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. The facts 1. These are set out in detail in the judgment convicting the offender (reported at R v Kim [2020] NSWDC 405) and do not need to be repeated, except briefly. The circumstance of the offending were recorded on CCTV. In the early hours of the morning of 19 July 2019, the offender, who had been drinking for some hours after he finished work, was walking unsteadily up the street where the apartment block in which the victim resided. He noticed her in the entrance hall attempting to find her keys. He watched her for a few minutes and then approached her, grabbing her from behind with both arms. At first, the victim thought he was her boyfriend playing a trick on her but very quickly realised this was not so when the offender grabbed her breasts, one with each hand from behind (the offence under s61KC.) She unsuccessfully struggled to free herself. The offender put his right hand under the bottom edge of the victim's skirt onto the front of her right thigh. She pushed it away and pulled down her skirt. They then fell, the victim on the ground and the offender on top of her. The CCTV indicates that offender had instigated the fall to bring the victim to the ground. The victim thought she felt him try to lift her skirt again and she used her hand to pull her skirt down to prevent access. She was not sure whether he was able to reach under her skirt on this occasion. 2. The victim shouted for help. The offender covered her mouth with his right hand, which she then bit as hard as she could. He removed his hand and punched her with his left hand to the back of her head several times and, as he got to his feet, punched her again and walked away. Due to the offender's extreme drunkenness, the force of the blows was insufficient to cause injury and some protection was afforded by the hood on the coat worn by the victim. (These are the assaults constituting the offence under s61.) When the offender left, the victim got to her feet and sought assistance at a nearby store. The interaction had taken something like two minutes. The offender desisted only because of the victim's determined resistance. Subjective features 1. The offender has no criminal convictions either in Korea or Australia. Tendered on behalf of the offender without objection was an assessment report obtained from Mr Oliver Brecht, a psychologist. Mr Brecht obtained a personal history from the offender from which the following details (which, I understand, are not in issue) are taken. The offender was born 32 years ago in South Korea to a working-class family which, despite the constant work of his parents, was often in debt. Although he had difficulties with his parents, he was close to his grandmother whom he contacted weekly, even whilst in gaol. He did not perform well at school, where he was often bullied. He worked part-time from the age of 11. Ultimately, he was able to obtain a bachelor's degree in hospitality. He spent two years performing mandatory military service. After completion of this service and graduation he obtained employment in the hospitality industry for some 10 years before relocating to Australia in June 2018. He worked at a farm in Queensland and eventually found work in various Korean restaurants as a chef. He found life in Australia stressful and frustrating because he spoke limited English and was unfamiliar with the culture and was socially isolated until he made some Korean speaking friends. 2. The offender is physically healthy and, despite a period he described as "burnout" when he was about 21 years old, which required psychotherapy and brief medication, does not have any diagnosable psychological disorder. Although on the occasion of the offences, the offender had been drinking heavily, this was in a social context and did not reflect his usual moderation. There are no identifiable criminogenic treatment needs. During his incarceration he has managed to improve his English language skills and completed a number of worthwhile vocational courses, despite the difficulties of so doing whilst on remand. The offender understands that he will be deported from Australia in due course back to South Korea, where he intends to continue his career in the hospitality industry. 3. The offender told Mr Brecht that he could not remember committing the offences and only learnt about them when he was shown the CCTV recording by police. He said that he was disappointed in himself and shocked that he had done what was depicted. He had no explanation for his conduct except his intoxication. Although he has made the best of his time in gaol, it has been a more difficult experience for him, given his origins, slight build and lack of English, than the general run of prisoners. 4. Overall, it is Mr Brecht's opinion that the offender is at low risk of committing further offences. 5. The offender provided a letter to the Court in which he expressed remorse for his actions and sympathy for the victim in terms which, I am persuaded, are genuine and deeply felt. Also tendered were letters from the offender's mother and the owner of the restaurant where he was working at the time of the offending which provide support for this view. 6. I am satisfied that the offending was spontaneous and occurred only because of the disinhibition brought about by the offender's extreme intoxication. I accept they were out of character and constitute an aberration for a person, otherwise of good character, which is unlikely to be repeated. Victim Impact Statement 1. The victim, who came from Thailand, provided a statement to the Court about the effect of the offending on her, which was significant. She was extremely frightened and thought that she might die. She has feelings of fear and paranoia and has needed to take medication. She was unable to study and returned home for a period to spend time with her family and obtain psychiatric assistance. Since her return, the victim has been feeling better but becomes upset when she is reminded about what happened. Assessment 1. The prosecution rightly points to the actual or threatened use of violence as an aggravating feature within the meaning of s21A(2)(b) of the Act. It should go without saying that the offending for which sentences must be imposed is serious. Although the attempted crime was not committed, this was not because the offender voluntarily discontinued his attack but because he was fought off by the victim. The likelihood that he could have succeeded was, however, exceedingly low given his drunken state. In the result, despite the assaults, the victim was not physically injured. Although the offending occurred over the space of only two or so minutes it (unsurprisingly) was terrifying to the victim. 2. Considering the range of circumstances covered by the first charge, this case should be placed in the lower range of objective seriousness. However, its gravity requires a sentence of full-time imprisonment to be imposed, having regard particularly to the requirements of denunciation and deterrence. 3. Considered in isolation, the second and third charges are not of such objective seriousness as to necessitate sentences of full-time custody. However, in reality, the grabbing of the victim from behind was the commencement of the attempt offence, whilst the assaults were a response to her biting the offender's hand as he was attempting to silence her calls for help. Thus, whilst it is necessary to give these offences separate consideration, their objective seriousness is informed by the context in which they were committed. This is not to double punish. I have not taken them into account in sentencing the offender for the attempt offence and have borne in mind, as a matter of first principle, the necessity to ensure that the overall sentence reflects the totality of the offender's criminality: Pearce v R (1998) 194 CLR 610; Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1. 4. The offender is otherwise of good character, with excellent prospects of rehabilitation but will be assisted by supervisory support on his release for longer than the period that would be allowed by applying the statutory ratio in s 44 of the Act. I have therefore concluded that special circumstances exist justifying a reduction of the non-parole period the offender must serve before release on parole. Sentences 1. This is a case in which the imposition of an aggregate sentence is appropriate. The following are the indicative sentences that would have been imposed had this course not been taken – 1. in respect of charge 1, the starting point is imprisonment for 3 years which, discounted for assistance by 10%, results in a sentence of imprisonment for 2 years and 8 months (rounded down); 2. in respect of charge 2, the starting point is imprisonment for 6 months which, discounted for early plea by 25%, results in a sentence of 4 months (rounded down); and 3. in respect of charge 3, the starting point is imprisonment for 6 months which, discounted for early plea by 25%, results in a sentence of 4 months (rounded down). 1. The aggregate sentence is imprisonment for a term of two years and 10 months, commencing on 24 July 2019, with a non-parole period of 1 year and 8 months, expiring on 23 March 2021 from which date the offender is eligible to be considered for release on parole. Amendments 06 October 2020 - coversheet - corrected representation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2020