Kim v R

1. [1]

   PAYNE JA: I agree with Lonergan J that the sentence imposed upon the applicant did not properly reflect the different roles played in the offending by the applicant, on the one hand, and his father, on the other. The context of that offending was the clear evidence that the applicant was subservient to his father in the commission of this offence and in other aspects of his life. The lack of disparity in the sentences imposed in this case cannot be justified as a proper exercise of the sentencing judge's discretion. Ground 1 has been made out. It is unnecessary to address ground 2 in those circumstances.

2. [2]

   I agree with Lonergan J, for the reasons her Honour gives, about the sentence which this Court should impose upon the applicant.

3. [3]

   BUTTON J: I agree with Lonergan J. In particular, I believe that the degree of differentiation between the two non-parole periods – three months – was erroneous.

4. [4]

   LONERGAN J: The applicant seeks leave to appeal against a sentence imposed in the District Court at Parramatta by Bennett SC DCJ on 13 October 2017.

5. [5]

   The applicant pleaded guilty on 20 July 2017 to one count on indictment of aggravated break and enter and larceny contrary to s 112(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. The offending was carried out with his father, Sung Sub Kim.

6. [6]

   The sentencing judge sentenced the applicant to imprisonment for 6 years with a 4 year non-parole period to commence on 3 December 2017. The applicant will be eligible for release to parole on 2 December 2021.

7. [7]

   The applicant’s father pleaded guilty to the same offence. He was sentenced to imprisonment for 6 years and 6 months with a non-parole period of 4 years and 3 months to commence on 6 August 2017.

8. [8]

   The father’s sentence is relevant to ground 1 of the appeal regarding parity.

9. [9]

   A short extension of time within which to bring the appeal was granted unopposed.

GROUNDS OF APPEAL

1. [10]

   The applicant relies upon two grounds of appeal:

   1. (1)

      There was insufficient disparity between the sentences imposed on the applicant and his father such that the applicant has a justifiable sense of grievance.

   2. (2)

      The sentence imposed on the applicant is manifestly excessive.

2. [11]

   The facts of the offence committed by the applicant together with his father were presented to the sentencing judge as two statements of agreed facts one relating to each offender. Whilst slightly different in terms his Honour found no relevant difference affecting his sentencing exercise.

3. [12]

   It is necessary to set out in full the statement of agreed facts relating to the applicant, as it includes relevant details of the applicant’s participation and thus the overall criminality entailed in his role in the offending:

Findings by the sentencing judge

1. [13]

   The sentencing judge dealt with both offenders together within one set of Remarks on Sentence (“ROS”). He commenced the ROS as follow:

2. [14]

   Although the Crown specified in the indictment one circumstance of aggravation - that is that the offenders were in company - there were additional factors relevant to the criminality, namely the use of corporal violence upon the victim, deprivation of her liberty and that they knew she was in the premises at the time they entered.

3. [15]

   After referring to the role of the standard non-parole period and the maximum penalty in fixing legislative guide posts for sentencing, the sentencing judge assessed the objective seriousness as above mid-range.

4. [16]

   The sentencing judge noted that whilst on bail, the applicant and his father had engaged in and been sentenced for other conduct involving false representations to police. They were both charged on 6 January 2017 in respect of that offending, and both were sentenced in the Local Court after guilty pleas on 25 August 2017. Both were sentenced to periods of imprisonment, the applicant for 12 months, including a non-parole period of 7 months.

5. [17]

   The sentencing judge dealt with the issue of accumulation of the applicant’s sentence in light of that other offending and there is no complaint about that in this appeal, however the relevance of this other misconduct was noted by the sentencing judge as evidencing that notwithstanding that the applicant and his father had been arrested, and were awaiting trial for aggravated break and enter and larceny, they were willing to continue with criminal misconduct in another context in the pursuit of money. The sentencing judge found that that informed the aspect of specific deterrence and the extent to which the court can accept the submissions of counsel that there are strong prospects for rehabilitation, however, the sentencing judge concluded that this further misconduct was a reflection of desperation for money.

6. [18]

   The sentencing judge noted that the pleas of guilty were entered by both; insight, contrition and remorse were demonstrated, and that in each case there were strong prospects for rehabilitation.

7. [19]

   The sentencing judge referred to the need to bring into account general deterrence, the need for there to be recognition of the harm that was suffered by this victim, that both offenders must be made accountable and face the consequences of what they have done and that the court must clearly and unequivocally denounce their behaviour (ROS page 16).

8. [20]

   Reference was made to the presentence report prepared for the applicant’s father and a series of references tendered in his support were noted. The sentencing judge concluded that the applicant’s father had a low risk of reoffending, but community-based sentencing options were out of the question, as conceded by both counsel, because of s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

9. [21]

   The pre-sentence report for the applicant was analysed. That report indicated that the applicant had a clean record and no management concerns and that he had suffered a disjointed upbringing, coming to Australia from South Korea when he was young and living on the Central Coast until he commenced primary school. For reasons unknown, he was then left in the care of family friends for a period of time. His mother returned to South Korea and he was required to relocate with his father to Sydney and he spent the next two years without schooling. The report records that the applicant realises now that that was probably because he was an unlawful citizen at that time. When he was 12, he was returned to South Korea to live with his mother where he remained until he was 19. He came back to live in Australia with his father, stepmother and half siblings. There was mention of a strained relationship with his father which had become worse because of the offending.

10. [22]

    The sentencing judge specifically extracted those parts of the report that indicated that whilst acknowledging the seriousness of his actions, the entire event was planned by his father, and due to cultural reasons the applicant felt that he was unable to say no. He was worried that if he did not agree to take part, he would be homeless.

11. [23]

    There was also a psychologist’s report to which the sentencing judge referred which gave more background, including that the applicant worked in his father’s business and was not paid a wage or salary but received only food and board. He reported feeling very sad and helpless over the past three years since his return to Australia, frequently crying, feeling like he wanted to run away from his father but having no finances or place to go should he leave his father’s home. There is a reference to thinking about suicide but never acting on this, and that the applicant currently is focused on returning to South Korea to live with his mother.

12. [24]

    The sentencing judge quoted from the account of the offending provided by the applicant to the psychologist. He described feeling shocked and frozen about what happened when he witnessed his father’s actions, for example forcing his way in and pushing the victim to the ground and that he felt scared. He felt distressed by the victim’s calls for help, had difficulty sleeping since then and has a strong sense of guilt. He regretted what he did and does not know why he did it. The psychologist noted that he appeared to be accepting of his fate and punishment.

13. [25]

    Reference was made by the sentencing judge to the authorities that make it clear that representations attributed to an offender in reports such as a psychologist’s or pre-sentence report must be treated with a measure of circumspection, although the sentencing judge concluded that it appeared to him that there was “a measure of subservience” between father and son, and the father was the dominant member of the relationship.

14. [26]

    However, the sentencing judge noted that the applicant participated and took a very active role in a serious criminal offence for which he must be punished (ROS page 21).

15. [27]

    The sentencing judge then dealt with the submissions that had been made about the sentencing statistics. He rejected the submission that a non-parole period of 18 months with a head sentence of 36 months would be sufficient. He discounted the sentences imposed on both the applicant and his father by 12½ percent for the guilty plea each had entered. He rejected a submission that he should somehow take into account the fact that the applicant (and his father) would be excluded from Australia once they completed their custody as the authorities indicate that is not a matter that should be taken into account.

16. [28]

    The sentencing judge found special circumstances in respect of the applicant related to his relative youth, his Korean heritage, that English is not his first language, and that he effectively has no other family in this country, apart from his uncle.

Principles: Parity

1. [29]

   The relevant principles are helpfully set out in Dayment v R [2018] NSWCCA 132 per RA Hulme J at [62]:

2. [30]

   To similar effect is the recent statement in Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 per Hoeben CJ at CL (Johnson and Schmidt JJ agreeing) at [172]–[174]:

3. [31]

   In KR v R [2012] NSWCCA 32, Latham J provided a useful collection of authorities [16]–[19] together with an analysis of the discrimination between criminal responsibility and culpability [20]–[22]:

Ground 1 - submissions

1. [32]

   Counsel for the applicant submitted that there were four main reasons that demonstrate that the sentencing judge took the wrong approach in respect of parity and why the applicant has a justifiable sense of grievance; first, the subjective circumstances of the applicant; second, his clearly subservient role in the offending, third, his age and fourth, his clean record.

2. [33]

   Counsel for the applicant noted that some considerations tell against ground 1; first, the sentencing judge was in a position to consider the interrelationship between the objective and subjective features of the two offenders, second, the broad sentencing discretion involving qualitative judgments being exercised and third, it is evident (ROS pages 20-21) that consideration to the question of parity generally has been given, noting the subservience between father and son.

3. [34]

   Insufficient regard has been given to the subservience of the applicant both in terms of the context of their relationship and his substantially less role in the offending. All forceful acts during the offence - pushing the victim backwards, putting a hand over the victim’s mouth, threatening the victim, pulling her arms behind her back, taping her hands and legs together, placing tape loosely around her mouth and a shopping bag over her head for a short time, asking her where the money was, further threatening her as they left the house and sending threatening text messages in the afternoon, were carried out by the applicant’s father.

4. [35]

   In contrast, the applicant spoke to the victim for about 30 minutes at her home before leaving to meet his father, told his father the victim was home alone, went with his father to commit the offence, approached the front door again after the offence commenced, took a piece of duct tape from a roll he had and handed it to his father, using a code provided by his father went to the bedroom and accessed the safe and took money out of it and then left and waited for his father in the van.

5. [36]

   Given the applicant was only 22 years old at the time, he was entitled to have his relative youth considered as a mitigating factor in sentence, not only in the context of special circumstances: R v Hearne [2001] NSWCCA 37; BP v R [2010] NSWCCA 159 at [3]-[7] per Hodgson JA. He also had no prior criminal convictions, although I interpolate here that his father had minimal convictions and no relevant prior offending.

6. [37]

   Comparatively little was known about the applicant’s father’s personal circumstances. Unlike the applicant, he was not forthcoming in the pre-sentence report. In contrast, the applicant’s psychologist’s report provided a sound basis for his Honour’s finding as to subservience and this reflected their respective roles in the offending. This was fundamental to assessing their respective levels of culpability for the offence.

7. [38]

   There were significant dissimilarities between the applicant and his father and all of them favoured the applicant, but the sentencing judge did not make due allowance for these differences in the relative sentences imposed. More than a marginal reduction was required to adequately reflect those differences and do justice in the case.

8. [39]

   Nowhere in the ROS is parity specifically considered and all of the relevant considerations weighed. There is insufficient disparity as between the relative sentences and so a justifiable sense of grievance or the appearance that justice has not been done in the applicant’s case.

9. [40]

   On the issue of manifest excess, the applicant submitted that whilst the offence was an objectively serious example of an aggravated break, enter and steal, the applicant's culpability and, consequently, the degree of punishment required, was to be assessed against his role in its commission, which was substantially less than his co-offender: R v JW [2010] NSWCCA 49 at [161]; KR v R [2012] NSWCCA 32 at [19]-[20].

10. [41]

    In addition to the objective considerations in respect of the applicant's role in the offence there were a number of (subjective) mitigating factors:

    1. (1)

       His young age at the time of the offence - 22 years and 1 month - and the nature of his relationship with his father, reduced the role that retribution ought to have played in the fixing of his sentence as compared to his father's: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [4] (Hodgson JA):

    2. (2)

       He pleaded guilty and was found to have demonstrated insight, appropriate contrition and remorse;

    3. (3)

       He had no prior criminal convictions and was otherwise a young adult of prior good character;

    4. (4)

       He was assessed as being unlikely to reoffend, found to have strong prospects of rehabilitation with no identifiable criminogenic treatment needs;

    5. (5)

       He also made admissions to the police at the time of his arrest reflecting a degree of co-operation with law enforcement authorities.”

11. [42]

    A great deal of the written submissions were stated to be directed at the second ground – manifest excess – but there was a simultaneous analysis of parity in the examination of the criminality of the acts that the applicant personally performed.

12. [43]

    Emphasis was placed on the principle that once a joint criminal enterprise is carried out, the applicant was responsible for the acts committed by himself and by his father in the course of the offence: KR v R (2012) NSWCCA 32 at [22].

13. [44]

    Culpability may or may not vary between the participants: R v Goundar (2000) 127 A Crim R 33; [2001] NSWCCA 198 per Wood CJ at CL (Powell JA and Sully J agreeing):

14. [45]

    Reference was also made to the remarks of Simpson J (as her Honour then was) in Johnson v R, Moody v R [2010] NSWCCA 124 at [11]:

15. [46]

    It was argued that the applicant and his father were together whilst offending, the applicant had the tape used to tie and gag the victim indicating a state of knowledge of what had to be done and the applicant took the money and papers from the safe. In effect, each depended on the other to commit the offence.

16. [47]

    Given the applicant’s failure to give evidence, the sentencing judge was right to treat with circumspection the applicant’s account of the father being the instigator.

17. [48]

    The sentencing judge took a proper approach to principle by assessing the applicant’s culpability as follows (ROS pages 20-21):

18. [49]

    The Crown distinguished the age of the offender and nature of the offending that Hodgson JA was dealing with in BP at [4], in support of a submission that those remarks should be confined to a very young person (16 years old in that case) and unplanned or impulsive offending.

19. [50]

    In its submissions on parity, the Crown argued that the sentencing judge made a finding favourable to the applicant regarding his subservience to his father, and that his age, maturity and the relationship were all noted by the sentencing judge and so were properly taken into account.

Decision

1. [51]

   Whilst reference was made to the principles of parity and their application, in my view insufficient regard was had to the differentiation of acts carried out by the applicant as opposed to those carried out by his father. There was, in my view, insufficient reflection of this in the very marginal difference in the applicant’s sentence when compared to his father’s.

2. [52]

   Nowhere does the sentencing judge reflect on a comparison of the particular acts of the applicant and the nature of them when considered next to the acts of the father. True it is that the applicant carried out the larceny by removing items from the safe, but this was on the provision of the code from his father after the father had physically subdued and threatened the victim.

3. [53]

   Simply concluding that the applicant “participated and took a very active role in a serious criminal offence” is not sufficient analysis in the circumstances.

4. [54]

   Whilst it is true the applicant did not give evidence, there is no reason to doubt the accuracy of the matters raised in the pre-sentence and psychologist’s reports regarding the applicant’s personal background and family circumstances.

5. [55]

   The agreed facts reflect the clearly subservient role of the applicant in the offending.

6. [56]

   Further, I accept that the subjective factors emphasised by counsel for the applicant at this appeal are significant considerations in assessing the relative levels of culpability. They were not marginal – they were critical matters.

7. [57]

   The very small degree of disparity in the sentences cannot be justified as a proper exercise of the judge’s discretion and ground 1 has been established.

8. [58]

   Consequently, I do not need to determine ground 2.

Re-sentence

1. [59]

   It then remains to re-exercise the sentencing discretion. No additional evidence was adduced on appeal and so resentencing is to be considered having regards to the material that was before the sentencing judge.

2. [60]

   I accept the applicant’s submissions as to his role in the offending as set out in [4] of this judgment. I take into account the subjective matters set out in ROS pages 18-21.

3. [61]

   I adopt the finding by the sentencing judge that the applicant participated in the crime “not under any duress or threat but by reason of his status as the son compliant with his father’s purpose”.

4. [62]

   I conclude however that the applicant’s status as “the son compliant with his father’s purpose” is a loaded conclusion here given the parlous living circumstances of the applicant set out in the pre-sentence and psychologist’s reports. Whilst not duress or threat, there clearly was a level of control that the father exerted over his son. His culpability for the offending should be assessed in light of that relationship.

5. [63]

   In the pre-sentence report, under the heading “attitude to offending” the following is said:

6. [64]

   Further, in that same report under the heading “assessment” it states:

   1. (1)

      In the psychologist report the conclusion included this observation:

7. [65]

   I am of the view that the statement of Hodgson JA in BP is apposite in addressing the role of retribution in sentencing the applicant. In my view, despite the applicant being aged 22 at the time of the offending, there is a pervasive element of emotional immaturity as a result of his personal circumstances that is relevant to his culpability in a mitigatory way.

8. [66]

   As found by the sentencing judge, the applicant admitted to the offending and he has shown remorse, contrition and has good prospects of rehabilitation.

9. [67]

   I adopt the approach of the sentencing judge to the other offending which I note also occurred in concert with his father, and I note and adopt the sentencing judge’s conclusion that this other offending illustrated desperation for money.

10. [68]

    I adopt the sentencing judge’s reduction of the sentence by 12½ percent to reflect the guilty plea.

11. [69]

    I adopt the sentencing judge’s findings as to special circumstances set out by him at ROS page 23.

12. [70]

    I propose a non-parole period of 3 years commencing 3 December 2017 and expiring 2 December 2020 and a further period of imprisonment of 2 years to commence at the expiration of the non-parole period and that will expire on 2 December 2022.

13. [71]

    The orders I propose are: