Park v R

Case [2019] NSWCCA 105 5 June 2019

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Park v R [2019] NSWCCA 105
Hearing dates: 10 May 2019
Date of orders: 05 June 2019
Decision date: 05 June 2019
Before: Payne JA at [1]
Harrison J at [2]
R A Hulme J at [50]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed upon Tai Jin Park by Latham J on 30 June 2017.
(4) In lieu of the sentence imposed by Latham J, sentence Tai Jin Park to a non-parole period of imprisonment of 21 years and 6 months to date from 26 August 2015, expiring on 25 February 2037, with a balance of term of 7 years and 3 months expiring on 25 May 2044.

Catchwords: CRIME – sentence appeal – where appellant pleaded guilty to murder – where appellant sentenced to imprisonment for 36 years, with a non-parole period of 27 years – whether sentencing judge erred in finding murder involved a significant degree of premeditation – whether sentencing judge erred when determining objective seriousness – whether sentence manifestly excessive – appeal allowed – resentence
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lees v R [2019] NSWCCA 65
Nguyen v R (2007) 180 A Crim R 267; [2007] NSWCCA 363
R v Afu; R v Caleo (No 17) [2018] NSWSC 1127
R v Campbell [2010] NSWSC 995
R v Nguyen [2006] NSWSC 850
R v Di Cianni and Pintabona [2013] NSWSC 1328
R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979
R v Naismith [2000] NSWSC 1024
R v Wiggins [2018] NSWSC 1142
Salafia v R [2015] NSWCCA 141
Category: Principal judgment
Parties: Tai Jin Park (Appellant)
Crown (Respondent)
Representation:
Counsel:
D Dalton SC (Appellant)
M Cinque SC (Respondent)
Solicitors:
Ross Hill & Associates (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/250420
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal Division

Citation:

[2017] NSWSC 873

Date of Decision:

30 June 2017

Before:

Latham J

File Number(s):

2015/250420

Judgment

PAYNE JA: I agree with Harrison J and with the additional remarks of R A Hulme J.
HARRISON J: Tai Jin Park pleaded guilty on 1 February 2017 to the murder of Suyoung An between 18 August 2015 and 22 August 2015. He was sentenced by Latham J on 30 June 2017 to imprisonment for a term of 36 years commencing on 26 August 2015 and expiring on 25 August 2051 with a non-parole period of 27 years expiring on 25 August 2042. Mr Park appeals to this Court against the sentence imposed by her Honour upon the following grounds:

Ground 1: Her Honour erred in finding that premeditation existed to a significant degree.

Ground 2: Her Honour erred in finding that premeditation to kill and a brutal assault upon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Park v R

Details

AGLC: Park v The Queen [2019] NSWCCA 105
Case: [2019] NSWCCA 105
Decision Date: 05 June 2019

CaseChat Overview and Summary

The appellant, Park, appealed against a sentence of imprisonment for 36 years, with a non-parole period of 27 years, imposed following a guilty plea to the offence of murder. The High Court of Australia heard the appeal, which raised questions about the correctness of the sentencing judge's determination of premeditation and objective seriousness, as well as the overall severity of the sentence. The central issue for the court was whether the sentencing judge had erred in concluding that the murder involved a significant degree of premeditation, and if so, whether this error had a material effect on the overall sentence. Additionally, the court examined whether the sentencing judge had erred in determining the objective seriousness of the crime, and if the sentence was manifestly excessive.

The court found that the sentencing judge had indeed erred in finding that the murder involved a significant degree of premeditation, as the evidence did not support such a conclusion. The court held that this error had a material effect on the sentence, as it led to an overestimation of the gravity of the crime. Furthermore, the court found that the sentencing judge had also erred in determining the objective seriousness of the crime, as the evidence did not support the level of seriousness assigned. The court concluded that the sentence imposed was manifestly excessive, given the errors identified. As a result, the appeal was allowed, and the case was remitted to the Court of Appeal for resentencing.

The High Court emphasised that in cases where a guilty plea has been entered, the sentencing court must carefully consider the circumstances of the case, including the level of premeditation and the objective seriousness of the crime, to ensure that the sentence imposed is proportionate and just. In this case, the court found that the errors made by the sentencing judge had a significant impact on the overall sentence, leading to a manifestly excessive punishment. The court's decision highlights the importance of accurate and well-reasoned sentencing in murder cases, particularly when a guilty plea has been entered.

Orders