R v Kim [2014] NSWDC 358

District Court New South Wales

Medium Neutral Citation: R v Kim [2014] NSWDC 358 Hearing dates: 18/03/2014 Decision date: 18 March 2014 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Sentenced to a term of imprisonment of 12 months suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999. Good behaviour bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of 2 years. Catchwords: Criminal - Sentence, entering a dwelling house with intent to commit serious indictable offence, intimidation, parity, extra-curial punishment, early plea. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Law Enforcement (Powers and Responsibilities) Act 2002 Migration Act 1958 Cases Cited: Ahio v DPP [2008] NSWSC 565 Jimmy v R [2010] NSWCCA 60 Postiglione v R [1997] HCA 26; 189 CLR 295 R v Daetz (2003) 139 A Crim R 398 Category: Sentence Parties: Director of Public Prosecutions Dongwook Kim - Offender Representation: Solicitors: Director of Public Prosecutions Conditsis Lawyers - Offender File Number(s): 2012/397428

SENTENCE 1. HIS HONOUR: The prisoner, Dongwook Kim, appears today for sentence in relation to two offences with two other offences to be taken into account on a Form 1. 2. The principal offence alleged against the prisoner contrary to s 111(2) Crimes Act 1900 that he on 21 December 2012 at Lidcombe in the State of New South Wales entered the dwelling house of Shin Young Ha situated at 66 Bombay Street, Lidcombe, with intent to commit a serious indictable offence therein, to wit intimidation, in circumstances of aggravation, to wit he was in company with another person, namely Sangrack Kim and Jaehyuk Kim. This offence, to which the prisoner pleaded guilty at the Local Court and was committed for sentence to this Court, is an offence that carries the maximum penalty of 14 years imprisonment and has no standard non parole period. 3. The second offence for which the prisoner is to be sentenced is an offence alleging that the prisoner, on the same date at the same place in the context of the commission of the earlier offence that I mentioned, intimidated Emanuel Ha with the intention of causing him to fear physical or mental harm. 4. The two offences on the Form 1 are, like the second offence for which the prisoner is to be sentenced, offences that are intimately tied up in the commission of the principal offence. One offence is an offence of intimidation with intent to cause fear to Jonathon Ha, the brother of Emanuel Ha and the son of the intended victim of the principal offence committed on the same date and at the same place, and a rather poorly particularised offence of damaging property committed at the same time contrary to s195(1)(a) Crimes Act 1900. 5. The prisoner had no prior criminal convictions. He was arrested on 21 December 2012 but spent no time in custody. What is of particular significance in this matter is that one of the co-accused in relation to these offences and who pleaded guilty to the same charges and who had the same matters taken into account on a Form 1, Jaehyuk Kim, who I will refer to hereinafter as Jaehyuk, was dealt with by Judge Williams at Parramatta District Court on 8 November 2013. He was sentenced by his Honour by imposing what he described, without any particulars, as an aggregate sentence purportedly pursuant to the relevant provision of the Crimes (Sentencing Procedure) Act to a term of two years imprisonment suspended pursuant to s 12. 6. This is a matter where of course parity or disparity, if appropriate, looms very large for reasons which will be explained by reference to the material before me in this sentencing procedure. 7. The material I have relevant to the objective facts is an agreed statement of facts relating to this prisoner, the statement of facts that were tendered in respect of the co-accused and remarks on sentence in relation to the sentencing of Jaehyuk that I have earlier referred to, and of course, naturally, I have read all that material. I also have a pre-sentence report which I will deal with in a moment. I have some evidence from the prisoner and some character references. 8. In relation to the facts of the matter, I do not propose to read in detail what is the agreed facts tendered in the matter but I believe I can do justice to them by summarising the effect of them and to also point to what might be described as points or particular points of difference between this prisoner and the co-accused. 9. The prisoner was a friend of Jaehyuk and Sangrack. The man Jaehyuk Kim was an employee of the intended victim of the principal offence, Shin Young Ha. Shin Young Ha had two children living at his home at 66 Bombay Street, Lidcombe, Jonathon Ha and Emanuel Ha. Jonathon was aged ten, Emanuel was aged 12. Emanuel of course is the victim of the other offence for sentence, Jonathon is the victim of the offence on the Form 1. 10. Mr Ha owns a tiling business for which Mr Jaehyuk Kim did some work. They had, what would appear to be on the agreed facts, an ongoing commercial dispute as to whether Jaehyuk was being adequately remunerated for the work that he was doing. Amongst other things, Jaehyuk drove Mr Ha's work van from time to time collecting workers, going to worksites and the like. It would appear on the agreed facts that on 20 December the offender Jaehyuk Kim had taken the work van, for reasons not explained fully, without the consent of Mr Ha, or at least that is what Mr Ha has asserted. They had contact on the morning of 21 December and had a series of arguments, it would appear, or an argument at least, after Mr Ha had endeavoured to contact Jaehyuk for some period of time. 11. Mr Ha returned home on 21 December at about 8pm that night and remained for a short period of time and then went off to church. He left his two children in the care of a person named Gui Rim Kim, a boarder at his premises. There was also another boarder at his premises as well. The mother of the children apparently was in the United States. 12. In the meantime, as I understand the evidence and this was also the case conducted by Jaehyuk in front of Judge Williams, Jaehyuk, Sangrack and this prisoner engaged in drinking a quantity of Korean liquor which clearly left them quite intoxicated. In fact the facts reveal that on their arrest, only minutes after the commission of the principal offence, the offenders, including this prisoner, were so intoxicated they could not be read their rights under the Law Enforcement (Powers and Responsibilities) Act 2002. 13. I am not for a moment suggesting, of course, intoxication is a mitigating factor. But it would seem in this intoxicated state, dealing with this prisoner by himself, that he was inveigled by his friends to attend with them to confront Mr Ha in relation to Jaehyuk's commercial dispute. 14. The three of them arrived at the premises to find Mr Ha was not there but to find the two young boys were there. As I understand it, all relevant conversations occurred in the Korean language. All relevant people that I have outlined thus far are of Korean background. It is interesting to note in the facts that at one point, when a neighbour intervened, Jaehyuk said of Mr Ha "the guy is supposed to pay us but he hadn't paid us, he isn't answering his phone so we we've come by to meet him". 15. After this involvement with a neighbour, young Emanuel opened the door. Jaehyuk was recognised immediately. He was quizzed as to where his mother and father were, there was swearing. At this point the prisoner said to Sangrack Kim "he's not here, so let's go". But Sangrack Kim replied "no, let's stay, let's just stay here until he comes". Naturally, it would appear the three men were in an aggressive frame of mind and being intoxicated, of course, would have compounded the impression they set upon the young children. The young children became fearful of the three men. They opened the door on command. One of them was commanded to call his father. I note, however, that although both young men were intimidated, and there is no issue as to that, it is quite clear on the facts available to me that nobody amongst the three intended these young victims any specific injury. In fact at particular points the facts reveal that, for example, Sangrack Kim told Emanuel and Jonathon to "go upstairs, it doesn't matter, even if the police come you need not be worried", and later on, after some furniture had been knocked around and pushed over in the lounge room by the three offenders, Jaehyuk Kim said to the boy Jonathon "it's going to be all right, don't worry, it's nothing to do with you, just go up to your room and stay put". 16. The boarder, who was in the shower, was a young woman and she was too fearful to come out of the bathroom presumably because of the noise and racket being made. 17. Eventually Mr Ha did arrived back home. Jaehyuk Kim and Sangrack Kim exited the premises and approached Mr Ha's vehicle. I note in this regard that they took the lead in confronting Ha and it is quite clear, as the facts otherwise reveal, that this commercial dispute was not one in which the prisoner was involved. Nor can it be fairly said that when one analyses the facts the prisoner took a leading role in so far as seeking to confront Mr Ha albeit in circumstances where he was not home. 18. The prisoner did follow Sangrack and Jaehyuk to Ha's vehicle. There was an incident where Sangrack slapped the bonnet of Mr Ha's car with his hand. The prisoner and Jaehyuk did not touch the car. 19. Then police arrived. The offenders tried to flee the scene but were arrested, Jaehyuk at the premises or just outside the premises, Sangrack and Dongwook a short distance away. 20. The truth of the matter is, as the agreed facts reveal, the prisoner was part of a joint criminal enterprise to commit the three offences, of that there can be no doubt having regard to all the matters, and thus he is equally culpable in a legal sense as the three other offenders. On the other hand, of course, the issue of moral culpability is not necessarily measured by the extent in which the three offenders are equally legally culpable for the crimes that they committed. 21. As I said earlier, the agreed facts suggest that this prisoner did not take a leading role. It is interesting to note that although the offender gets mentioned throughout the agreed facts, nothing is actually attributed to him as having been particularly said by him about contacting Ha, speaking to the boys or anything of the sort, other than the statement he made when discovering that Ha was not home that the three of them should leave, which was the only piece of commonsense exercised on this night. But, unfortunately, his suggestion that they leave was not taken up. 22. In relation to the man Jaehyuk I have read the remarks on sentence and the statements of facts, so I have noted what was pointed out to me in the course of submissions as to some differences between the agreed facts. Those differences are not adverse to this particular prisoner. I note Judge Williams' analysis that he thought that Jaehyuk may have played a lesser role. I have a great deal of difficulty seeing that, on either version of the agreed facts, and certainly it is clear on the agreed facts available to me that this prisoner's moral culpability can be clearly described as lesser than the two co-accused. 23. I am appreciative of the fact, of course, that if it was the case that the prisoner was a hireling that had been brought to this commercial dispute as an enforcer even though he had no particular interest in it, that would be a matter of factual aggravation putting aside anything that might be gleaned from s 21A Crimes (Sentencing Procedure) Act. But it seems that this prisoner was merely an acquaintance or friend or workmate of these other two offenders, he had no commercial interest in the matter, he was to gain nothing from his involvement. He did it out of loyalty and a degree of intoxication and it is clear, when one has regard to the character evidence and the absence of criminal convictions and the other material available to me, that this conduct on the part of the prisoner was entirely uncharacteristic. Of course, one of the matters I am not aware of, and it was not a matter particularly explored when the prisoner gave evidence but needs to be noted, is I am unaware of precisely what the prisoner had been told by the co-accused about the character of the dispute with Mr Ha. To that extent he was somewhat captive to hearsay representations because, as I said earlier, it was Jaehyuk's dispute, not his. 24. In the context of having no criminal convictions I note that the prisoner is 34 years of age, as I understand it. He was born and raised in Korea. He first came to Sydney in 2002 on a working holiday visa. He returned to Korea for a short time and then was granted a student visa, somewhat surprisingly one would have thought at the age of 30, which permitted him to come back to Australia for a period of some years. Unfortunately, he has not been able to pursue his studies and has essentially, as I understand it, been working in casual cash type employment in the building industry and elsewhere similar to the work undertaken by Jaehyuk Kim particularly. 25. Latest enquiries by the Probation and Parole Service reveal that the prisoner, as at 13 February 2014, was on a bridging visa awaiting the decision of the review tribunal in regards to the issue of whether his visa should be cancelled. As I understand it, the prisoner would seek residential status in Australia. 26. He comes from a somewhat deprived financial background in the sense that his father had been unwell for many years, he told the Probation and Parole Service. His mother had worked very hard to support him and his younger sister. His father had then passed away eight years ago and his mother and sister continued to support him, he claimed. 27. He has had an eclectic career. He completed the equivalent of Year 12 in Korea. He did a two year fashion design course. He has undertaken military service for two and a half years in Korea. He has been offered a position to complete a Diploma of Business at what is called a "registered training organisation" in western Sydney, but due to current financial stresses he has been unable to take up these offers. In relation to his current employer he has been working part-time for that employer since March 2013 and is described as punctual and hardworking. 28. He referred to his use of alcohol on the night but did not have a particular difficulty with alcohol, being a social drinker, and there is no suggestion of drug or alcohol abuse. 29. There is in this matter absolutely no connotation of gang connections an the like that sometimes are intimately concerned with commercial disputes of this type. So, I hasten to say, there is absolutely no suggestion the prisoner was hired as some enforcer. In fact, looking at him, his physical appearance does not present as a person who is prone to enforcement activities or violence. He no longer associates with his co accused. 30. He expressed regret for his behaviour. He said he had little recollection of the relevant events. He accepted that his intoxication did not excuse his behaviour and the Probation and Parole Service said that he expressed "a level of shame in regard to his behaviour and also demonstrated insight into the negative impact his offending would have had on the victims". 31. The assessment of him is that he has had generally a stable life in Australia. He has identified alcohol as a factor that contributed to his offending behaviour but he does not present with any past or present issues, and he presents with good insight into his offending and the conduct of his companions and is willing to accept the consequences of his behaviour. He is suitable for community service but unlikely to benefit from a period of supervision by Community Corrections. 32. He gave evidence before me about the consumption of alcohol the night before. He expressed his desire to live in Australia but is concerned about the effect upon his residency by his conviction and expressed regret for his conduct and expressed his contrition in his evidence and took responsibility for his conduct. 33. I also have other material. I have references speaking of the prisoner's good character, his loyalty, his assistance to others, his support for his family, for his professionalism and his work and the fact that he is not a person prone to violent behaviour is the effect of those references. One referee, also known by the surname or family name of Kim, said that during the five years that that person had known him he had never harmed anybody and the disclosure of these allegations made that person sad. He has expressed regret to his referees. I have taken that material into account. 34. I also have a letter addressed to the prisoner's solicitors dated 11 March from a firm of lawyers who are purported 'Immigration Specialists'. It sets out the details relating to the prisoner's background and his various applications for visas and the like. 35. That document sets out some information relating to the issue of desire of the prisoner to seek a more permanent residency in Australia, of the application of s 501 Migration Act 1958, the Commonwealth legislation relating to the issuing of residency, citizenship and other visas. It provides in that section that the Minister or his delegate may refuse a visa application made by a non citizen if a person has not passed the character test, and I do not propose to go through an in-depth distillation of what is contained within the advice that the prisoner's instructing solicitors have received. But the legislation provides that a person will automatically fail the character test for the balance of their entire life if they have a substantial criminal history or record. A substantial criminal record may involve a non-citizen who has been sentenced to a term of imprisonment of 12 months or more, a non-citizen who has been sentenced to two or more terms of imprisonment where the total of the terms is two years or more. In determining the length of the sentence under the character test it is only the term sentenced and not the term served which is relevant. That remains the case even if the term is fully suspended and the person does not serve any time in gaol at all. 36. I note in relation to the definition of imprisonment, as footnoted in the letter, it included "any form of punitive detention in a facility or institution", (see s 501(12) Migration Act 1958), and there are other footnotes that provide some information. 37. It is expressed in the opinion of the immigration specialist that any term of imprisonment of 12 months or more, including a suspended sentence, would lead Mr Kim permanently to fail the character test. These are matters, of course, that are discretionary matters within the thrall of the minister considering all relevant matters. 38. In this matter of course parity or disparity, if appropriate with the sentence imposed upon the co-accused, is a critical matter. I note the "aggregate" sentence imposed in relation to the co accused by Judge Williams, again I point out he provided no particulars as to how he arrived at that particular aggregate. 39. In my view there is a need for a distinction between this prisoner and the co-accused in respect of the principal offence. There are several reasons, although the subject circumstances were largely very similar. 40. Firstly, this prisoner may be distinguished from the co-accused, in an assessment of the objective facts, as being less culpable in the way I have identified. He sought actually to bring the matter to an end before things got out of hand, so to speak, but his request that they leave was turned down by his more enthusiastic co-accused. 41. Secondly, it is clear that he did not suggest this course of action. It was clear that the actions of his co-accused were of a more leading role compared to him. 42. Another matter of relevance was this question that was raised with me of the potential for extra-curial punishment, the extra-curial punishment being the consequences of a conviction by the application of the character test under the Migration Act. In fairness, the learned Crown Prosecutor said the matter as it was articulated by learned counsel for the prisoner was not relevant to the sentencing exercise. 43. My initial feeling was that what was identified within the advice from the immigration lawyers cannot be fairly described as "extra-curial punishment". 44. I have, however, reconsidered the matter in light of the decision of Ahio v DPP [2008] NSWSC 565, a decision of Justice Hislop delivered on 6 May 2008. There his Honour was considering the issue of whether the magistrate had erred in law in failing to take into account, in fixing an appropriate penalty for the offender, the fact that the plaintiff's security licence was automatically revoked as a consequence of his conviction of the subject offence. 45. Having regard to the resolution of the matter by his Honour and noting some of the authorities to which his Honour referred, particularly a case that I described as Diaz in submissions but in fact is cited correctly in this judgment as Daetz (2003) 139 A Crim R 398 particularly at [62], I have come to the conclusion that the potential for assessment of the matter by the Minister could fairly be described as extra-curial punishment. To be frank, however, it is not a matter that is of great significance but certainly I could not conclude that it was irrelevant in the decision-making process in distinguishing this prisoner from the co-accused. The co-accused apparently was due to return to Korea following the sentencing and the issue of extra-curial punishment in the way in which it is raised in this matter was not raised before Judge Williams as a relevant matter. 46. In Daetz the Court of Criminal Appeal held: "In sentencing the offender the Court takes into account what extra curial punishment the offender has suffered, because the Court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case". 1. Likewise, in the guideline judgment in relation to high range PCA matters reported at (2004) 61 NSWLR 305 Justice Howie noted, inter alia, that licence disqualification, which is of course as we know on conviction for a PCA offence an automatic or mandatory consequence, is "Such a significant matter and can have such a devastating effect upon a person's ability to derive income and to function appropriately within the committee that it is a matter which, in my view, must be taken into account by a court when determining what the consequences should be, both penal and otherwise, for a particular offence committed by a particular offender". 1. And earlier in that same paragraph his Honour noted: "Generally, when sentencing for a criminal offence, a court is entitled to consider all the consequences to the offender arising from the commission of that offence in determining what penalty to impose. Extra-curial punishments are routinely taken into account by sentencing courts and it would be unjust to do otherwise:. 1. Turning of course then to the issue of parity, of course parity of sentencing is one where the courts are not required in sentencing co offenders to impose the same sentence simply because the offenders commit the same offence. The matter is succinctly discussed by the High Court in the judgment of Justices Gaudron and Dawson in Postiglione v R and has recently been discussed at length in the Court of Criminal Appeal judgment of Jimmy from 2010, both Justice Rothman and Justice Campbell, as well as I hasten to say Justice Howie, in three separate judgments discussed the matter at length. 2. To paraphrase the more eloquent words of Justice Rothman, parity of sentencing is merely another fact of equality of treatment of offenders and of equality before the law, it is an extension of what is described by his Honour as Aristotelian principles of equality, alike shall be treated alike and the unalike shall be treated unalike to the extent of their unalikeness. 3. In this matter, analysing it as closely as I can, even allowing for the very similar subjective circumstances there is an unlikeness between this prisoner and his co-accused. There is, first of all, the lesser moral culpability of the prisoner, if I might describe it as that, and also, on any analysis of the agreed facts, a lesser role in the perpetration of the joint criminal enterprise for which he was responsible and there is the added issue of the potential for extra curial punishment. There is also the material within the pre-sentence report, although as I said subjectively this prisoner is not much different from the co accused already deal with. 4. In this regard I point out, of course, that in determining that there should be some distinction between this prisoner and the co-accused, the distinction should not be so great as to leave in the mind of Jaehyuk Kim a sense of justifiable grievance. Hence, in the circumstances of the matter, all things considered, it is clear, notwithstanding s 5 Crimes (Sentencing Procedure) Act, that a term of imprisonment must be imposed in respect of the principal offence. 5. Of course, in sentencing for the principal offence, I take into account the guideline judgment relating to Form 1 matters from 2002 and particularly the observations of the learned Chief Justice of the Court, Chief Justice Spigelman, between paras 18 and 43 where he talked about the need to give proper weight to the matters on a Form 1 sometimes leading to a greater penalty than otherwise would be required for the principal offence without the Court having to necessarily analyse the extent to which the principal offence penalty has been increased. In certain circumstances matters on a Form 1 will point to greater need for personal deterrence and the need for punishment and the entitlement of the community to extract retribution. 6. That having been said, as I have earlier pointed out the Form 1 matters in this affair by relationship to the principal offence are intimately bound up with the facts of the principal offence, they very much fall from the circumstances of the commission of the principal offence. This is not a situation where one is sentencing an offender, for example, for an armed robbery and having to take into account two or three quite separate armed robberies into account on a Form 1 where the penalty ultimately to be imposed for the principal offence would be, one would have thought, substantially increased in those circumstances. 7. In the context of dealing with this matter I have certainly had close regard to what their Honours said in the guideline judgment. I am, obviously, also required to have regard to the terms of s 3A Crimes (Sentencing Procedure) Act and in the context of the need for some element of general and personal deterrence again I conclude that it is appropriate to impose a term of imprisonment of the length I have considered appropriate for the principal offence. 8. Likewise, in relation to the other offence for sentencing but in the context of the criminality relating to the principal offence, the second offence can be seen as very collateral to the commission of the principal offence. 9. I am required, of course, to have regard to s 21A Crimes (Sentencing Procedure) Act, which I have. There are no specific aggravating factors arising particularly under s 21A(2) that I need to consider, none have been specifically addressed upon and all relevant aggravating factors have been identified from the facts as I have outlined them. 10. With regard to mitigating matters, there are many. The offences that I am required to sentence the prisoner were certainly not planned offences, nor offences committed in the context of organised criminal activity. The prisoner was a person of good character. The prisoner has no prior convictions. The prisoner has excellent prospects of rehabilitation. 11. In my view the prisoner is unlikely to re-offence, I believe his experience in this matter is a salutary experience. He has shown remorse and taken responsibility for his actions, and of course his plea of guilty to each offence is a mitigating factor. For each plea he receives, as I earlier indicated where appropriate, a discount of 25%. 12. The sentencing of the offender however, as I have earlier pointed out, in all the circumstances still requires, as I have reasoned, the imposition of a term of imprisonment but suspended in the context of the reasoning of Justice Howie in the decision of Zamagias. Thus, in respect of the offences to which the prisoner has pleaded guilty I make the following orders. 13. In respect of the principal offence - you can stand up, sir - which is sequence 1 in the sequence of offences, that is the enter dwelling house with intent to commit a serious indictable offence in circumstances of aggravation, the offender is convicted. He is sentenced to a term of imprisonment for 12 months. That term of imprisonment is suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. Conditions of the bond that he will be required to enter are that: (1) he is to be of good behaviour; (2) he is to appear before court if required to do so or called upon to do so; (3) he is to advise the registrar of the criminal listing directorate or the District Court criminal registry of any change of residential address. 1. I do not propose to fix any requirements for supervision. 2. In respect of the other offence, the offence of intimidation, my view of that matter is that the prisoner should be convicted on him entering into a bond pursuant to s 9 Crimes (Sentencing Procedure) Act to be of good behaviour for two years. Thus his freedom will be restrained for that period on the same conditions as I fixed for the suspended sentence, that is that he be of good behaviour, he appear in court if required to do so for sentence and that he advise the Court of any change of residential address. 3. In fixing the sentence for the principal offence, as I earlier have said, I have taken into account the two matters on the Form 1. 4. HIS HONOUR: You will be required to go to level 4 to enter into the bond, Mr Kim, and I'm sure the Minister for Immigration will take into account my remarks on sentence. I hasten to say I want you to clearly understand, however, that whilst taking into account the potential action of the minister, a court cannot structure its sentence merely to accommodate administrative consequences that flow from convictions, although the potential for some administrative action or ministerial action is as I have said still relevant in the sentencing procedure. 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: 23 October 2015