kim's position, by imposing sentences that will deter others who might be inclined to use violence to resolve domestic conflicts or to prevent their ex-partner from being with anyone else.
Secondly, the use of violence was premeditated and planned, as I explained earlier. In relation to Ms Kim, you had formed an intention to do her serious harm before you travelled to Australia on 29 October 2015.
Thirdly, you used a weapon that was capable of causing devastating injuries. You bought the knife for that purpose immediately before going to the house.
Fourthly, your attack was persistent. You chased Ms Kim up the street and then continued your attack on Mr Kim.
Fifthly, having inflicted a very serious injury to Taesoo Kim, the brutal act of trying to cause further injury by tearing at the wound is a significant aggravating factor.
Next, although you come to be sentenced separately for an offence against each of the victims, the fact that there were two victims makes the offending overall more serious. Each of the victims was trying to help the other, once you commenced the attack.
The seventh aggravating factor is that the offence against Ms Kim occurred in breach of a police order. In my view, that aggravates both offences, because your initial attack against Taesoo Kim came while he and Ms Kim were trying to call the police to report you for the breach.
Finally, in my opinion, it is a further aggravating factor that the offences were committed in public and had the potential to cause harm ‑ if not physical, then at least mentally and emotionally - to other people who had nothing to do with the dispute that you were involved in. In fact, other members of the community were brought into the altercation when they tried to help Taesoo Kim. The use of a weapon in public makes it even worse, although by the time that you were pulled off Mr Kim up the street, he had already disarmed you back at the house [72] ‑ [79].
The sentencing judge's findings in respect of mitigating factors
The sentencing judge found that there were a few mitigating factors, as follows:
The most significant mitigating factor is the fact that you have pleaded guilty. Under s 9AA of the Sentencing Act 1995 (WA), I am able to reduce your sentence by up to 25% for your pleas of guilty. That reduction is from the sentence that would otherwise be appropriate having regard to the seriousness of your offending, before taking into account mitigating factors. The maximum of 25% can only be allowed when a plea has been entered at the first reasonable opportunity.
In your case, the plea was entered on 8 February 2017, more than 15 months after you were first charged. However, you were originally charged with attempted murder in respect of both victims, and it was not until 8 November 2016 that the State filed an indictment charging you with the offences to which you have now pleaded guilty. I accept that there are reasons why it would have been difficult for an offer to be made to the State for you to plead guilty to those offences before the State decided to indict you on them. The main reason is the difficulty your legal representatives had in explaining the evidence and the law because of your limited understanding of English and, perhaps, cultural factors. I accept that the offences involve some legal complexity. Then, once you had an understanding of the charges, there was a dispute about the facts.
I was informed that after a voluntary case conference, once the State indicated that it would not allege that your intention to cause serious harm to Taesoo Kim was formed in Korea, but rather that it was formed when you saw him with Ms Kim, you quite quickly indicated you would plead guilty to both charges. However, your counsel informed me that, after the State had indicated it would be charging you with the offences under s 294 of the Criminal Code (WA), it was decided to let the matter take its course until the conference. It would appear there was no reason why an offer could not have been made on your behalf at an earlier stage than the conference.
Having regard to the history I have outlined, the State conceded that I can regard your pleas as having been entered at the first reasonable opportunity. However, as I have said, it appears that an offer could have been made at an earlier stage. In those circumstances, I will regard the pleas as having been entered at an early stage, rather than at the first reasonable opportunity.
In assessing the reduction I should make, I am also entitled to take into account the strength of the prosecution case against you. On the basis of the statements and photographs on the prosecution brief and the note found in your possession, I consider that the case against you was strong. Apart from the two victims, there were a number of independent witnesses who witnessed your actions, and the conclusions as to your intention were, in my view, inevitable.
There is, therefore, an element of recognising the inevitable in your pleas of guilty. Nevertheless, there have been considerable savings to the State and the criminal justice system as a result of your pleas, and, importantly, the victims of your offences have been spared the stress of having to give evidence and relive the events.
In all the circumstances, I consider that it is appropriate to reduce the sentence that would otherwise have been imposed, before taking into account mitigating factors, by 20%.
As I said earlier, there is little else to mitigate your offending.
Your prior good character carries little weight, given the very grave nature of your offences and the fact that you have not demonstrated genuine remorse.
Earlier, I dealt with the hardship to your family and to you of having to serve a lengthy term of imprisonment in Australia. Again, those matters can carry little weight.
In his plea in mitigation, your counsel referred to the fact that you, too, had suffered injuries during the violence. The only significant injuries were to your hands from the knife, and you brought those upon yourself. You did not suffer any other significant injuries. As the prosecutor submitted correctly, this was not a consensual fight. There is no mitigation to be found in your injuries [81] ‑ [91].
The merits of the ground of appeal: manifest excess
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well-established by the case law.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[1]
[1] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
The maximum penalty for each of the offences committed by the appellant, contrary to s 294(1) of the Code, is 20 years' imprisonment.
The seriousness of the facts and circumstances of offending contrary to s 294 can be highly variable. See Black v The State of Western Australia [No 2].[2]
[2] Black v The State of Western Australia [No 2] [2010] WASCA 145 [28] (McLure P; Buss JA and Mazza J agreeing).
In The State of Western Australia v Jeffries,[3] Steytler P (McLure and Miller JJA agreeing) referred to Stephens v The State of Western Australia[4] and the cases reviewed in Stephens. His Honour said:
Those were cases of causing grievously bodily harm with intent contrary to s 294 of [the Code] … They reveal that in such cases sentences of between 7 and 12 years' imprisonment, prior to the operation of the transitional provisions, are not uncommon [12].
[3] The State of Western Australia v Jeffries [2007] WASCA 255.
[4] Stephens v The State of Western Australia [2005] WASCA 98.
We have examined numerous prior cases of offending contrary to s 294. See Minhaj v The Queen;[5] McCormack v The Queen;[6] McMaster v The Queen;[7] Kennedy v The State of Western Australia;[8] Eriha v The State of Western Australia;[9] Rolfe v The State of Western Australia;[10] Petrelis v The State of Western Australia;[11] Abfahr v The State of Western Australia;[12] Zhang v The State of Western Australia;[13] Wells v The State of Western Australia;[14] The State of Western Australia v Naumoski;[15] The State of Western Australia v Legge;[16] The State of Western Australia v Khasay;[17] Oxenham v The State of Western Australia;[18] McKenzie v The State of Western Australia;[19] and Merlo v The State of Western Australia.[20] It is unnecessary to reproduce the facts and circumstances of or the sentencing outcomes in the prior cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
[5] Minhaj v The Queen [2000] WASCA 52.
[6] McCormack v The Queen [2000] WASCA 139.
[7] McMaster v The Queen [2004] WASCA 52; (2004) 144 A Crim R 428.
[8] Kennedy v The State of Western Australia [2008] WASCA 185.
[9] Eriha v The State of Western Australia [2011] WASCA 167.
[10] Rolfe v The State of Western Australia [2012] WASCA 169.
[11] Petrelis v The State of Western Australia [2012] WASCA 235.
[12] Abfahr v The State of Western Australia [2013] WASCA 87.
[13] Zhang v The State of Western Australia [2013] WASCA 121.
[14] Wells v The State of Western Australia [2013] WASCA 124.
[15] The State of Western Australia v Naumoski [2013] WASCA 215; (2013) 234 A Crim R 566.
[16] The State of Western Australia v Legge [2014] WASCA 47.
[17] The State of Western Australia v Khasay [2014] WASCA 58.
[18] Oxenham v The State of Western Australia [2015] WASCA 30.
[19] McKenzie v The State of Western Australia [2015] WASCA 163.
[20] Merlo v The State of Western Australia [2018] WASCA 71.
In the present case, the appellant's offending was very serious. In particular:
(a)The offences were committed in the context of a failed domestic relationship.
(b)The offending against Ms Kim involved extensive planning and premeditation including the premeditated use of a weapon. The appellant's intent to cause her serious harm was formulated well in advance of its execution.
(c)The offending against Taesoo Kim was persistent and sustained. The injury to the right side of Taesoo Kim's neck could have resulted in his death if he had not received medical treatment. The appellant's actions in endeavouring to pull open the wound were horrific.
(d)The offending was terrifying for the victims.
(e)The appellant's attack upon the victims was unprovoked.
(f)The offending was committed in public.
(g)The offending against Ms Kim occurred in breach of a police order.
The principal mitigating factor was the appellant's pleas of guilty. The sentencing judge allowed a discount of 20% in respect of the 'head sentences' he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act 1995 (WA).
In our opinion, it is not reasonably arguable that the sentence of 5 years 6 months' imprisonment on count 1 or the sentence of 7 years 6 months' imprisonment on count 2 was manifestly excessive. In other words, when each sentence is viewed from the perspective of the maximum penalty (20 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing considerations, including:
(a)the seriousness of the offence;
(b)the vulnerability of the victim;
(c)the general pattern of sentencing for offences of the kind in question;
(d)the importance of personal and general deterrence as sentencing factors; and
(e)the aggravating and mitigating factors referred to by his Honour,
it is apparent that the length of each term of imprisonment was not unreasonable or plainly unjust. Each sentence was commensurate with the seriousness of the offence.
The complaint in the ground of appeal of manifest excess is without merit.
The merits of the ground of appeal: the first limb of the totality principle
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[21] Also, the severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia.[22]
[21] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[22] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
We are satisfied that it was necessary, in order properly to mark the seriousness of the appellant's overall offending, for the individual sentences imposed on each of counts 1 and 2 to be accumulated in the manner and to the extent ordered by the sentencing judge.
In our opinion, after taking into account:
(a)the maximum penalty for counts 1 and 2;
(b)the very serious nature of the offending viewed as a whole;
(c)the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending;
(d)the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind;
(e)the appellant's personal circumstances;
(f)the aggravating and mitigating factors referred to by his Honour; and
(g)all other relevant sentencing considerations,
the proper conclusion is that the total effective sentence of 9 years 6 months' imprisonment was appropriate.
The total effective sentence bears a proper relationship to the overall criminality involved in both of the offences, viewed in their entirety, and after having regard to all relevant facts and circumstances, including those referrable to the appellant personally, and the total effective sentences imposed in comparable cases.
The complaint in the ground of appeal of an infringement of the first limb of the totality principle is without merit.
Conclusion
The ground of appeal does not have a reasonable prospect of success. The application for an extension of time within which to appeal should be dismissed because the appeal is unmeritorious. Leave to appeal should be refused. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS10 AUGUST 2018
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