Ha v R - [2010] NSWCCA 83

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Ha v Regina [2010] NSWCCA 83

FILE NUMBER(S):
2007/15772

HEARING DATE(S):
7 April 2010

JUDGMENT DATE:
5 May 2010

PARTIES:
Ji Won Ha (Appellant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Howie J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/11/0666

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
22 August 2008, 30 January 2009

COUNSEL:
C Nash; D Kang (Appellant)
M Cinque (Respondent)

SOLICITORS:
Ford Criminal Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – offences against the person – kidnapping – aggravated offence
CRIMINAL LAW – appeal and new trial – verdict unreasonable or insupportable having regard to evidence – appeal dismissed
CRIMINAL LAW – appeal against sentence – grounds for interference – special circumstances – parity between co-offenders – sentence manifestly excessive – effect of sentence and imprisonment on prisoner – appeal dismissed

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Clarke v R [2009] NSWCCA 49
Lowe v The Queen [1984] HCA 46; 154 CLR 606
M v R [1994] HCA 63; 181 CLR 487
MFA v R [2002] HCA 53; 213 CLR 606
Postiglione v The Queen [1997] HCA 26; 189 CLR 295

TEXTS CITED:

DECISION:
1. Appeal against conviction dismissed;
2. Leave to appeal against sentence granted;
3. Appeal against sentence dismissed.

JUDGMENT:

- 24 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/15772
BEAZLEY JA
HOWIE J
HISLOP J
5 May 2010

Ji Won HA v REGINA

Judgment

BEAZLEY JA: On 22 August 2008, the appellant was found guilty by a jury of the offence of aggravated kidnapping contrary to the Crimes Act 1900, s 86(2). The maximum penalty for the offence is a term of imprisonment of 20 years. The particulars of the charge were that on 1 March 2007 in Sydney, whilst in the company of Jong Chon Nam and a person or persons unknown, the appellant detained Neil Woodward without his consent and with the intention of obtaining an advantage, namely, to obtain money.
The appellant and Mr Nam were tried together. Mr Nam was also found guilty. The trial judge, King DCJ, imposed a sentence of 3 years 4 months, with a non-parole period of 2 years 6 months, on the appellant and Mr Nam.
The appellant appeals against conviction and seeks leave to appeal against sentence upon the following grounds:
Appeal against conviction:
(1)          That the verdict of guilty is unreasonable;
Appeal against sentence:
(1)          The learned judge erred in failing to find special circumstances;
(2)The learned judge erred by failing to give proper consideration to the issue of parity;
(3)The learned judge erred by finding that the objective seriousness of the offence was at mid-range;
(4)          The sentence was manifestly excessive.
Background facts
The trial proceeded on the basis of a statement of agreed facts as well as contested evidence, including evidence given by each of the appellant and Mr Nam. The case against the appellant involved both direct and circumstantial evidence and the essential contest was whether he was involved in the crime. The appellant’s case was that he was an unknowing participant and that he was not associated with any criminality connected with Mr Woodward coming to the appellant’s flat and in accompanying Mr Woodward to the bank, where Mr Woodward transferred funds from his bank account into the appellant’s bank account.
The uncontested facts at trial were that Mr Woodward and Mr Nam had been in a relationship for about five years until 2005. At the time of their separation, Mr Nam owed Mr Woodward the sum of $20,000, being the balance of a loan of about $35,000 that Mr Woodward had advanced to Mr Nam to assist in the purchase of a hairdressing business.
In about mid-February 2007, Mr Nam sent an email to Mr Woodward, advising him that he proposed to pay back the balance of the moneys he owed. Arrangements were made for Mr Woodward to go to the apartment that Mr Nam jointly occupied with the appellant, on 19 February 2007.
Shortly prior to that, on 7 February 2007, a judgment had been entered against the appellant in the Local Court of New South Wales on behalf of the Owners of the Strata Plan of the appellant’s apartment block. Judgment was in the sum of $26,378.51 for unpaid strata levies on the appellant’s unit.
When Mr Woodward went to the appellant’s apartment on 19 February 2007, Mr Nam introduced him to the appellant. Mr Nam and Mr Woodward then had a conversation to which the appellant was not a party. The appellant said that he went out onto the balcony and did not overhear the conversation between Mr Woodward and Mr Nam. Mr Woodward said that the appellant went into the kitchen. In the conversation, Mr Nam told Mr Woodward that the appellant was in debt “to the strata” for $20,000. He showed him a piece of paper that appeared to confirm that fact. Mr Nam asked Mr Woodward to lend him $20,000, a request which Mr Woodward rejected. He finally agreed to lend him $800. Mr Woodward gave the following evidence in respect of Mr Nam’s request for money:
“Q.         Did Mr Nam then ask you something? …
A.           He then asked whether I could lend him the $20,000 to pay off the body corporate fee and I replied that I can’t afford to lend him that amount of money.
Q.           Did he then ask you whether you could afford to lend him something else?
A.           Well he then said ‘Well what about $2,000?’ and I said ‘Well no, I can’t lend you $2,000’ and then he said ‘Well what about a thousand?’ and I said ‘No, I can’t lend you a thousand’ and then he said ‘What about 800?’ and he begged me for the eight hundred and he said, ‘Look, you can have my passport as a security with it because I just need to pay this amount’.”
Having agreed to lend Mr Nam $800, the two men then drove to Star City Casino, where Mr Woodward withdrew $800 from an ATM and gave it to Mr Nam. Mr Nam gave him his passport as security. Mr Woodward said that Mr Nam confirmed to him that he owed him $20,000 plus the $800 and that he would pay him back.
Mr Woodward said that Mr Nam rang him later that evening and said, “Maybe I didn’t explain correctly how I was going to pay the money back to you”. He requested a meeting in Hyde Park the next day, to which Mr Woodward agreed. When they met, Mr Nam asked for Mr Woodward’s credit card number and PIN. Mr Nam told Mr Woodward that he would put $60,000 from the company that Mr Nam was working for onto the credit card and that Mr Woodward was to pay $40,000 back to Mr Nam out of that money. In that way, the $20,000 debt that Mr Nam owed Mr Woodward would be satisfied.
Mr Woodward said that he thought this was a highly suspicious arrangement and that he asked for time to think about it. He rang Mr Nam the following morning and said that he was not interested in that arrangement. He said that Mr Nam became “very abusive” over the phone. Mr Woodward said he then asked for Mr Nam’s address so he could return his passport. Mr Nam did not provide his address at that stage.
Between 24 February and 2 March 2007, Mr Woodward received 21 text messages from Mr Nam. Mr Woodward saved the messages and later printed them out on his computer. In one text message, sent on 26 February, Mr Nam provided an address in Kent Street. An earlier text message on the same day read, “I believe that holding the someone ID, that’s criminal”. Mr Nam also sent a text to Mr Woodward saying that he had hurt his leg and had to go to hospital.
On 27 February 2007, Mr Nam sent a text message saying that he still had not received his passport. Fourteen minutes later, he sent a another text, which read:
“No response! Now i have to report to police i dont want but have to now”
On 28 February, there was another text message from Mr Nam to Mr Woodward, which read:
“Im leaving now heading to hospital and i gave him 800$ to give to u when u gana pick up coz he will b in korea soon pls let me know”
There were other text messages. I do not propose to set them all out. However, one read:
“Call me asap jin here big trouble pls not for me for u”
and another read:
“Give me u r account number i will send money”
(The evidence of the dates and times of these messages is somewhat confusing.)
In the meantime, on 26 February 2007, the body corporate had caused a bankruptcy notice to be issued to the appellant, giving him 21 days with which to comply, in respect of the judgment debt owed to the body corporate. The appellant denied that he ever received the bankruptcy notice.
The result of the various text messages sent between Mr Woodward and Mr Nam was that an arrangement was made for Mr Woodward to go to the Kent Street address on 1 March at 11:30 am to discuss the repayment of the $20,000. At this time, Mr Woodward believed that Mr Nam was in hospital.
The Vodafone records of a telephone registered to the appellant revealed that on 1 March 2007, a telephone call was made to Mr Woodward and three text messages were sent to him, between just before 9 am and approximately 9:25 am. The appellant said that he did not telephone Mr Woodward on the morning of 1 March, or send him text messages.
The Optus records relating to Mr Woodward’s mobile account revealed that he made seven telephone calls to the appellant’s phone between 10:07 am and 12:13 pm. Mr Woodward said that he made the various telephone calls to the appellant to tell him that he was running late.
Mr Woodward arrived at the apartment block some time before 12:20 pm and was met outside by the appellant. The appellant was holding a shoe box and carrying a bag and said to Mr Woodward, “Jim wanted you to hold these”. ‘Jim’ was the name by which Mr Woodward knew Mr Nam. The appellant then went to the convenience store next door and bought a bottle of Coke. Whilst waiting for the appellant, Mr Woodward looked in the bag and saw some Asian bowls. There were also Asian bowls in the shoebox. The appellant returned to the apartment block and he and Mr Woodward travelled up in the lift together to the appellant’s apartment. In a conversation in the lift, Mr Woodward asked where Mr Nam was and was told he was “still in hospital” and the appellant did not know for how long. When they entered the apartment, Mr Woodward immediately went to the bathroom. When he came out of the bathroom, the appellant was not to be seen.
Mr Woodward said that a “large Middle Eastern man” then emerged out of the bedroom, which he said he believed was the appellant’s bedroom. The large Middle Eastern man stood in front of Mr Woodward and told him to sit down on the sofa. Mr Woodward said that the large Middle Eastern man spoke loudly and aggressively and that he felt fearful and had a “sense of dread” because of the way the man spoke. Mr Woodward said he did not believe he had a choice other than to do what he was told. He said he did not see the appellant or Mr Nam at this point. After Mr Woodward sat down, Mr Nam came out of what Mr Woodward believed was the appellant’s bedroom. Mr Woodward said that Mr Nam “rushed towards” him and started hitting him “around the head … with an open hand”. He started hitting the “top part” of Mr Woodward’s body and then started to “knee kick” him about half a dozen times.
Mr Woodward said that Mr Nam was yelling, but that he didn’t know what he was saying. He said he protected himself because he had had a gallbladder operation two weeks previously and still had stitches in place. Mr Woodward said that the large Middle Eastern man then pulled Mr Nam off him. Mr Woodward attempted to walk towards the door, but the large Middle Eastern man “grabbed” him by the wrist and told him to sit down. The Middle Eastern man said, “You owe him money”. Mr Woodward responded that Mr Nam owed him money, to which the large Middle Eastern man said, “Give him the money or I’ll deal with you and you won’t want that”. Mr Nam said:
“We know where you live, we were this close to getting hold of your bank account details … They wanted to kill you but I said no …”
Mr Woodward said that the large Middle Eastern man continued to use an aggressive tone and that he was “terrified” when Mr Nam said “they wanted to kill you”. Mr Nam told Mr Woodward to “Transfer $50,000 over on the internet”. Mr Woodward said that Mr Nam rushed into the appellant’s bedroom and he “started to hear tapping on a computer keyboard”. He said that he began to think that he may be safer if he persuaded them to go to the bank with him to effect the transfer. Mr Woodward also said that he did not see the appellant whilst the large Middle Eastern man and Mr Nam were speaking to him.
The appellant agreed in his evidence that he had met Mr Woodward and that he had gone to the convenience store to buy a drink (he also said a newspaper) and that they then went up to the apartment. He denied telling Mr Woodward at any time that Mr Nam was in hospital. He said that he went into the kitchen and that Mr Nam came out of a room into the living room. The appellant said that Mr Nam approached him and told him that there was a “fairly personal matter to be talked about” and requested that the appellant go into his room, which he did. He said a William Jin was in his room, playing with the appellant’s computer. The appellant said he could hear Mr Nam and the appellant speaking. He could not hear what was being said, but occasionally a voice was “a little raised”.
After a time, the appellant said that Mr Nam knocked on his door and asked him to come out. Mr Nam then told the appellant he had some money to receive from Mr Woodward and requested the appellant to go to the bank with Mr Woodward and receive some money into the appellant’s account. He said that Mr Nam had an account, but it was in joint names and it was for that reason that Mr Nam asked the appellant to receive the money into his account. The appellant said he did not see anyone else in the apartment at this time. The appellant said that he requested Mr Nam to go to the bank with them, but that Mr Nam said he was not feeling well and asked him to go and manage the matter. The appellant said that he and Mr Woodward went down in the lift together, that no one else was in the lift at the time, nor did anyone come into the lift, and that he and Mr Woodward walked together to the Commonwealth Bank at the corner of Clarence and King Streets.
Mr Woodward’s evidence as to leaving the apartment and going to the bank was as follows. He said that he, the appellant and the large Middle Eastern man who had been in the apartment, went to the lift and travelled down to the lobby together. They then walked to the Commonwealth Bank on the corner of Clarence and King Streets. Mr Woodward said that as he, the appellant and the large Middle Eastern man were walking along Kent Street towards King Street, he observed a “smaller” “Middle Eastern man” across the road, to whom the large Middle Eastern man was signalling. He said the smaller man crossed the road and had a conversation with the large Middle Eastern man. Mr Woodward said that he and the appellant continued walking to the bank and that the two Middle Eastern men remained behind them. He said that at one stage, the large Middle Eastern man leant over Mr Woodward’s shoulder and said, “We’ll be watching you”.
Mr Woodward said that the appellant went into the bank with Mr Woodward and stood next to him at the counter, whilst a bank officer, Erin Neill, effected the transfer of $50,000 to the appellant’s Commonwealth Bank account, at 13:00:08 pm. The deposit into the appellant’s account resulted in a balance in his account of $50,002.50. The appellant and Mr Woodward left the bank and turned right into King Street. As they were walking down the hill towards Kent Street, Mr Woodward said that he could not see either of the two Middle Eastern men. He then said to the appellant, “Look you’ve got your money”, “pushed” the receipt at him and said “That’s what you wanted”. Mr Woodward said he then “ran down the hill” to his car where it was parked in King Street.
Mr Woodward said that when he had driven back up to the top of King Street, his mobile phone rang. He recognised the appellant’s voice saying, “Hello”. Another voice, which he recognised as that of the large Middle Eastern man, said, “Where’s the money?”. Mr Woodward told him, “It’s there, you’ve got it, you’ve got it”. The person responded, “Right, don’t go to the police”. The Vodafone records of the appellant’s telephone account showed that a 43 second voice call was made from the appellant’s mobile phone to Mr Woodward’s phone at 1:09 pm.
Mr Woodward and the appellant were shown on CCTV footage, dated 1 March 2007 and timed at 12:35:37 pm, as they were about to leave the foyer of the apartment building. The large Middle Eastern man was also seen on the CCTV footage in the foyer, exiting the lift, at 12:36:19 pm. CCTV footage at about 1:09 pm showed the appellant walking along the footpath outside the apartment building together with the large Middle Eastern man.
Mr Woodward had an arrangement to meet a friend for lunch at Castle Hill that day. He said he “wanted to get out of the city”, so he drove to Castle Hill, where he met his friend at the Westfield Shopping Centre. Together, they went to the Commonwealth Bank in the Westfield Shopping Centre and reported what had happened. On the advice of a bank officer, Mr Woodward transferred the balance out of his account, which was in credit in the sum of $165,602,89. He went to the police later on the same day.
The Commonwealth Bank also took action to freeze the appellant’s Commonwealth Bank account. However, that action did not take effect until late on 1 March 2007. Before then, the appellant had withdrawn two cash amounts, one of $4,000 and one of $10,000 at different branches of the Commonwealth Bank, including one withdrawal from the King and Clarence Street branch. The appellant tried to make a further withdrawal, but was not able to do so, as the account had been frozen by that time.
The following day, 2 March 2007, at about 11.30 am, the appellant and Mr Nam went to the King and Clarence Street branch of the Commonwealth Bank to ascertain what had happened to his account. Ms Neill told them the account had been frozen and asked the appellant to complete a statutory declaration setting out the reasons for the transfer of the $50,000 from Mr Woodward to the appellant. The appellant completed a statutory declaration, but did not sign it. The statutory declaration is in broken English, but appears to say that Mr Nam owed the appellant money and that Mr Woodward provided the money to the appellant on behalf of Mr Nam by depositing it into his account the previous afternoon. He also left his passport at the bank. The Crown argued at trial that the appellant had left his passport behind in haste to get away from the bank.
The appellant returned to the bank sometime later that day, having received a telephone call from the bank officer, Ms Neill, informing him that he had not signed the statutory declaration and had left his passport at the bank.
Ms Neill gave evidence. She said that she was suspicious about the transfer of the moneys because of the way that Mr Woodward was acting when he was at the counter seeking to transfer the money. She also observed that the appellant, although standing beside him, was not talking with Mr Woodward and that it did not appear that they were friends. She said that Mr Woodward was rushing her and she did not “feel comfortable with it”. She said that because of her concerns, she suggested to Mr Woodward that he might like to transfer a lower amount, of $10,000, but he had refused her suggestion. The appellant asked her whether the funds being transferred could be used straight away. She updated the appellant’s PIN number, whilst Mr Woodward “was pacing back and forth”. Ms Neill said the appellant wanted to ask her some questions about credit cards, but Mr Woodward became “agitated” and asked if the appellant could do that later.

Ms Neill said she noticed that the appellant and “another Asian male” were at the branch the following day. She was aware that the appellant’s account had been stopped and that it was necessary to notify security if anyone sought to operate the account. She did so and was informed by security that there was suspicion around the transfer of the funds the previous day and that a statutory declaration was required from the appellant. Ms Neill said the other Asian man was “quite irate” when she asked the appellant to fill out a statutory declaration explaining his relationship with Mr Woodward and told her it was none of her business. She asked him to “move away”.
Ms Neill observed the appellant returned to the bank about an hour later, after she had telephoned him about signing the statutory declaration and about his passport. He was again in the company of the same Asian man. The appellant signed the declaration, Ms Neill witnessed it and she returned his passport. She took a photograph of the appellant as he was walking away, using a still frame security camera. She then made a diary note in respect of the transaction. She said she had taken the photograph of the appellant because she was suspicious about the transaction.
The appellant gave evidence. In essence, his account of the circumstances was that Mr Nam owed him money and told him that he had some money to receive from Mr Woodward. Mr Nam asked the appellant to accompany Mr Woodward to the bank. The appellant denied detaining Mr Woodward in any way and said that it was his understanding that Mr Woodward was transferring the money to him willingly. He explained the use of his account rather than the money being paid into Mr Nam’s account on the basis that Mr Nam did not want the moneys transferred into a joint account Mr Nam had with another person. The appellant denied knowing the man shown in the CCTV footage as he walked down King Street from the bank and said:
“… this person was either tourist or a person who moved into one of the apartments recently or something rather and he was asking me where he can buy the kitchen utensils.”
The appellant also denied that the telephone call recorded on his mobile phone as being made to Mr Woodward’s phone on the morning of 1 March 2007 involved him in any way. Likewise, he also denied that he personally received any calls from Mr Woodward on his phone. He said that Mr Nam received or made the calls, as he and Mr Nam regularly used the other’s phone when they did not have credit. This evidence was subject to cross-examination which indicated that on the same day, Mr Nam’s telephone was being used constantly. The appellant indicated that Mr Nam had credit on his phone throughout that day.
The appellant accepted that he probably telephoned Mr Woodward at 1:09 pm on 1 March, just after they had left the bank. He said:
“I don’t recall exactly, but I somehow think I may have rung him.”
When asked whether he remembered what he had phoned Mr Woodward about, the appellant said:
“As I said before, he appeared to be very anxious and so perhaps I rang him to say to drive carefully.”
The appellant was cross-examined about the two sums of money he had withdrawn from the bank on 1 March. In particular, the Crown cross-examined the appellant to suggest he paid $10,000 to the large Middle Eastern man who was in the apartment, because “he was the boss” and that the appellant paid two lots of $2,000 to other persons who were the large Middle Eastern man’s “assistants”. These two persons were referred to in the case as “Mr Light Shorts” and “Ms Pigtails”. It was the Crown case that Mr Light Shorts was the smaller Middle Eastern man that Mr Woodward observed the larger Middle Eastern man signalling to in Kent Street.
The appellant denied that that was the case. He asserted that he forwarded $10,000 to Korea on 1 March. He said he had done so by placing that amount into a Korean bank account. He also said that the Commonwealth Bank account into which the $50,000 had been transferred wasn’t his “usual account”. His usual account was the Korean bank account.
The appellant was cross-examined as to why he had withdrawn the money in cash, if it was his intention to transfer it into his Korean bank account. The appellant explained that there were no Korean bank branches in Sydney, so that if he had got it by cheque “or something like that”, it would have taken longer. However, if he had cash, there was a Korean agent who could transfer the money. The appellant explained that the $10,000 that he had paid into his Korean account had been withdrawn by way of an automatic periodic payment for a mortgage. The appellant gave the name of the bank as the Woori Bank, a bank in Seoul. The appellant said that he gave the $4,000 to Mr Nam.
As I have said, the appellant was tried with Mr Nam. It was Mr Nam’s case that although he believed Mr Woodward owed him money, he knew nothing of any arrangement between the appellant and Mr Woodward to transfer moneys into the appellant’s account. Mr Nam also denied there were any Middle Eastern men in the apartment when Mr Woodward attended there on 1 March. Mr Nam agreed he had had an argument with the appellant in the apartment, but thereafter, he returned to his bedroom and did not see him again. He said that the first he knew of the transfer of the $50,000 was when the appellant rang him, between 12 and 1 pm on 1 March 2007, and told him “in an excited voice” that Mr Woodward had given him $50,000.
The conviction appeal: that the verdict was unreasonable
The appellant contended that the Crown case against him was “very circumstantial”. By contrast, there was a strong Crown case against Mr Nam. The appellant submitted that having regard to all of the evidence it was not open to the jury to be satisfied of his guilt, for the following reasons.
First, the appellant contended that the Crown was unable to eliminate a reasonable possibility that the appellant had accompanied and received the money from Mr Woodward with his consent, having regard to the fact that, even on Mr Woodward’s evidence, at no stage did the appellant threaten him or use physical force. Nor was the appellant present when Mr Nam physically assaulted him, or when Mr Nam demanded the transfer of the money. Mr Woodward only saw the appellant in the apartment, having been accompanied by him to the apartment, when Mr Nam called for the appellant’s assistance. The appellant also relied upon the fact that his level of English skills and comprehension were relatively poor and he relied upon Mr Nam to conduct business transactions.
Secondly, the appellant submitted that Mr Woodward did not suffer any observable injuries. In this regard, the appellant relied upon the fact that Mr Woodward gave a number of statements to police, the first being at about 5 pm on 1 March 2007, some five hours after he had been hit by Mr Nam. Neither of the police officers who took the statements observed any marks on Mr Woodward. As I understand it, this submission was directed to undermining the veracity of Mr Woodward’s evidence.
Thirdly, the appellant submitted that if the jury had any doubt about the large Middle Eastern man being in the apartment, then the appellant’s case, that he was an innocent dupe of Mr Nam, had some force. In support of this submission, the appellant contended that the Crown’s reliance upon the CCTV footage of a Middle Eastern man leaving the apartment building, at about the same time as Mr Woodward and the appellant, was flawed in a number of respects. First, the large Middle Eastern man was sighted 42 seconds after the appellant and Mr Woodward appeared on the CCTV footage leaving the apartment building. If Mr Woodward’s evidence that they had come down in the same elevator, that the Middle Eastern man had positioned himself behind him and that they had all walked out of the elevator together, was correct, then the lapse of 42 seconds on the footage was inexplicable and cast doubt upon any involvement of that person in the incident in the flat and the transfer of the money.
The appellant also relied upon the fact that Mr Woodward failed to give a description of this person. It was submitted that this was of significance, as the man was wearing shorts, a hat and a shirt with distinctive white markings on it, none of which he mentioned in his statements to the police. The appellant relied upon Detective Huisman’s evidence that in one of the CCTV stills, the male person wearing a hat and shorts appeared closest to elevator number 3, whereas a CCTV still of the appellant and Mr Woodward had shown them closest to elevator number 2. The appellant submitted that this threw doubt upon a Middle Eastern man being an accomplice in the offence.
Fourthly, the appellant submitted that the evidence was incapable of establishing that the appellant had any association with another man in light shorts, or a woman with pigtails, who were recorded on the CCTV footage in the foyer as Mr Woodward and the appellant were leaving the apartment building to go to the bank. In this regard, despite viewing about 11 hours of CCTV footage taken in and around the apartment building, as Detective Huisman did, the footage did not show any person who matched the description given by Mr Woodward of a second Middle Eastern man. As I explain below, this submission does not accord with the evidence. The appellant also submitted that there was no CCTV footage of the area in and around the Commonwealth Bank on the corner of King and Clarence Street in which any person of Middle Eastern appearance was shown. Whilst this is correct, there was CCTV footage of the appellant with the large Middle Eastern man walking down King Street.
The test to be applied by an appellate court in deciding whether a verdict of guilt is unreasonable was stated by the High Court in M v R [1994] HCA 63; 181 CLR 487. The High Court reiterated the test in MFA v R [2002] HCA 53; 213 CLR 606 where McHugh, Gummow and Kirby JJ said, at 623 [56]:
“The majority in M pointed out that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’” (citations omitted)
In my opinion, the appellant has not established that the verdict was unreasonable. This was a strong Crown case against both the appellant and Mr Nam. In cross-examination, the appellant agreed that Mr Nam owed him a substantial sum of money, well in excess of $17,000. The appellant and Mr Nam were both in the apartment when Mr Woodward went there, believing that he was going to be repaid the $800 he had lent Mr Nam some days earlier. The appellant accompanied Mr Woodward to the bank and stood beside him while he arranged for the transfer of the money. The CCTV footage showed the person whom Mr Woodward identified as the large Middle Eastern man, walking through the foyer of the apartment building at the same time as Mr Woodward and the appellant were walking through the foyer on the way to the bank. The CCTV footage also showed the appellant and the large Middle Eastern man walking closely together down King Street, after Mr Woodward had transferred the moneys into the appellant’s bank account. There were records of telephone calls from the appellant’s phone to Mr Woodward on the day of the offence, including one shortly after they left the bank. Mr Woodward said that after the appellant spoke to him, the large Middle Eastern man came on the line and warned him not to go to the police.
CCTV images also depicted the large Middle Eastern man in the company of another man wearing light shorts entering the foyer of the apartment block, at about 11:20 am on 1 March 2007. The original arrangement, on Mr Woodward’s evidence, was that he was to meet the appellant at the apartment at 11:30 am. The CCTV images showed a young woman with pigtails enter the foyer of the apartment building, talking to the man in light shorts. She was still with him when Mr Woodward and the appellant left the apartment building on the way to the bank. When the large Middle Eastern man walked through the foyer just after the appellant and Mr Woodward, on their way to the bank, he looked towards the man in light shorts and the woman in pigtails and the man in the light shorts gave him a signal or acknowledgment.
There was, of course, other evidence that did not so strongly support the Crown case and that evidence is summarised above.
It was for the jury to assess the whole of the evidence. Contrary to the appellant’s submission, this was not a case where the evidence contained discrepancies or displayed inadequacies. Nor did it lack probative force. It was not a case, in my opinion, where it could be said that an innocent person had been convicted. I would dismiss this ground of appeal.
Sentence appeal
In sentencing the appellant and Mr Nam, the trial judge stated that the offence of which each had been found guilty had involved pre-planning, in that they had selected the victim, co-ordinated the luring of him to the appellant’s apartment at a time when both the offenders and the larger Middle Eastern man would be present, so as to intimidate Mr Woodward into providing the sum of $50,000. His Honour considered that a significant degree of intimidation, including violence, must have been contemplated, to convince Mr Woodward to transfer the $50,000 and to ensure that he would remain sufficiently intimidated so as not to report the matter to police. In this regard, his Honour considered it relevant that Mr Woodward knew Mr Nam well, had met the appellant previously, and could identify the apartment. In short, any report to the police would have led them directly to the appellant and Mr Nam.
His Honour regarded the physical assault on Mr Woodward as being relatively minor, but of sufficient severity to cause him to capitulate and thus render further violence unnecessary. His Honour accepted that although Mr Woodward had only sustained bruising as a result of the physical attack, he had suffered the psychological sequelae that any person of reasonable fortitude might suffer following an incident such as this. His Honour also noted that the period over which the detention had taken place was relatively short and that the amount taken was $14,000, not $50,000. His Honour remarked, however, that that was only because the appellant’s account had been frozen before he was able to access it so as to withdraw further funds.
His Honour found that the offence fell into the mid-range of seriousness of offences of that nature and noted the offence attracted a maximum penalty of 20 years imprisonment. His Honour also noted that no standard non-parole period was specified in the legislation.
His Honour then dealt with the personal circumstances of each of the offenders. Relevantly, insofar as the appellant was concerned, his Honour noted that he was born in Korea; that he came from a stable background; had been well-educated in a private Catholic school; and that his parents were relatively wealthy, both operating businesses in Korea. The appellant had ongoing contact with his family.
The appellant attended university in Korea but ceased those studies after six months and came to Australia in mid-1996 to study English and hospitality. He obtained a diploma in hospitality and then returned to Korea in 1998 to undertake his compulsory military service. The appellant returned to Australia in 1999, having completed seven months military service. In 2002, he graduated with a Bachelor of Arts in fashion and interior design. The appellant was financially supported during his studies by his parents. He obtained work in 2000 in Australia as a restaurant manager and then commenced his own cleaning business, operating that until he returned to Korea in 2003. The appellant then went to the Philippines, where he first purchased a time-share partnership in a club house at a golf resort and then managed a restaurant. He returned to Australia on 10 December 2006, on a tourist visa, for the purpose of selling his apartment.
The appellant has no prior criminal record, either in Australia or overseas. The appellant was permitted to remain in Australia after the expiration of his tourist visa, so as to face the trial, the subject of the present charge. The Department of Immigration has advised that the appellant will be deported from Australia upon his release from prison.
Since his arrest, the appellant has become a member of the Presbyterian Church and has the support of a pastor of that church. However, the trial judge considered that a reference from the pastor was of little assistance in the sentencing process, particularly in circumstances where the appellant continued to claim, as he did to the Probation and Parole Officer, that he was innocent of the offence, despite a very strong Crown case and his conviction.
His Honour considered that although the appellant and Mr Nam had different roles in the offence, there was no reason to distinguish between them in respect of their level of criminality. His Honour emphasised that the offence involved a joint criminal enterprise and that the subjective circumstances of each did not provide any significant distinction between them so as to require any differentiation in sentence. His Honour again commented that both continued to maintain their innocence in the face of a strong Crown case and the implausible defences they had raised, which had been rejected by the jury. His Honour also commented upon the lack of contrition or remorse and observed that there had been no repayment of the $14,000 withdrawn from Mr Woodward’s bank account.
His Honour did not find special circumstances in respect of either offender and announced that the same sentence would be imposed on each. His Honour then imposed a sentence of 3 years 4 months with a non-parole period of 2 years 6 months. His Honour announced the date upon which the sentence was to commence, which differed slightly in respect of each and stated the date that each would be first eligible for release.
Ground 1 on sentence: special circumstances
The appellant submitted that the trial judge erred by failing to find special circumstances. It was submitted that a finding of special circumstances could have been made by his Honour having regard to the following matters. First, it was the appellant’s first time in custody; he had no prior criminal record; was otherwise a person of good character; and it was expected that he would be deported upon release.
Secondly, it was submitted that his time in prison would be more onerous than for the general prisoner, given his limited English and the fact that he is a visitor to Australia and is isolated from family and friends. During the time he has been either in detention, or awaiting trial, a number of personal circumstances have occurred which have been particularly difficult, given his separation from family and friends. His grandmother died and he was unable to attend her funeral; the appellant’s business in the Philippines collapsed due to his absence; and his relationship with his long-term fiancée had broken down.
Thirdly, the appellant has good prospects of rehabilitation. It was submitted this was apparent because of the constructive manner in which he had used his time in custody, learning English and working within the prison system. In addition, he has not committed any breaches within the prison system and, whilst on conditional bail for almost a year, did not commit any further offences. Rather, during that time, he had become an active member of the Presbyterian Church.

The Crown submitted that no error has been established in respect of this ground. A finding of special circumstances involves a discretionary judgment: this was emphasised recently in Clarke v R [2009] NSWCCA 49 per McClellan CJ at CL (James and Adams JJ agreeing), where his Honour said, at [13], in respect of the Sentencing Procedure Act, s 44:
“… the extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge’s discretion. In R v Cramp [2004] NSWCCA 264 at [31] Spigelman CJ said that an adjustment for special circumstances ‘raises so many matters of a discretionary character that this Court should be very slow to intervene.’ Only if the non-parole period provided is manifestly inadequate or manifestly excessive should this Court intervene: Cramp at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19].”
The Crown accepts that there were matters that were relevant to a finding of special circumstances, but contends that there was no error in the manner in which his Honour exercised his discretion in not so finding.
The appellant has not demonstrated any error in the trial judge’s determination not to find special circumstances. His Honour did not give and was not required to give reasons as to why he did not find special circumstances. Presumably, that is why it is accepted that in respect of this ground of appeal there should only be appellate intervention where it is demonstrated that the non-parole period was manifestly excessive or inadequate. That is not the case here. The appellant’s complaint is really no more than that as there were factors in respect of which his Honour could have found special circumstances, he should have done so. As I have explained, that does not constitute appellable error.
Ground 2 on sentence: parity
The appellant submitted that he had a justifiable sense of grievance having regard to the same sentence that was imposed upon his co-offender Mr Nam. It was submitted that his Honour erred in failing to give proper consideration to what the appellant “actually did compared to the co-offender”. It was submitted that the mere fact that this may have been a joint criminal enterprise should not have obscured that assessment.
The appellant’s case on sentence was that the co-offender was the prime mover and main instigator in the commission of the offence, given the previous long term relationship between Mr Nam and Mr Woodward and the fact that Mr Nam had a long list of personal and financial grievances against Mr Woodward. The appellant submitted that his role involved but a “cameo appearance”. The appellant emphasised the fact that he was not the perpetrator of any violence upon Mr Woodward, nor did he verbally threaten him. It was submitted, therefore, that this was not mere disparity but was a glaringly or grossly obvious disparity: see Postiglione v The Queen [1997] HCA 26; 189 CLR 295; Lowe v The Queen [1984] HCA 46; 154 CLR 606.
The trial judge was entitled to consider that, although the role that each of the offenders played in the offence was different, their culpability was the same. Indeed, the evidence did not reveal any relevant difference in their respective roles. Both had a part in getting Mr Woodward to the apartment. Both were present during the period of the detention. The appellant did not engage in any physical assault upon Mr Woodward. However, he accompanied him to the bank after the assault and waited whilst the funds were transferred. In my opinion, a person in the position of the appellant would not have a justifiable sense of grievance in accordance with the principles stated in Postiglione and Lowe. I would reject this ground of appeal.
Ground 3 on sentence: error in finding that the objective seriousness of the offence was at mid-range
The appellant relied on the relatively minor bruising injury to Mr Woodward and to the fact that he only withdrew $14,000 of the $50,000 transferred into his account as indicating that the objective seriousness of the offence was less than the mid-range. The Crown submitted in this regard that the appellant attempted to withdraw further amounts on 2 March and was only prevented from doing so because the Commonwealth Bank had frozen his account.
I agree with the appellant’s submission that the objective seriousness of the offence was not at mid-range. However, in my opinion, the sentence imposed on the appellant was appropriate having regard to the objective seriousness of the offence and the subjective circumstances of the appellant. Accordingly, even if this ground of appeal should be allowed, the offence was a serious one and I do not consider that any other sentence is warranted in law: the Criminal Appeal Act 1912, s 6(3).
Ground 4 on sentence: the sentence was manifestly excessive
This ground should be rejected for the reasons I have already given.
Conclusion
I propose the following orders:
1.            Appeal against conviction dismissed;
2.            Leave to appeal against sentence granted;
3.            Appeal against sentence dismissed.
HOWIE J: I agree with Beazley JA.
HISLOP J: I agree with Beazley JA.
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LAST UPDATED:
5 May 2010