R v Kim [2020] NSWDC 589

District Court New South Wales

Medium Neutral Citation: R v Kim [2020] NSWDC 589 Hearing dates: 27 July 2020; 30 July 2020; 17 September 2020 Date of orders: 17 September 2020 Decision date: 17 September 2020 Jurisdiction: Criminal Before: M Adams QC ADCJ Decision: Aggregate sentence – full time imprisonment Catchwords: CRIME – Trial by Judge alone - attempt to have sexual intercourse without consent Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Pearce v R (1998) 194 CLR 610 R v Kim [2020] NSWDC 405 R v Ross (No 5) [2020] NSWDC 306 Category: Sentence Parties: Bohruk Kim (the offender) Director of Public Prosecutions Representation: Counsel: Mr J Park of Counsel (for the offender)

Solicitors: H&H Lawyers (for the offender) Mr B Allison, Solicitor Advocate (ODPP) File Number(s): 2019/00230324 Publication restriction: None

Judgment

Introduction 1. The offender, Bohyuk Kim, was convicted after trial on 30 July 2020 of the offence of attempting sexual intercourse without consent contrary to s61I of the Crimes Act 1900. He was charged, in addition, to the offences of sexual touching (s61KC) and common assault (s61), committed at the same time, to which he pleaded guilty in the Local Court on 12 December 2019. He now comes to be sentenced for these offences. The first of these offences carries a maximum term of imprisonment of 14 years, the second of five years and the third of two years. No standard non-parole period applies. 2. The offender was arrested on 24 July 2019 and has been in custody since that date. The sentence will commence from that date. Since the offender entered early guilty pleas to the second and third offences, he is entitled to a discount of 25% in respect of the sentences that would otherwise be imposed for them. So far as the sentence for the first offence is concerned, I accept the prosecution submission that he is entitled to a discount under s22A of the Crimes (Sentencing Procedure) Act 1999 (the Act) for the utilitarian benefit afforded to the community by electing to be tried by judge alone (as explained by Abadee DCJ in R v Ross (No 5) [2020] NSWDC 306 at [33], [36] - [37], who allowed a 5% discount on this ground). Also in respect of this offence, the fact that the offender agreed to a statement of facts relevant to the circumstances of the offence assisted to reduce the issues and hence to shorten the trial. This was a "disclosure" within the meaning of s22A of the Act justifying a further discount. In my view an overall discount of 10% in respect of the sentence for the first offence is appropriate.