R v Kim - [2003] NSWCCA 167

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v KIM [2003] NSWCCA 167

FILE NUMBER(S):
60075/03

HEARING DATE(S): 24/06/03

JUDGMENT DATE: 24/06/2003

PARTIES:
Sidney Son KIM (Applicant)
REGINA (Respondent)

JUDGMENT OF: Meagher JA Dowd J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0500

LOWER COURT JUDICIAL OFFICER: Woods DCJ QC

COUNSEL:
Crown: G Rowling
Applicant: M Higgins

SOLICITORS:
Crown: SE O'Connor
Applicant: P Wiggins

CATCHWORDS:
Criminal Law - sentencing - breaking, entering and committing a serious indictable offence - armed robbery

LEGISLATION CITED:
Crimes Act, 97, 112

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60075/03
MEAGHER JA
DOWD J
BARR J
Tuesday, 24 June 2003

REGINA v Sidney Son KIM

Judgment

MEAGHER JA: I ask Barr J to deliver the first judgment.
BARR J: The applicant Sidney Son Kim seeks leave to appeal against sentences imposed in the District Court. He pleaded guilty to the following charges:
1. On 1 October 2001 at Campsie he broke and entered the dwelling house of Li Ping Liu, Ying Li, Yun Zhou and Yu Juan Liang and committed a serious indictable offence therein, namely assault occasioning actual bodily harm upon Yu Juan Liang and at the time of breaking and entering was armed with a dangerous weapon, namely a long-barrelled firearm;
2. At the same time and place, when armed with a dangerous weapon, namely a long-barrelled firearm, he robbed Yu Juan Liang of property, namely a mobile telephone and a quantity of jewellery.
The applicant requested the sentencing judge to take into account the following offences, namely -
1. At the same time and place, when armed with a dangerous weapon, namely a long-barrelled firearm, he robbed Yun Zhou of certain property; and
2. At the same time and place and in the same circumstances he robbed Li Ping Liu of certain property.
On 30 August 2002 Woods QC DCJ sentenced the applicant to imprisonment for twelve years for each offence, both sentences to run concurrently, and fixed a non-parole period of eight years. His Honour took into account one of the scheduled offences in imposing each sentence.
About a month before 1 October 2001 the applicant was invited to take part in the breaking and entering of premises at Campsie. He knew that he would be carrying out the operation in the company of another young man and that they would be armed with a firearm and a knife. He did not know any of the persons to be held up and robbed but he knew that the person who wanted the job done had a grudge against a woman, one of the intended victims. He knew that she was to be assaulted. He accepted the offer immediately upon a promise of payment of $1,000.
The premises concerned was a rooming house where several families or individuals lived. The applicant and his co-offender went there in the daylight to have a look at the premises. They decided it was then too busy and that they had better do their job at night. They selected dark clothing to wear, including beanies by which they disguised their faces. They equipped themselves with a .22 rifle and a long kitchen or butcher’s knife. The applicant at all times held the rifle. It contained no firing mechanism.
The applicant and his companion entered the house at 8:20 pm and confronted four adults and the five year old daughter of one of them. The applicant was armed with the rifle and his companion with the knife. They ordered the occupants not to move and told them that they were the police. They said that they were looking for a woman who lived at the address. They did not name her but described a vehicle that they said she drove. Those present denied knowing such a woman, though it appears that the woman the offenders were inquiring about may previously have lived at the house. They ordered the occupants to surrender their mobile telephones and wallets. That was done. They forced one of the occupants, Mr Zhou, to write down the personal identification number of his credit card. The applicant stood guard over those present while his accomplice moved throughout the rest of the house, checking each room. When that man returned he picked out Miss Liang, perhaps believing her to be the woman about whom they had been told. He took her into another room while the applicant stood guard over the other occupants. He pushed her onto a bed, ordered her to remove her clothing and, when she refused, slashed her outer and undergarments. He cut her chest with the knife. He tied her wrists with cable ties. He stole her necklace and bracelet.
Between them the applicant and his companion stole the jewellery I have mentioned, mobile telephones, credit cards, money, a DVD player and a ring.
The applicant was first linked to the attacks when he used one of the stolen mobile telephones. Police arrested him, took him to the police station and interviewed him. He told the police the name and mobile telephone number of his co-offender and of the commissioner of the offence.
The applicant was nineteen years and three months of age at the time of the offences. He was born in Australia. His upbringing was unremarkable and he was in good health. Before leaving school in October 2000 he committed an offence on another student. He disingenuously described the offence to a psychiatrist, Dr Benjamin, who provided a report for the sentencing judge on behalf of the defence, as an assault. In fact it was demanding property with menaces with intent to steal. A magistrate took a very serious view of this, the appellant’s first offence, and ordered him to perform two hundred hours’ community service. The appellant was subject to that sentence when he committed the offences the subject of this appeal.
The first ground of appeal complains that his Honour failed to take into account the applicant’s co-operation and assistance to the police. Notwithstanding that he named his co-offender and principal, it is submitted, the sentencing judge failed to give weight to those matters.
It is not surprising that his Honour did not mention the assistance pointed to. Although the solicitor who appeared for the Crown on sentence appeared to agree that the co-offender and the principal had been correctly named, there was no suggestion that anyone had been charged in relation to these matters. All his Honour was told was that the co-offender had been charged over an unrelated matter and there was no suggestion that the applicant was in any way responsible for telling the police about that. Furthermore, the statement of facts put before the sentencing judge and not challenged by the defence stated that enquiries were continuing into the identity of the accomplice and the principal.
His Honour gave judgment ex tempore. He acknowledged the plea of guilty, which he took to be evidence of remorse, and made express allowance for it. It must have seemed probable to his Honour that the assistance the applicant was giving to the police was of limited value and was properly to be seen as no more than a working-out of the confession of guilt. In my opinion that was a legitimate way of making a modest allowance to which the applicant was entitled by reason of the information given.
It is submitted that his Honour erred in making no finding as to the extent of the applicant’s assistance, but I would reject that submission. It would not have been possible on the material before his Honour to make any assessment beyond what was set out in the statement of facts.
The next ground of appeal is that the length of the sentences itself implies error. His Honour said that but for the plea of guilty he would have sentenced the applicant to fifteen years’ imprisonment. The submission is that that starting point was too high. Reference has been made to Judicial Commission statistics for offences pursuant to ss 112 and 97 Crimes Act 1900, the two sections under which these charges were laid. Each offence attracted a maximum sentence of twenty-five years’ imprisonment. Reference has also been made to individual cases.
The Court has pointed on a number of occasions to the difficulty of gauging the appropriateness or inappropriateness of one sentence by reference to the facts and sentence of another case. There is a well-known difficulty, too, on literal reliance on sentence statistics, especially in appeals against sentences for multiple offences and where other criminality has been taken into account. I do not think it necessary to repeat the considerable detail of the very helpful submissions made in this regard but merely observe that in none of the cases cited in particular or, so far as I can tell in the cases included in the statistical material, have the relevant sentences been imposed for two offences committed during the period of a sentence for demanding property with menaces
It seems to me that these offences were very serious ones of their kind. First, the applicant was a man who had no interest in the grudge between the principal and the intended victim but hired out his services for money. Offences accompanied by such a degree of callousness are often reckoned to fall into the worst category of cases or a category close to it. The applicant had experience in standing over people. The offences had seriously aggravating features. They were carried out in company and with the use of weapons. Actual injury was inflicted. The victim impact statement of the unfortunate woman who was wounded showed that ever since the attack she had had difficulty sleeping, suffered irregular periods, had borne for six months the marks left on her wrists by the cable ties with which she had been trussed up and underwent depression and frequent panic attacks.
The offences were committed at night and involved the invasion of a private home when it was intended the occupants should be present. They were well planned, with the selection of disguise and the wearing of rubber gloves which would make the offenders difficult to identify.
In my view the sentencing judge was well justified in describing the circumstances of the offences as a matrix of horror calling for severe condemnation. In my view the selection of a starting point of fifteen years, given the leniency involved in making the sentences concurrent, was within the range of his Honour’s proper sentencing discretion.
I would grant leave to appeal but would dismiss the appeal.
MEAGHER JA: I agree.
DOWD J: I also agree.
MEAGHER JA: The orders of the Court will therefore be the orders proposed by Barr J.

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LAST UPDATED: 02/07/2003