R v Sim (No 2)

[2019] NSWDC 316

District Court

New South Wales

Medium Neutral Citation:	R v Sim (No 2) [2019] NSWDC 316
Hearing dates:	15 April 2019
Decision date:	15 April 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 12 years with a non parole period of 7 years 2 months.
Catchwords:	CRIME - SENTENCE - detain for advantage with intent to commit serious indictable offence - aggravated robbery using corporal violence - aggravated sexual assault - choking with intent to commit indictable offence - aggravated sexual assault - aggravated assault
Legislation Cited:	Crimes Act 1900 (NSW), ss 86(2)(b), 95(1), 61J(1), 37(2).
Category:	Sentence
Parties:	Regina (Crown) Jungjin Sim (Offender)
Representation:	Mr Paish (Crown Prosecutor) Mr Fraser (Counsel for the offender)
File Number(s):	2017/377227
Publication restriction:	Non publication order made of the name of the 1st victim or anything else that might identify her.

Judgment ​

1. Jungjing Sim, you appear for sentence today in relation to six principal offences, which you committed in early December 2017. 

2. Five of those offences involved the same victim.

3. The first offence that you committed against her was to detain for advantage with intent to commit a serious indictable offence, namely actual bodily harm. This involves a contravention s 86(2)(b) of the Crimes Act.  The maximum penalty for that offence is 20 years imprisonment.  There is no standard non‑parole period for that offence. 

4. The second offence you committed against that young lady was aggravated robbery, using corporal violence. This involves a contravention of s 94(1) of the Crimes Act.  The maximum penalty is 20‑years imprisonment.  There is no standard non‑parole period for that offence. 

5. The third offence committed against the first victim is that of aggravated sexual assault, with the deprivation of liberty. This involves a contravention of s 61J(1) of the Crimes Act.  The maximum penalty for this offence is 20 years imprisonment. There is a standard non‑parole period of 10 years. 

6. The fourth offence you committed against the first victim is that of attempting to choke a person with the intention of committing an indictable offence.  This involves the combined operation of s 37 (2) and s 344A(1) of the Crimes Act.  The maximum penalty for that offence is 25 years imprisonment.  There is no standard non‑parole period for that offence.

7. The fifth and final offence involving the first victim is a second offence of aggravated sexual assault with the deprivation of liberty. 

8. The sixth offence involved a second victim. This is an offence of aggravated assault with intent to rob and inflict actual bodily harm. This also involves a contravention of s 95(1) of the Crimes Act.

9. In addition to these six principal offences, you have asked me to take into account, in relation to the fourth principal offence, three matters on a form 1 which I have certified.  Those matters are: dishonestly obtaining a financial advantage by deception; intentionally recording an intimate image without consent; and threatening to distribute such an intimate image without consent. 

10. The facts surrounding the six principal offences and the three matters on the Form 1 are contained in a statement of agreed facts.  They can be restated by me as to style but not substance as follows. 

11. In December 2017 the first victim, whom I shall refer to by the pseudonym "Ms Yee" was a student. She came to this country from Vietnam to further her education. She and her boyfriend lived in Burwood. 

12. To support herself, Ms Yee worked, as many students do, in the hospitality industry. 

13. She was a hard-working young lady, often working double shifts in restaurants, which she travelled to and from by public transport. 

14. And as at December 2017 she was 24 years old. 

15. On 9 December 2017, Ms Yee worked one of those double shifts. She had left her home at 9.45am.  She finished the double shift at about 10pm and then caught trains back to Burwood. 

16. When she got to Burwood she went and had some dinner. She left that restaurant almost at midnight and she walked home. 

17. Ms Yee walked past the Westfield at Burwood and, as she did so, you saw her.  Ms Yee continued to walk home unaware that you were following her. 

18. However, when she got the driveway of her home she became aware of your presence.  You ran up to her.  You punched her to the face.  She fell.  You stood over her and punched her five or six more times to the face.  You forcefully removed her spectacles, which she needed to properly see.  You then demanded money from her.  She gave you loose change and her mobile phone.  You then went through her backpack.

19. She was still on the ground.  She was leaning up against the wall of her house.  And then you forcefully ripped her clothes off.  She was left wearing only a t-shirt and her bra. You then used your phone to take photographs of her in that state of undress. 

20. At about this time you were momentarily distracted.  Ms Yee ran off wearing no pants, shoes, or underwear.  You chased her and put her in a headlock and punched her three times to the side of her face. 

21. Whilst still in the headlock, you dragged her back to the outside of her own house.  She was struggling to breathe because of that headlock. 

22. You let her go and grabbed all of her belongings - and then you placed her in another headlock and dragged across the road to other premises. 

23. At those premises you removed the remainder of her clothing so that she was naked.  And you took more photographs of her. 

24. You made her lie down on the ground where you forcefully inserted two fingers into her vagina.  You then removed some of your own clothing.  Ms Yee bravely fought.  She kicked at you. You put your hands around her to choke her.  You then forced her legs apart and you had forceful penile-vaginal intercourse with her.  You did not use a condom.  And you ejaculated into her.

25. Having inflicted this degrading behaviour upon your victim, you then smoked a cigarette. 

26. Ms Yee was terrified that you were going to kill her and so she then engaged in conversation with you in an attempt to persuade you not to do that.  You obtained her mobile phone number and recorded it in your own phone.  And then you told her, having done that, that if she reported what you had done to the police, you would distribute photographs of her - the photographs you had taken earlier that night.

27. You let her go but you kept, amongst other things, her bank card. 

28. Shortly after she walked away from you, you made a number of attempts to use her bank card to extract money from her bank accounts, but the PIN was incorrect. 

29. Ms Yee called her boyfriend and eventually the police were involved. 

30. She was taken to hospital where a number of physical injuries were seen by the medical staff. 

31. There is no evidence before the Court that this victim became pregnant as a result of what you did.  Or that she contracted disease from what you did.  But those were real possibilities.

32. The Court does not have a victim impact statement from this victim.  But the psychological damage that you did to her is undoubtedly going to be far greater than the physical injuries you inflicted on her. 

33. A matter of days after you had done these dreadful things, you were again out and about in Burwood in the early hours of the morning.  On this occasion another young woman was also out and about.  This young girl was even younger than Ms Yee.  Ms Yee was 24.  Ms Acharya was only 21.  And this young woman, who worked as a cleaner, travelling to and from work by public transport, was confronted by you.  You tried to snatch her handbag.  In doing so, you covered her mouth, pushed her onto the concrete footpath, and slapped her in the face four times. 

34. You ran off with her handbag after treating her in that shameful way.  She received cuts and bruises. 

35. Again, there is no victim impact statement from that victim.  And although what you did to her was not as extreme as what you did to your first victim, no doubt she has been traumatised by the experience. 

36. The Court is required to make an assessment of each of the offences in terms of their objective seriousness for an offence of their kind. 

37. In my opinion, counts 1, 2, 3, and 4 are just below the mid‑range of objective seriousness for offence of its kind.  Count 5 is a mid‑range offence; and count 6 is somewhere equidistant between the middle and the bottom of the range.

38. Insofar as the fourth count is concerned (that is the count to which the Form 1 matters are to be taken into account) the matter on that Form of dishonestly obtaining financial advantage by deception would not result in any meaningful increase in the sentence. However, the matters of intentionally recording intimate images and threatening to distribute such images will result in a meaningful increase in the sentence for count 4. 

39. You are presently 32 years of age. 

40. You were born in Korea and brought up in that country. 

41. Your family life as a child was not ideal.  Your father was a person who drank and gambled to excess and who brought considerable misery to your mother, your sister, and yourself. 

42. You left school when you were 15 years of age but, by that stage, you were already causing trouble.  You had been truanting from high school. However, you seemed to have found your feet after you left school.  You have worked hard as a concreter and a steel fixer.  You have worked in the building industry, hospitality industry, and in the security industry. 

43. All of those were physically demanding jobs, which suggests you have some physical strength.  And you also served two years in the Korean army.  Those two factors to which I have just referred are not irrelevant to the circumstances in which you assaulted these two young women.  Although I have no physical description of them, it seems unlikely that they would be in any position to successfully defend themselves from a person as strongly built as you. 

44. You have been binge drinking alcohol since you were 14 or 15 years of age.  You do not seem to have any issues with illicit drugs. 

45. You came to Australia on a working holiday visa in April 2016.  You worked here, prossibly in breach of your visa, but yet you did not get much money from your employment. 

46. On the night that you assaulted the first victim, you had been out on one of your drinking binges.  Then you went gambling - and you had lost your wages.  That provides no justification for what you did to either of these women.  And there is no explanation in any of the material as to why you so viciously sexually assaulted your first victim. 

47. Although you had a less than ideal childhood, it was not a dysfunctional upbringing of the kind the High Court has directed sentencing judges to take into account in assessing an offender’s moral culpability.  

48. You have no other criminal offending in Australia, but you do have a criminal history from Korea - the details of which are limited, to say the least.  But there were two offences of violence in 2013 and 2015 - the second one resulting in a suspended term of imprisonment.  Your criminal trajectory is therefore disturbing. 

49. Because of your convictions in Korea you are not entitled to the leniency which, in appropriate circumstances, is extended to a first offender.  

50. It is difficult for me to form a clear assessment about whether or not you are remorseful for what you have done.  In part, that is because you declined to engage with the psychologist who was to prepare a report for sentence.  That psychologist is unable to provide me with any insight as to why you sexually assaulted your first victim; and the degree of violence used against both victims is also not explained in her report.

51. Remorse is something that an offender needs to prove on the balance of probabilities; and I am not satisfied on that balance of probabilities that you are remorseful - as opposed to being sorry for where you find yourself. 

52. Remorse is an important factor in assessing a person’s prospects of rehabilitation. 

53. Another factor is why a person did what he did and, as I have said, I am unable to understand why you sexually assaulted and violently attacked both of your victims. 

54. And I have noted your criminal trajectory is getting worse. 

55. On the other hand, you have been entrusted in the prison system as a sweeper.  That means that the experienced officers in the corrective setting see something in you.  Plus you have the good work history that I have mentioned. 

56. Your prospects of rehabilitation, in my view, are therefore guarded. 

57. No sentence other than one of full‑time imprisonment for any of these offences is appropriate. 

58. I intend imposing an aggregate sentence.  I am required to state the indicative sentences which underpin that ultimate aggregate sentence. 

59. Before stating the indicative sentences, two preliminary matters need to be addressed. 

60. First, you pleaded guilty at the first available opportunity and, therefore, you are entitled to a discount of 25%. That discount will be factored into each indicative sentence. 

61. Secondly, I have decided, after some hesitation, to make a finding of special circumstances to vary the ratio of the non parole period to the aggregate head sentence.  I have done so because: you speak little, if no English; and you have no family or friends in this country. Therefore, the period of imprisonment will be much harsher for you than for others.

62. Furthermore, I am persuaded that your prospects of rehabilitation would be enhanced by a longer period on parole. 

63. In relation to count 1 on the indictment, the indicative sentence, except for the plea of guilty, would have been 7 years imprisonment.  After the discount of 25%, the indicative sentence is 5 years and three months. 

64. In relation to Count 2, except for the plea of guilty, the indicative sentence would have been 6 years imprisonment.  After the discount of 25%, the indicative sentence is 4 years and 6 months.

65. The same indicative sentence applies to count 3.  However, in that case, the indicative non‑parole period is 2 years, 8 months.

66.  In relation to count 4, and taking into account the matters on the Form 1 in the manner I have previously indicated, except for the plea of guilty, the indicative sentence would have been 8 years imprisonment.  After the discount of 25%, the indicative sentence is 6 years. 

67. In relation to count 5, except for the plea of guilty, the indicative sentence would have been 12 years imprisonment.  After the discount of 25%, the indicative sentence is 9 years imprisonment.  And the indicative non‑parole period is 5 years and 4 months.

68. In relation to Count 6, except for the plea of guilty, the indicative sentence would have been 4 years imprisonment. After the discount of 25%, the indicative sentence is 3 years imprisonment.  The indicative non‑parole period is 1 year, 9 months. 

69. Jungjing Sim of the offences of: detain for advantage with intent to commit serious indictable offence; aggravated robbery and use of corporal violence; aggravated sexual assault and deprivation of liberty; choking with intent to commit indictable offence; aggravated sexual assault of deprivation of liberty; and aggravated assault with intent to rob (of which you have earlier today been convicted) I sentence you to an aggregate term of imprisonment of 12 years. 

70. I fix a non‑parole period of 7 years and 2 months, to date from the date of your arrest, 13 December 2017 and which will expire on 12 February 2025. 

71. I fix a balance of 4 years and 10 months to date from 13 February 2025 and which will expire on 12 December 2029. 

72. Whether you are admitted to parole, Mr Sim, at the end of the non‑parole period, is a matter exclusively for the parole board.  

Decision last updated: 11 July 2019