R v KIM [2000] NSWCCA 489

New South Wales Court of Criminal Appeal

CITATION : R v KIM [2000] NSWCCA 489 revised - 18/12/2000 FILE NUMBER(S) : CCA 60387/00 HEARING DATE(S) : 24/11/2000 JUDGMENT DATE : 24 November 2000

PARTIES : REGINA v Dae Hyun KIM JUDGMENT OF : Barr J at 1; Carruthers AJ at 32

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1172 LOWER COURT JUDICIAL Gibson QC DCJ OFFICER :

COUNSEL : Crown: P Hock Applicant: C Waterstreet SOLICITORS : Crown: SE O'Connor Applicant: Penhall & Co

R v Chanh, Court of Criminal Appeal, 16.12.92, unrep CASES CITED: R v Govinden (1999) 106 A Crim R 314 R v Luong [2000] NSWCCA 139 R v Beswajeet Singh, Court of Criminal Appeal, 16.12.94, unrep DECISION : Leave to appeal granted; appeal dismissed; recommendation for deportation quashed

IN THE COURT OF CRIMINAL APPEAL 60387/00

BARR J CARRUTHERS AJ

Friday, 24 November 2000 REGINA v Dae Hyun KIM JUDGMENT

1 BARR J: Dae Hyun Kim seeks leave to appeal against the sentences imposed in the District Court. He pleaded guilty to two counts of robbery in company and to one count of robbery in company with deprivation of liberty. Each offence carried a maximum of twenty years' imprisonment. Gibson QC DCJ sentenced the applicant on the first two counts to fixed concurrent terms of imprisonment each of nine months and on the third count to a concurrent term of imprisonment of two years, eleven months and two weeks, comprising a minimum term of eleven months and two weeks, and an additional term of two years. In imposing sentence his Honour took into account two weeks' pre-sentence custody. The minimum term fixed by his Honour is due to expire on 13 February 2001. 2 The applicant is apparently a Korean national and was resident in Australia under the terms of a student visa. He lived with his family, the members of which are also present in Australia on business visas, intending in due course to apply for permanent residency if not citizenship. 3 On 17 November 1998 the applicant had just about reached the end of Year 11 at high school. On 17 November 1998 he and three other people, at least two of them young persons, committed the offences to which the pleas of guilty were ultimately entered. 4 The applicant had got himself into financial difficulties. He was a music student. Some musical instruments of his had apparently been pawned and he needed to raise an amount of money which for him was substantial. He had no criminal experience and no means of raising the money lawfully or unlawfully from his own resources. He did, however, know a young person, whom I will call W. He knew that W knew how to raise money by unlawful means and he decided to seek W's help. He attempted to telephone W one evening. The attempt was unsuccessful. He spoke to him again the following morning. A meeting was arranged, and they decided that they would seek someone from whom they could steal money. 5 As I have said, the applicant had no first-hand experience of this kind of conduct, and he relied throughout on the expertise of W. Nevertheless he was with him throughout the events which followed. The applicant, W and two others, at least one of whom was a young person, surrounded three sixteen year-old boys at Central railway station. They were schoolboys on their way home. The four made the three walk to the basement of a restaurant in George Street and required them to sit at a table. One of the three, W I think, but certainly not the applicant, demanded their wallets and they handed them over. The applicant took one of them. He and his colleagues took from them cash and personal belongings. There was not a lot there. The yield was only $20-odd, train and bus passes and a concession card. 6 The one who had first demanded the wallets demanded payment of $500. When it looked as though it was not forthcoming the demand was moderated to $300. The speaker required two of the victims to go and get the sum of $300 whilst the third was forced to stay with the applicant and the others. The one who was forced to stay behind was a brother of one of the two sent away to get the money. The two were told that if they did not get the money and bring it back they would be killed. They were told to come back to a particular place in two hours and have the money with them. Fortunately, they reported the matter instead and in due course the applicant and the two young persons were arrested. The fourth person got away. 7 The applicant was interviewed by police and admitted his involvement in the matter. 8 The applicant was almost nineteen years old at the time of the events and was twenty years old when sentenced. 9 There are two grounds of appeal. It is submitted first that the sentence was so long as to demonstrate error. Secondly, the applicant says that he has a justifiable sense of grievance by comparison of his sentence with those imposed on the two young persons who were caught, particularly that passed upon W, the experienced young person. 10 It was submitted before the sentencing judge and before this Court that the offences were at the lower end of the range for offences of this kind and no worse or little different from "schoolyard bullying." It was submitted that the objective and subjective features were so extraordinary and exceptional that a non-custodial sentence "would be almost demanded". 11 During the applicant's interview with the police there were these questions and answers. Q38 It is alleged that earlier today you were involved in this kidnapping with other people. What do you have to say about this matter? A(INTPRTR) I would like to say that it wasn't kidnapping. Q39 Could you tell me what, what it was? A(INTPRTR) Money was needed so someone attempted to snatch money. There were three people. When I say three people, the other side people. I would like to explain what happened at first. I needed money at first. I called (W). I never took money from other people in the past. I called (W) to ask help from him, (W) is a friend of mine and also I heard that (W) has done something like this before. The person who came with me to this police station has got an English name, but I don't know his English name. Would you mind just asking him what his name is? Q40 The person in the police station we have downstairs? A(SUSPECT) Yeah. Yeah. Q41 We, we can ask him his name at the end of the - - - A(SUSPECT) All right. Q41 - - - interview. A(SUSPECT) I think he's got English name, but I think Kevin. Anyway, anyway. A(INTPRTR) (W) was called and the other person, Kevin. I and Kevin came together, and (W) and another person came so we, four of us met, met up. We tried to find someone who we can get money from. Now (W) spotted a person from whom he took money in the past, and then the three people were taken to the McDonald's and were spoken. Those people did not have much money on them, and (W) ordered them to bring some money. And …. I asked that if all three of them go then they might not return, so there, the decision was made that one person would be staying with us, and that decision was made by (W). While, while we were waiting for them we also attempted to, we attempted, while we were waiting we attempted to do it but we weren't successful. I, I, he says, I don't agree what this interpreter just said. It sound like that, as if we did something. Q42 Would he like to clarify what he said then? A(SUSPECT) Mmm. A(INTPRTR) We intended to get money out of other people but we could not do it. When David was with us we left him free. He was in the entertainment room, Galaxy, at George Street and also he was given some tokens by (W) and he played the games. And while he was with us all we did was ask him some questions and talking together. The people who were sent to, to purchase some money were asked to come back by 6 o'clock. But they didn't turn up by 6.00. He was also, he was also told once to go home and also we were intending to send him home, and all of us were going to go home as well. … Q59 Is that, where did he contact (W) to get money? A(INTPRTR) Yesterday, last night I tried to ring him but I couldn't. I was asked to ring in the morning, so I rang him in the morning, so I made an arrangement with him to meet at 3 o'clock today. … Q162 And who was that money going to be for? A(INTPRTR) Most of the money was supposed to come to me, and, and I also said, I will give some money to the person who came with me. When I say the person who is - - - A(SUSPECT) Kevin. A(INTPRTR) - - - downstairs, David. A(SUSPECT) Kevin, Kevin. A(INTPRTR) Kevin. 12 It was submitted to this Court that the criminality of the applicant was low and that the principal part was played by W. One can easily accept on the evidence to which I have referred that W played a very important part, perhaps a leading part, in the criminality of the four. However, it seems to me that the criminality of the applicant himself was not small by comparison. 13 Lacking knowledge and experience himself, he did what he could to engage the services of an experienced person. He knew when he did so that it would be necessary to carry out criminal activity. He remained with the expert throughout. He had things to say about what should be done from time to time. It was his suggestion that when the boys were to be sent away to get money one of them be detained. He says that he told the police that it was W who made that decision, but the idea, he acknowledges, was his. His criminality in that respect in my view was substantial. 14 The boy who was detained was held against his will between 3.30pm and 6.30pm. He was afraid for his life. His anxiety was heightened by the fact that the attackers demanded his telephone number and home and school addresses. Objectively the offences were very serious. 15 The applicant presented a subjective case of the strongest kind. Although he did not give evidence others did on his behalf and that evidence, corroborated by the pre-sentence report, showed that he was remorseful. 16 His headmaster gave evidence to the effect that he was a fine student, musically gifted, who was looked up to in the school. In the opinion of the headmaster, and as it appeared from all the evidence available, what was done was out of character. 17 The question for this Court is not what sentence this Court might have imposed if the proceedings had been held here. It is whether it was open to his Honour to impose the sentence that was imposed. I do not think that error has been demonstrated on the part of the sentencing judge. I do not think that it can be said that any custodial sentence or the custodial sentence imposed could be said to be outside the proper range of his Honour's sentencing discretion. 18 There is, however, a second ground of appeal. The two co-offenders who were caught were both dealt with in the Children's Court. W was dealt with at Bidura Children's Court on 29 March 1999 for three counts of robbery in company and one detain for advantage. He was sentenced to twenty-four months' supervision by the Juvenile Justice Department. 19 The other offender was dealt with at Bidura Children's Court on 11 March 1999 for three counts of robbery in company. For one he was sentenced to a community service order of twenty-five hours and on the others he was sentenced to twelve months' supervision by the Juvenile Justice Department. 20 When considering questions of disparity between sentences imposed between adults and children, it is proper to recognise that the sentencing regime in the Children's Court is different from that which applies in adult courts. Although sentences imposed upon children may not always be irrelevant in considering questions of disparity with sentences imposed on adults - see R v Govinden (1999) 106 A Crim R 314 at 319 - I do not think that the sentences imposed upon the two younger offenders in this matter can properly give rise to a legitimate sense of grievance on behalf of the applicant. I refer not only to the substantial part he played in the planning and execution of this serious bout of criminality, but to the difference between his age - eighteen years and eight months - and the ages of the others - sixteen years two months and fifteen years and eleven months respectively. 21 I have not over looked the important part played by W and the markedly lenient sentence that he received for his part. I assume in favour of the applicant that the facts upon which W was dealt with were identical to those that were before the sentencing judge. Even so, the difference to my mind is easily accounted for by the age of W and the special regime under which he was entitled to be sentenced in view of that age and what I think is ultimately the quite close similarity between the criminality of the applicant and W. 22 Before leaving this appeal it is necessary to say something about a further matter. Following the taking of the pleas, evidence and the submissions of counsel about the appropriate sentences, his Honour adjourned the matter to a later day for sentence and just before the adjournment this exchange took place. The Crown Prosecutor had just made a submission and his Honour said, apparently to the Crown Prosecutor: That's a matter for the Commonwealth but I'm asking you if there's any reason why I shouldn't recommend that he be deported? (Crown Prosecutor): I have nothing I can put before your Honour. 23 The remarkable thing is an important topic of this kind was first raised when the argumentative part of the proceedings was about to finish and that no response seems to have been invited from or given by the practitioner who had the responsibility of the carriage of the matter on behalf of the applicant. That is the only discussion about the topic of deportation that the transcript reveals took place. 24 On the adjourned day, having shortly reviewed the facts and having imposed sentence, his Honour said this - I recommend that on his release he be deported. 25 It has been suggested in this Court that there was no more than a technical raising of the matter before his Honour made such a serious recommendation and that there was no real opportunity for the applicant to deal with a serious matter of that kind. 26 "Sentence" is defined in s 2 Criminal Appeal Act as including any recommendation or order for deportation in the case of a person convicted. Such a matter has been raised in this Court before. In Regina v Chanh, an unreported decision of this Court of 16 December 1992, such a recommendation was made and was the subject of criticism on appeal. The Court comprised Meagher JA, McInerney and Badgery-Parker JJ. This appears in the judgment of the Court at p 4 - In each case where an order recommending deportation was made, there was an appeal against such an order. In this regard, each appeal must be upheld. The Crown did not contest the fact that his Honour did not put to any of the accused that he was minded to consider making any such order. To make an order in these circumstances therefore involves the plainest breach of the rules of natural justice, and in each case the order in question must be quashed. 27 In a further case in this Court, Regina v Biswajeet Singh, 16 December 1994 unreported, the Court considered an appeal of a similar kind. It appears that the matter had been aired with proper notice in the Court below and that is why the appeal failed. This appears at page 27 of the judgment of Smart J, with whom Hunt and Levine JJ agreed. Biswajeet Singh would have had grounds for complaint if the judge had made the recommendation without giving Biswajeet an opportunity to be heard. That is not this case. 28 In Regina v Luong [2000] NSWCCA 139 the question was touched upon again in the judgment of Smart J with whose reasons Priestley JA and Foster AJA agreed. His Honour said at para 25 - The judge dealt with imposing the sentence which he regarded as correct. The recommendation for deportation was a further and separate matter. For my part I would refrain from making any recommendation. Questions of breaking up the family and the husband not seeing his son would require consideration. 29 As I said at the beginning of this judgment, the family of the applicant is resident in Australia on temporary conditions. They hope to make their stay here permanent. Knowledge of those matters was before the sentencing judge. If the Department of Immigration were to heed his Honour's recommendation there might be substantial repercussions affecting not only the applicant but the whole of his family and their business and economic life. 30 In the circumstances the question was a weighty one which, if it was to be raised, ought to have been raised only on such notice as allowed the defence a reasonable opportunity to respond. In my opinion no proper notice was given to the applicant and no proper opportunity allowed to him to respond. In the circumstances I think that the recommendation was inappropriate and that an order ought to be made quashing it. 31 The orders of the Court that I propose are that leave to appeal should be granted, that the appeal should be dismissed and that the recommendation for deportation of the applicant should be quashed. 32 CARRUTHERS AJ: I agree. 33 BARR J: The orders of the Court are as I have proposed. **********