R v Kim - [2015] ACTSC 182

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…

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 [2015] ACTSC 182
Case: [2015] ACTSC 182
Decision Date: 29 June 2015

CaseChat Overview and Summary

The case of R v Kim involved a defendant charged with committing an act of indecency without consent. The matter was heard in the relevant court, where the defendant's guilt had already been determined, leaving only the matter of sentencing to be decided. The central issue before the court was the appropriate sentence to be imposed on the defendant, considering the gravity of the offence and the circumstances surrounding it.

The court considered various factors in determining the appropriate sentence. These included the nature and circumstances of the offence, the defendant's criminal history, and any mitigating or aggravating factors. The court emphasised the importance of deterrence and the need to send a strong message that such conduct would not be tolerated. Additionally, the court took into account the impact of the offence on the victim and the community at large.

In delivering its judgment, the court found that the offence was of a serious nature and warranted a significant custodial sentence. The court noted that while the defendant had no prior criminal record, the gravity of the offence required a sentence that would adequately reflect its seriousness. The court also considered the victim impact statement, which highlighted the profound impact the offence had on the victim. After carefully weighing all the factors, the court determined that an appropriate sentence would be a term of imprisonment, followed by a period of supervision and rehabilitation programs designed to address the defendant's underlying issues.

The court ordered that the defendant be sentenced to a term of imprisonment for a specified period, to be followed by a period of supervision and participation in rehabilitation programs. The court also made orders for the defendant to comply with certain conditions, including regular reporting to a probation officer and attendance at counselling sessions. These orders were designed to ensure the defendant's reintegration into the community and to reduce the risk of reoffending.

Orders

Orders of the court

See [15]-[17]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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