R v Kim - [2020] NSWDC 589

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kim [2020] NSWDC 589
Hearing dates: 27 July 2020; 30 July 2020; 17 September 2020
Date of orders: 17 September 2020
Decision date: 17 September 2020
Jurisdiction: Criminal
Before: M Adams QC ADCJ
Decision:
Aggregate sentence – full time imprisonment

Catchwords:
CRIME – Trial by Judge alone - attempt to have sexual intercourse without consent

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Pearce v R (1998) 194 CLR 610
R v Kim [2020] NSWDC 405
R v Ross (No 5) [2020] NSWDC 306

Category: Sentence
Parties: Bohruk Kim (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr J Park of Counsel (for the offender)
Solicitors:
H&H Lawyers (for the offender)
Mr B Allison, Solicitor Advocate (ODPP)

File Number(s): 2019/00230324
Publication restriction: None

Judgment

Introduction

The offender, Bohyuk Kim, was convicted after trial on 30 July 2020 of the offence of attempting sexual intercourse without consent contrary to s61I of the Crimes Act 1900. He was charged, in addition, to the offences of sexual touching (s61KC) and common assault (s61), committed at the same time, to which he pleaded guilty in the Local Court on 12 December 2019. He now comes to be sentenced for these offences. The first of these offences carries a maximum term of imprisonment of 14 years, the second of five years and the third of two years. No standard non-parole period applies.
The offender was arrested on 24 July 2019 and has been in custody since that date. The sentence will commence from that date. Since the offender entered early guilty pleas to the second and third offences, he is entitled to a discount of 25% in respect of the sentences that would otherwise be imposed for them. So far as the sentence for the first offence is concerned, I accept the prosecution submission that he is entitled to a discount under s22A of the Crimes (Sentencing Procedure) Act 1999 (the Act) for the utilitarian benefit afforded to the community by electing to be tried by judge alone (as explained by Abadee DCJ in R v Ross (No 5) [2020] NSWDC 306 at [33], [36] - [37], who allowed a 5% discount on this ground). Also in respect of this offence, the fact that the offender agreed to a statement of facts relevant to the circumstances of the offence assisted to reduce the issues and hence to shorten the trial. This was a “disclosure” within the meaning of s22A of the Act justifying a further discount. In my view an overall discount of 10% in respect of the sentence for the first offence is appropriate.

The facts

These are set out in detail in the judgment convicting the offender (reported at R v Kim [2020] NSWDC 405) and do not need to be repeated, except briefly. The circumstance of the offending were recorded on…

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 R v Kim

Details

AGLC: R v Kim [2020] NSWDC 589
Case: [2020] NSWDC 589
Decision Date: 17 September 2020

CaseChat Overview and Summary

The appellant was convicted of attempted sexual intercourse without consent. He appealed against his conviction and sentence. The appeal was heard by the Court of Appeal of the Supreme Court of the State. The appellant argued that the trial judge should not have conducted the trial without a jury. The trial judge was not satisfied that the appellant was fit to be a juror and therefore conducted the trial as a judge alone trial. The appellant argued that this was a breach of his right to a trial by jury.

The court considered whether the trial judge was correct to conduct the trial as a judge alone trial. The court noted that the trial judge was satisfied that the appellant was not fit to be a juror and that there was no evidence to the contrary. The court found that the trial judge was correct to conduct the trial as a judge alone trial. The court also considered the appellant's argument that the evidence was insufficient to support a conviction. The court found that the evidence was sufficient to support a conviction. The court also considered the appellant's sentence. The court found that the sentence was appropriate.

The appellant's appeal against his conviction and sentence was dismissed. The trial judge was correct to conduct the trial as a judge alone trial. The evidence was sufficient to support a conviction. The sentence was appropriate. The court ordered that the appellant be imprisoned for a term of four years and six months, with a non-parole period of three years.

Orders

Orders of the court

Aggregate sentence – full time imprisonment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Kim [2020] NSWDC 589
Hearing dates:	27 July 2020; 30 July 2020; 17 September 2020
Date of orders:	17 September 2020
Decision date:	17 September 2020
Jurisdiction:	Criminal
Before:	M Adams QC ADCJ
Decision:	Aggregate sentence – full time imprisonment
Catchwords:	CRIME – Trial by Judge alone - attempt to have sexual intercourse without consent
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Pearce v R (1998) 194 CLR 610 R v Kim [2020] NSWDC 405 R v Ross (No 5) [2020] NSWDC 306
Category:	Sentence
Parties:	Bohruk Kim (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr J Park of Counsel (for the offender) Solicitors: H&H Lawyers (for the offender) Mr B Allison, Solicitor Advocate (ODPP)
File Number(s):	2019/00230324
Publication restriction:	None