R v Kim
[2015] ACTSC 182
•29 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kim |
Citation: | [2015] ACTSC 182 |
Hearing Date: | 26 June 2015 |
DecisionDate: | 29 June 2015 |
Before: | Burns J |
Decision: | See [15]-[17] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – sexual offences – act of indecency without consent. |
Legislation Cited: | Crimes Act 1900 (ACT) s 60 (1) |
Cases Cited: | R v Verdins (2007) 169 A Crim R 581 |
Parties: | The Queen (Crown) Sung Kun Kim (Offender) |
Representation: | Counsel Ms S Gul (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 118 of 2014 |
BURNS J:
Procedural history
Sung Kun Kim, you have pleaded guilty to 13 counts of committing an act of indecency without consent in the presence of various women. Those counts are contained on file number SCC 118 of 2014. You have also adhered to a plea of guilty entered in the Magistrates Court with respect to committing an act of indecency without consent in the presence of CS, which is found on Supreme Court file SCC 119 of 2014. With respect to each offence you used a camera, including, on occasion, a hidden camera, to film up the skirts of numerous females in public areas in Canberra. On each occasion, the female was unaware that she was being filmed.
The maximum penalty for each offence of committing an act of indecency without consent, contrary to s 60 (1) of the Crimes Act 1900 (ACT), is imprisonment for seven years. You were charged with the offence giving rise to that, which is found on SCC 119 of 2014, in the Magistrates Court on 8 February last year. You entered a plea of guilty to that charge at the second mention on 25 February last year.
Between 20 March last year and 29 May last year, you were charged with 30 offences in the Magistrates Court. Each of those offences alleged contravention of s 60 (1) of the Crimes Act 1900 (ACT). You entered pleas of not guilty in relation to each of those offences. On 29 May last year, you were committed for trial in relation to those offences, which were on court file SCC 118 of 2014. An indictment containing 27 counts was filed on 8 August last year. Following police investigations, EC was able to be identified as having been photographed by you. As a result, the Crown filed a fresh indictment containing 28 counts on 12 November last year.
The Crown case in SCC 118 of 2014 involved evidence of your tendencies with respect to having a sexual interest in up-skirt photographs and videos. On 15 December last year, I granted an application by the Crown to lead evidence of those tendencies at your trial. SCC 118 of 2014 was listed for trial commencing on 16 March this year.
On 4 March this year, following negotiations between the Crown and your legal representatives, you indicated an intention to plead guilty to the offences outlined in an indictment dated 12 March 2015.
Consideration
I note that an Agreed Statement of Facts was tendered during the course of the sentence hearing. It is unnecessary for me to set out in detail the facts relating to each of the offences. The very brief summary which I have given is, in my opinion, adequate for present purposes.
I note that you have no relevant criminal history.
A Pre Sentence Report was prepared for the purposes of the sentence hearing. I note that you are 49 years old and that you were born in Korea, but you migrated to this country when you were aged 13. You have, at the present time, limited contact with your family. Prior to being remanded in custody with respect to these charges you were living in temporary hotel accommodation, and prior to that you were homeless and living out of your car for approximately 18 months.
You have mostly been employed in the transport industry during your adult life. You were employed at the time of these offences, but that employment was terminated when you were charged and remanded in custody.
There is evidence that you have a prior history of mental health issues, but they are unconnected to this offending. Your counsel conceded that the evidence does not enliven the principles in R v Verdins (2007) 169 A Crim R 581. I note that you are currently treated with antidepressants.
The author of the Pre Sentence Report stated that you accepted responsibility for these offences and made no excuses for your offending. You demonstrated some remorse and empathy for your victims. You told the author of the Report that you were willing to engage in treatment. You were assessed as at low to moderate risk of sexual reoffending.
These offences, of course, involved a gross invasion of the privacy of your victims and were committed, I am satisfied, for your sexual gratification. There appears to me to be no real reason to differentiate between these offences for sentencing purposes.
I take into account your pleas of guilty as evidencing a degree of remorse and also having significant utilitarian value. It cannot be said that they were early pleas with respect to the charges on the Supreme Court file SCC 118 of 2014. I will, however, reduce by approximately 15 percent the sentences that I would otherwise have imposed in order to reflect your pleas of guilty with respect to those charges. I accept that your plea of guilty with respect to the one charge, which is on file SCC 119 of 2014, was an early plea, and as such I will reduce by approximately 25 per cent the sentence that would otherwise be appropriate.
As I have indicated previously, you were arrested on 7 February 2014. You made no bail application in relation to these offences and you have been in custody since that time. I have considered all possible sentencing options with respect to these offences, but, in my opinion, nothing less than immediate terms of imprisonment would be appropriate. In order to satisfy the requirements of sentencing and, in particular, the totality rule, it will be necessary that there be significant concurrency between the sentences that I will impose, although there will be some degree of accumulation. I accept that the sentences which I will impose do not always have a consistent degree of accumulation, but it was necessary to vary the periods of accumulation in order to arrive at a total sentence which was appropriate in the circumstances.
Sentence
I impose the following sentences on the charges contained within file SCC 118 of 2014:
(a)with respect to count 1, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 February 2014 and expiring on 6 December 2014;
(b)with respect to count 2, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 April 2014 and expiring on 6 February 2015;
(c)with respect to count 3, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 June 2014 and expiring on 6 April 2015;
(d)with respect to count 4, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 August 2014 and expiring on 6 June 2015;
(e)with respect to count 5, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 October 2014 and expiring on 6 August 2015;
(f)with respect to count 6, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 December 2014 and expiring on 6 October 2015;
(g)with respect to count 7, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 February 2015 and expiring on 6 December 2015.
(h)with respect to count 8, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 April 2015 and expiring on 6 February 2016;
(i)with respect to count 9, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 May 2015 and expiring on 6 March 2016;
(j)with respect to count 10, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 June 2015 and expiring on 6 April 2016.
(k)with respect to count 11, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 July 2015 and expiring on 6 May 2106;
(l)with respect to count 12, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 August 2015 and expiring on 6 June 2016;
(m)with respect to count 13, you are convicted and sentenced to 10 months' imprisonment, commencing on 7 September 2015 and expiring on 6 July 2016.
On Supreme Court file 119 of 2014, with respect to the single count on that matter, you are convicted and sentenced to nine months' imprisonment, commencing on 7 November 2015 and expiring on 6 August 2016.
The aggregate sentence which I have therefore imposed is one of two years and six months, commencing on 7 February 2014 and expiring on 6 August 2016. I set a non-parole period commencing on 7 February 2014 and expiring today, 29 June 2015.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 21 July 2015 |
0
1