Kim v R [2020] NSWCCA 288

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kim v R [2020] NSWCCA 288 Hearing dates: 7 October 2020 Date of orders: 11 November 2020 Decision date: 11 November 2020 Before: Payne JA at [1]; Davies J at [80]; Garling J at [84]. Decision: (1) Application for leave to appeal granted; (2) Appeal dismissed save for order (3) below, which is necessary by reason of the applicant being granted appeal bail; (3) Set aside the sentence imposed in the District Court on 9 April 2020 and in lieu thereof impose the following sentence: (a) On count 3 in the indictment the applicant is sentenced to 12 months imprisonment commencing on 4 July 2020; (b) On count 1 in the indictment, the applicant is sentenced to a non-parole period of 4 years to date from 4 January 2021 with an additional term of 2 years expiring on 3 January 2027. The offender is first eligible for parole on 3 January 2025; (4) The applicant is to be taken into custody today. Catchwords: APPEALS – jury verdict – conviction appeal – where applicant convicted of one count of sexual intercourse without consent and one count of assault but acquitted on one count of sexual intercourse without consent – where jury returned mixed verdicts on two counts which involved conduct that occurred in close proximity in time – whether mixed verdicts irreconcilably inconsistent – whether verdicts of guilty unreasonable and not supported by evidence Legislation Cited: Crimes Act 1900 (NSW), ss 61, 61J, 61I Cases Cited: AH v R [2019] NSWCCA 152 Jafary v R [2018] NSWCCA 243 Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 ML v R [2015] NSWCCA 27 Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Stone (Court of Criminal Appeal (England and Wales), 13 December 1954, unrep) SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 Category: Principal judgment Parties: Stuart Kim (Applicant) Crown (Respondent) Representation: Counsel: A Bellanto QC with T Bicanic (Applicant) B Baker (Respondent)