R v Kim [2020] NSWDC 589

R v Kim [2020] NSWDC 589

Although the attempted sexual intercourse without consent fell in the lower range of objective seriousness, the offending involved violence, was terrifying to the victim, and ended only because of her determined resistance, so full-time imprisonment was required for denunciation and deterrence. The offender's lack of prior convictions, remorse, low risk of reoffending, good rehabilitation prospects, early pleas to two charges, judge-alone election and agreed facts warranted discounts and special circumstances, but an aggregate custodial sentence was necessary to reflect total criminality.

Jurisdiction
Australia
Judgment Date
17 September 2020
Procedural Posture
Criminal Sentencing / Sentence After Conviction for Attempting Sexual Intercourse Without Consent and Guilty Pleas to Sexual Touching and Common Assault
Outcome
Aggregate sentence of full-time imprisonment imposed.
Legal Topics
['attempt to Have Sexual Intercourse Without Consent' 'sexual Touching' 'common Assault' 'judge Alone Trial Discount' 'early Guilty Plea Discount' 'aggregate Sentence' 'non Parole Period' 'special Circumstances']
['criminal Law' 'sentencing'] ['attempt to Have Sexual Intercourse Without Consent' 'sexual Touching' 'common Assault' 'judge Alone Trial Discount' 'early Guilty Plea Discount' 'aggregate Sentence' 'non Parole Period' 'special Circumstances']

Case Brief

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Procedural Posture

Criminal Sentencing / Sentence After Conviction for Attempting Sexual Intercourse Without Consent and Guilty Pleas to Sexual Touching and Common Assault

Legal Issues

  1. 1 ['What sentence should be imposed for attempting sexual intercourse without consent contrary to s61I of the Crimes Act 1900, sexual touching contrary to s61KC, and common assault contrary to s61.' 'Whether discounts should be allowed for early guilty pleas, election for trial by judge alone, and disclosure by agreed facts.' 'Whether an aggregate sentence of full-time imprisonment was appropriate.' 'Whether special circumstances justified reducing the non-parole period.']

Ratio Decidendi

Although the attempted sexual intercourse without consent fell in the lower range of objective seriousness, the offending involved violence, was terrifying to the victim, and ended only because of her determined resistance, so full-time imprisonment was required for denunciation and deterrence. The offender's lack of prior convictions, remorse, low risk of reoffending, good rehabilitation prospects, early pleas to two charges, judge-alone election and agreed facts warranted discounts and special circumstances, but an aggregate custodial sentence was necessary to reflect total criminality.

Court Disposition

Aggregate sentence of full-time imprisonment imposed.

Orders

  • ['The offender is sentenced to an aggregate term of imprisonment of two years and 10 months commencing on 24 July 2019.' 'A non-parole period of 1 year and 8 months is fixed, expiring on 23 March 2021, from which date the offender is eligible to be considered for release on parole.']