KIM v POLICE [2016] NZHC 3189

KIM v POLICE [2016] NZHC 3189 [21 December 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-424[2016] NZHC 3189BETWEEN SUK CHAN PAUL KIMAppellantAND NEW ZEALAND POLICERespondentHearing: 21 December 2016Appearances: H Kim for AppellantH G Clark for RespondentJudgment: 21 December 2016JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 21 December 2016 at 4.30 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Meredith Connell, Crown Solicitor, AucklandCounsel: H Kim, Auckland[1] The appellant, Mr Kim appeals against a sentence of three months'imprisonment imposed by Judge E M Thomas in the District Court at Auckland on 12 December 2016.1 The sentence was imposed on a single charge of assault with intent to injure, to which Mr Kim pleaded guilty at an early stage.2[2] I must allow Mr Kim's appeal if satisfied that:3(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[3] An appeal against sentence is an appeal against the exercise of discretion.Accordingly, there is no basis for varying the sentence if the end sentence (3 months'imprisonment) is within the range justified by accepted sentencing principles.4[4] Mr Kim submits that the sentence imposed was manifestly excessive, and that the Judge failed to give adequate consideration to the imposition of a sentence of home detention.Background[5] Early in the morning of 16 April 2016, Mr Kim was at a nightclub in the Auckland CBD. The victim was talking to Mr Kim's girlfriend. Mr Kim approached the victim, was verbally abusive, and told the victim to leave the club. Mr Kim followed the victim outside and walked with him towards Albert Park. Then, with full force and a closed fist, Mr Kim punched the victim on the right side of his face. Both then sat down on the grass of Albert Park. Soon after, and without warning, Mr Kim stood up and kicked the victim to the back of the head. The kick was delivered with force and left the victim dazed and in pain.1 Police v Kim [2016] NZDC 25405.2 Crimes Act 1961, s 193; maximum penalty three years' imprisonment.3 Criminal Procedure Act 2011, s 250(2).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.[6] The victim has suffered physically and psychologically since. He suffered three fractures to his face, which required surgery and he has ongoing issues with his right eye. He has also had to abandon his study and work, at least for the moment. He has been criticised by members of the Korean community for pursuing this matter and has withdrawn from that community accordingly.District Court judgment[7] The Judge referred to Mr Kim's prior conviction in 2013 for assault with intent to injure (committed at the end of 2012), for which Mr Kim had been sentenced to community work and supervision. The Judge also noted that Mr Kim had received another sentence of supervision following drink-driving related offending in 2012. In all this is Mr Kim's fifth conviction and second for assaultwith intent to injure.[8] The Judge considered the previous sentences imposed in light of the type of sentence appropriate for the current offending:[5] The pre-sentence report recommends intensive supervision. I am afraid I just cannot see how that is going to help. We have had two sentences of supervision that have failed. Those are resources that need to go to people who are going to work a little harder to make the most of these sorts of opportunities. I struggle to see how anything short of a term of imprisonment is the least restrictive outcome. You are a repeat violent offender who has not taken the opportunities we have tried to give you to make better decisions when you are drinking.[9] The Judge adopted a starting point of six months' imprisonment. From that,the Judge gave a global discount of 50 per cent for Mr Kim's youth (generous given that Mr Kim was 23 or 24 at the time of the offending), prompt guilty plea, offer to make reparation and genuine remorse. This resulted in a final sentence of threemonths' imprisonment. The Judge also ordered Mr Kim to pay $1,000 reparation in respect of the emotional harm he had caused the victim.[10] The Judge also imposed special release conditions, including that Mr Kim attend and complete any appropriate alcohol and drug counselling recommended by Community Probation.Corrections report[11] The Corrections report recommended either a sentence of intensive supervision or community work.[12] As for community or home detention, the report said that Mr Kim's parents' address in Murray's Bay might be suitable. However, the report said that Mr Kim'sparents were frequently away in South Korea, and their consent had not been obtained. I understand from counsel today that consent would be given if homedetention at the parents' address were a possibility.Discussion[13] I am not persuaded that the Judge erred in imposing the length and type of sentence that he did.[14] As to the length of sentence, Mr Kim's offending was serious and gratuitous. The victim had left the nightclub. Mr Kim's punch was entirely unnecessary and his kick to the victim's head was dangerous. Not only was the victim on the ground atthe time, he would not have expected the kick to his head. I have described theconsequences of the offending for the victim. The Judge's starting point of sixmonths was generous to Mr Kim.[15] Counsel for Mr Kim, Ms Kim, referred me to two cases, although with respect both reinforce my view that the Judge's six-month starting point was lenient. In Tamihana v R the appellant and an associate became involved in a fight with the victim outside a bar. 5 The appellant punched the victim in the face with a closed fist, causing him to fall to the ground. The associate kicked the victim in the head, and then the appellant ran up and did the same. The victim suffered bruising and grazing to his face. The Court of Appeal identified three aggravating factors in terms of Nuku v R, being the attacks to the head, acting in concert with another and the fact that the victim was on the ground and so vulnerable.6 The Court adopted a startingpoint of 12 months' imprisonment.5 Tamihana v R [2015] NZCA 269.6 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.[16] Although Tamihana involved an additional aggravating factor to Mr Kim'soffending, the injuries suffered by Mr Kim's victim were more serious.[17] Merrill v Police involved two instances of assault with intent to injure, thefirst of which is most analogous to Mr Kim's case.7 The appellant entered a hotel carrying a bottle of beer. She poured the beer over the bar manager's head and hitthe manager in the chest. She then hit the manager in the head with the empty bottle.One of the appellant's associates approached the manager from behind, grabbed herhair, forcing her to the ground, at which point the appellant kicked the manager in the legs. The victim received a lump to her head, a cut to her nose, and slight bruising to her face.[18] On appeal Muir J identified four aggravating factors, being the use of a weapon (bottle), the attack with others, the assault to the head and the second assault while the victim was vulnerable. Muir J considered the correct starting point was 13 months' imprisonment. That offending involved additional aggravating factors tothe offending in this case, hence the higher starting point adopted.[19] I am not persuaded these cases assist Mr Kim on the starting point which as I say might well have been higher.[20] As to the nature of the sentence, Ms Kim submits that the Judge failed to give sufficient weight to certain principles or purposes of sentencing and, in particular, the requirement to impose the least restrictive sentence appropriate in the circumstances, and to assist in an offender's rehabilitation and reintegration.8[21] The gist of this ground of appeal is that the Judge failed to give sufficient consideration to a sentence of community or home detention and that, had he done so, he would have imposed a sentence of home detention at most. Mr Kim has not previously received a custodial sentence, has complied fully with all conditions of his earlier sentences; participated fully in a restorative justice conference and had7 Merrill v Police [2016] NZHC 2140.8 Sentencing Act 2002, ss 7(1)(h) and 8(g).undertaken programmes voluntarily including a CADS assessment and severalsessions of a "Taking Action" behaviour change programme.[22] I accept Ms Kim's submission that, having reached an end sentence of three months' imprisonment, the Judge was required to consider whether a less restrictivesentence than imprisonment should be imposed, whether by way of supervision, community or home detention.9 As Crown counsel submitted, however, from the passage quoted at [8] above, it is clear that the Judge decided that a sentence of imprisonment was the least restrictive outcome appropriate in Mr Kim's case giventhe nature and effects of his offending; his prior conviction for assault; his failure to learn from community-based sentences and the clear need for deterrence.[23] In those circumstances, I am not satisfied that the Judge erred in deciding that a sentence of imprisonment was required to meet the relevant purposes and principles of the Sentencing Act 2002.Conclusion[24] For the reasons above, I dismiss the appeal. I thank both counsel for their excellent submissions and in particular record that Ms Kim could not have said more in support of the appeal...................................................................Peters J9 Section 15A.