R v Kim - [2000] NSWCCA 489

CITATION: R v KIM [2000] NSWCCA 489 revised - 18/12/2000

FILE NUMBER(S): CCA 60387/00

HEARING DATE(S): 24/11/2000

JUDGMENT DATE:
24 November 2000

PARTIES :

REGINA v Dae Hyun KIM

JUDGMENT OF: Barr J at 1; Carruthers AJ at 32

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/1172

LOWER COURT JUDICIAL
OFFICER : Gibson QC DCJ

COUNSEL : Crown: P Hock
Applicant: C Waterstreet

SOLICITORS: Crown: SE O'Connor
Applicant: Penhall & Co

CASES CITED:
R v Chanh, Court of Criminal Appeal, 16.12.92, unrep
R v Govinden (1999) 106 A Crim R 314
R v Luong [2000] NSWCCA 139
R v Beswajeet Singh, Court of Criminal Appeal, 16.12.94, unrep

DECISION: Leave to appeal granted; appeal dismissed; recommendation for deportation quashed

IN THE COURT OF
CRIMINAL APPEAL

60387/00

BARR J
CARRUTHERS AJ
Friday, 24 November 2000

REGINA v Dae Hyun KIM

JUDGMENT

1   BARR J: Dae Hyun Kim seeks leave to appeal against the sentences imposed in the District Court. He pleaded guilty to two counts of robbery in company and to one count of robbery in company with deprivation of liberty. Each offence carried a maximum of twenty years’ imprisonment. Gibson QC DCJ sentenced the applicant on the first two counts to fixed concurrent terms of imprisonment each of nine months and on the third count to a concurrent term of imprisonment of two years, eleven months and two weeks, comprising a minimum term of eleven months and two weeks, and an additional term of two years. In imposing sentence his Honour took into account two weeks’ pre-sentence custody. The minimum term fixed by his Honour is due to expire on 13 February 2001.
2   The applicant is apparently a Korean national and was resident in Australia under the terms of a student visa. He lived with his family, the members of which are also present in Australia on business visas, intending in due course to apply for permanent residency if not citizenship.
3   On 17 November 1998 the applicant had just about reached the end of Year 11 at high school. On 17 November 1998 he and three other people, at least two of them young persons, committed the offences to which the pleas of guilty were ultimately entered.
4   The applicant had got himself into financial difficulties. He was a music student. Some musical instruments of his had apparently been pawned and he needed to raise an amount of money which for him was substantial. He had no criminal experience and no means of raising the money lawfully or unlawfully from his own resources. He did, however, know a young person, whom I will call W. He knew that W knew how to raise money by unlawful means and he decided to seek W’s help. He attempted to telephone W one evening. The attempt was unsuccessful. He spoke to him again the following morning. A meeting was arranged, and they decided that they would seek someone from whom they could steal money.
5   As I have…

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 [2000] NSWCCA 489
Case: [2000] NSWCCA 489
Decision Date: 24 November 2000

CaseChat Overview and Summary

Dae Hyun Kim appealed against the sentences imposed in the District Court, where he had pleaded guilty to two counts of robbery in company and one count of robbery in company with deprivation of liberty. Gibson QC DCJ sentenced Kim to fixed concurrent terms of imprisonment on each count, taking into account two weeks' pre-sentence custody. Kim argued that the sentence was excessively long and that it was unfair in comparison to the sentences given to his co-offenders, who were sentenced in the Children's Court.

The Court of Criminal Appeal considered the applicant's appeal on two grounds. Firstly, the court examined whether the sentence imposed was erroneous, and secondly, whether there was a justifiable sense of grievance regarding the disparity in sentences between the applicant and his co-offenders. The court found that the sentencing judge did not err in imposing the sentence, and that the applicant's role in the crimes was substantial. The court also found that the sentencing regime in the Children's Court was different from that of adult courts, and that the sentences imposed on the co-offenders did not give rise to a legitimate sense of grievance on the part of the applicant. The court further noted that the sentencing judge had recommended the applicant's deportation without giving him proper notice and an opportunity to respond, which constituted a breach of the rules of natural justice.

The Court of Criminal Appeal granted leave to appeal, dismissed the appeal, and quashed the recommendation for deportation.

Orders