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…

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 [2003] NSWCCA 167
Case: [2003] NSWCCA 167
Decision Date: 24 June 2003

CaseChat Overview and Summary

In the case of R v Kim, the defendant was convicted of breaking and entering a dwelling house with the intent to commit a serious indictable offence, namely armed robbery. The matter was heard in the Supreme Court of New South Wales. The defendant's appeal against sentence was considered by the Court of Criminal Appeal, which had to determine whether the trial judge had erred in his assessment of the circumstances and in the sentence imposed.

The appeal centred on the appropriate weight to be given to the factors mitigating the defendant's culpability, particularly the defendant's personal circumstances and the fact that this was his first serious offence. The Court of Criminal Appeal had to decide whether the trial judge had adequately balanced these factors against the gravity of the offence and the need for deterrence and denunciation. Additionally, the court examined whether the sentence imposed was manifestly excessive or inadequate in all the circumstances.

In delivering the judgment, the Court of Criminal Appeal held that the trial judge had appropriately considered the mitigating factors but had not sufficiently emphasised the seriousness of the offence and the need for general deterrence. The appellate court found that the sentence was manifestly inadequate and substituted a sentence of imprisonment with a non-parole period. The Court of Criminal Appeal emphasised the importance of ensuring that sentences for serious indictable offences reflect the gravity of such crimes and the necessity of upholding public confidence in the criminal justice system.

The Court of Criminal Appeal ordered that the defendant be re-sentenced to imprisonment with a non-parole period, reflecting the seriousness of the offence and the need for general deterrence. The specifics of the new sentence were left to the discretion of the trial judge, subject to the appellate court's guidelines and considerations.

Orders