R v Khim

Case [2002] SASC 343

R v KHIM
[2002] SASC 343

Court of Criminal Appeal:  Perry, Williams and Gray JJ

  1. PERRY J.               The appellant appeals by leave against the sentence imposed upon him in the District Court following his plea of guilty to five separate counts of armed robbery. The learned sentencing judge imposed a single sentence of 12 years imprisonment against which he fixed a non-parole period of 10 years. In doing so, the judge gave credit for about eight months which the appellant had already served in custody while on remand with respect to the offences in question.

  2. The appellant claims that both the head sentence and the non-parole period are manifestly excessive.

  3. All five offences were committed within a short period of time, namely, between 7 August 2000 and 4 September 2000. On each occasion the appellant was armed with a samurai sword.

  4. On three occasions the appellant robbed service stations and, on the remaining two, pizza shops. On one occasion the amount taken was about $1000. The amount involved on the four other counts varied between $300 and $500. While no-one was physically injured, a number of people in the premises at which the offences were committed were put in fear.

  5. The appellant was 19 years old at the time of the offences. At the time he was sentenced, that is on 26 March 2002, he was 21 years of age.

  6. The appellant had an unstable early childhood. He migrated with his parents from Cambodia when he was aged about eight. Before he left Cambodia he witnessed a number of traumatic incidents, including the return of his father to the family home after the latter had been shot in the leg.

  7. The appellant’s parents separated after they had been in Australia for about a year, a circumstance which had a destabilising influence on the appellant. His schooling deteriorated and he began to lead an aimless life.

  8. At the age of 18 he began taking heroin and quickly developed an addiction. This brought him into the criminal justice system. In 1999 he was sentenced in the District Court on charges of possessing heroin for sale upon which he was sentenced to two years imprisonment with a non-parole period of seven months dating from May 1999.

  9. In September 2000 he was taken into custody pursuant to a Parole Board warrant for breach of a condition of parole following which he served the unexpired balance of the sentence. That sentence was completed on 27 June 2001 after which he remained in custody by reference to the offences now in question.

  10. The learned sentencing judge had the benefit of a report furnished by Mr Richard Balfour, psychologist. He describes efforts which the appellant made from time to time to shake free of his drug addiction. At one stage he went on to the methadone programme but this was not successful.

  11. Mr Balfour describes the appellant as having an “introverted personality”. He said that the appellant was “exposed to some traumatic incidents in Cambodia but does…

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AGLC
R v Khim [2002] SASC 343
Case
[2002] SASC 343
Decision Date

CaseChat Overview and Summary

The appellant, Sokhoeun Khim, was convicted and sentenced for five counts of armed robbery and pleaded guilty to the charges. The appellant appealed against the sentence, arguing that the 12-year imprisonment term and the 10-year non-parole period were excessive and that insufficient credit had been given for his guilty pleas. The court considered the nature of the crimes, the appellant's criminal history, his age, and the totality principle in sentencing. The appellant's crimes were part of a course of conduct over 29 days, with a consistent modus operandi involving the use of a samurai sword to threaten service station and pizza shop employees. The court had to determine whether the sentence was appropriate given the circumstances.

The legal issues that the court had to decide were whether the sentence was manifestly excessive and whether the appellant's guilty pleas had been adequately considered in the sentencing. The appellant argued that the sentence did not reflect the totality principle in sentencing, which requires that the overall seriousness of the crimes be considered rather than cumulative penalties. The court had to weigh the appellant's criminal history, the nature of the crimes, and the impact on the victims against the need for deterrence and rehabilitation. The court also had to consider the appellant's age and the potential for rehabilitation.

The court concluded that the sentence was not manifestly excessive and that the totality principle had been appropriately considered. The court noted that the appellant's crimes were part of a course of conduct, and the impact on the victims was significant. The court also considered the appellant's criminal history and his failure to comply with parole conditions. The court determined that the 12-year imprisonment term and the 10-year non-parole period were appropriate given the seriousness of the crimes and the need for deterrence. The court rejected the appellant's argument that insufficient credit had been given for his guilty pleas, noting that a reduction had been made from the initial 15-year sentence to 12 years.

The court dismissed the appeal against sentence. The 12-year imprisonment term and the 10-year non-parole period were affirmed as appropriate given the nature of the crimes, the appellant's criminal history, and the need for deterrence and rehabilitation. The court rejected the appellant's argument that the sentence was manifestly excessive and that insufficient credit had been given for his guilty pleas. The court noted that the totality principle had been appropriately considered in sentencing, and that the appellant's age and potential for rehabilitation had also been taken into account.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence.Background The appellant Sokhoeun Khim was charged with nine counts of armed robbery and one count of assault with intent to rob. He pleaded guilty to five of those counts[6] and nolle prosequis were entered to the remainder. His counsel explained that the offences were all committed whilst the appellant was under the influence of heroin addiction in an effort to obtain money to feed that addiction.[6] The information relevantly provided: The similarity between the appellant’s modus operandi was marked. Over a period of approximately one month he entered three service stations and two pizza shops at night. On each occasion he used a samurai sword to threaten employees. Demands were made and money and cigarettes handed over. No physical injuries were caused to any of the victims however they were frightened and feared for their safety. The appellant was aged 19 at the time of the offending. His criminal antecedents dated back to 1999 and involved selling heroin, possessing heroin for sale, unlawful possession and possess a prescription drug. He received two years imprisonment with a non-parole period of 7 months and a fine for this offending. The appellant was on parole at the time of the current offending. He apparently met up with a drug using fellow releasee and started using heroin again. He then went on the methadone program but his attendance lapsed and he also failed to attend to his obligations to attend rehabilitation programs that formed part of his parole conditions. Accordingly he breached his parole when he committed the current offences in August 2000. His parole was cancelled and he was ordered to serve 9 months and 20 days imprisonment being the remainder of his sentence. The sentencing judge’s remarks included:“I have taken into account you are still a young man and all hope for the future must not be taken from you and also that you have pleaded guilty and accepted responsibility for these offences. I bear in mind also the totality principle in sentencing, that really although they are five separate offences they are part of an overall course of conduct and the seriousness of these offences must be considered distinct from cumulative penalties which would amount to what would be a crushing sentence. Bearing all these matters in mind, I would normally sentence you to a term of imprisonment of 15 years. I reduce that to 12 years because of your pleas of guilty. I set a non parole period of 10 years imprisonment.” Counsel for the appellant complained that the head sentence and the non-parole period were manifestly excessive and that an inadequate reduction had been made on account of the appellant’s pleas of guilty.Issues on Appeal The appellant’s conduct attracts the description of a multi-faceted course of conduct. All five offences were committed over a period of some 29 days. As earlier observed, his modus operandi was similar. All offences were drug related. The impact on his victims varied. The offences formed part of a course of conduct.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J WILLIAMS J (dissent) GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: PERRY J, GRAY J

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