Park v R

[2010] NSWCCA 151

Reported Decision: 202 A Crim R 133

New South Wales

Court of Criminal Appeal

CITATION:	Park v R [2010] NSWCCA 151
HEARING DATE(S):	24 March 2010
JUDGMENT DATE:	16 July 2010
JUDGMENT OF:	McClellan CJatCL at 1; James J at 68; Rothman J at 69
DECISION:	1. Appeal against conviction dismissed. 2. Grant leave to appeal against sentence but dismiss that appeal.
CATCHWORDS:	CRIMINAL LAW - whether the indictment failed to disclose an offence known to law - whether the sentencing judge failed to properly take into account the appellant's mental condition at the time of the offence - whether the sentencing judge failed to have proper regard to matters in mitigation of the sentence to be imposed
LEGISLATION CITED:	Crimes Act 1900 Offences Against the Person Act 1861 (UK) Criminal Procedure Act 1986 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	Ali v R [2010] NSWCCA 35 Alister & Ors v The Queen [1984] HCA 85; (1984) 154 CLR 404 Alseedi v R [2009] NSWCCA 185 Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371 Doja v R [2009] NSWCCA 303 DPP v Stonehouse [1978] AC 55 Engert v R (1995) 84 A Crim R 67 John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 Leach v R [2008] NSWCCA 73; (2008) 183 A Crim R 1 Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 McGhee v The Queen (1995) 183 CLR 82 McMillan v Reeves (1945) 62 WN (NSW) 126 Mercael v R [2010] NSWCCA 36 Penney v The Queen (1995) 72 ALJR 1316 R v Eagleton 169 E.R. 766; (1855) Dears. 376; (1855) 6 Cox C.C. 559 R v Fahda [1999] NSWCCA 267 R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 R v Harb [2001] NSWCCA 249 R v Israil [2002] NSWCCA 255 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v Mai (1992) 26 NSWLR 371 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Phan [2010] SASC 24 R v Rae [2001] NSWCCA 545 R v White (1910) 2 KB 124 R v Whybrow (1951) 35 Cr App R 141 Sayin v R [2008] NSWCCA 307 Yun v R [2008] NSWCCA 114; (2008) 185 A Crim R 58
PARTIES:	Sang Jin Park (Appellant) The Crown
FILE NUMBER(S):	CCA 2007/15014
COUNSEL:	H Dhanji (Appellant) M M Cinque (Crown)
SOLICITORS:	John Doolan Solicitor (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/21/0229
LOWER COURT JUDICIAL OFFICER:	Knox DCJ
LOWER COURT DATE OF DECISION:	22 October 2008

2007/15014

McCLELLAN CJ at CL
JAMES J
ROTHMAN J

FRIDAY 16 JULY 2010

PARK, Sang Jin v R

Judgment

: The appellant pleaded not guilty and was tried on an indictment which pleaded the following counts:

“1. On 3 January 2007 at Parramatta in the State of New South Wales, did attempt to set fire to Shook Hee Cho with intent to murder Shook Hee Cho.
2. On 3 January 2007 at Parramatta in the State of New South Wales, did attempt to maliciously inflict grievous bodily harm to Shook Hee Cho with intent to do grievous bodily harm.
3. On 3 January 2007 at Parramatta in the State of New South Wales, maliciously damaged by means of fire a room and furniture therein at 4/58-60 Grose Street the property of Shook Hee Cho with intent to cause bodily harm to Shook Hee Cho.”

2 Counts 1 and 2 were expressed in the alternative. The jury returned guilty verdicts in respect of counts 1 and 3.

3 In relation to count 1, the appellant was sentenced to 18 years imprisonment comprising a non parole period of 12 years and a balance of term of 6 years to date from 4 January 2007. The sentence in relation to count 3 was 2 years with a non-parole period of 16 months. This sentence has now expired.

The facts

4 Shoo Hee Cho is the wife of the appellant. Their relationship was troubled and Ms Cho decided that she wanted a divorce. There was evidence at the trial that the appellant suspected that Ms Cho was having a relationship with a person called Mr Ku. Ms Cho denied that she was having an affair and when she gave evidence at the trial rejected assertions to this effect. As the trial judge indicated in his remarks on sentence, that allegation, although it might have provided a reason for the appellant’s actions, was irrelevant to the issues in the trial.

5 On 29 December 2006 when at home the appellant and Ms Cho discussed the possibility of a separation or divorce. The discussion degenerated into an argument and a struggle. Ms Cho’s evidence was that she had attempted to pick up the telephone in the lounge room to dial Triple O at which stage the appellant pulled the cord out of the phone to prevent calls being made. On this occasion the appellant also smashed a glass table which was in the room.

6 On the next day, Ms Cho spoke with her upstairs neighbours, Mr Hoshnever Trombaywalla and Mrs Munizeh Trombaywalla. They indicated to her that they had heard the dispute that had occurred the previous day. Ms Cho asked that if they heard sounds of a similar dispute on a later occasion would they call the police.

7 On 2 January 2007 the appellant and Ms Cho agreed to separate. They agreed that the appellant would move out of the house on either 3 or 4 January 2007. They went together to change the appellant’s residential details on his driver’s licence, Medicare card, and Westpac bank account. It was agreed that he would temporarily go to live at a workshop where he carried on work until he found somewhere else to live. The parties remained together in their unit that night but on the following morning the appellant left.

8 The appellant returned to the unit on 3 January 2007 at about 6 pm. Ms Cho first saw him sitting in a car parked in the visitor’s car park in the home unit complex. He was also observed by 2 witnesses sitting in his car. This evidence was in conflict with that of the appellant who said that he was standing outside his car because he had locked his car keys in the unit where the fire and other events ultimately took place.

9 Ms Cho and the appellant went inside together. The appellant closed and locked the front door. He then asked Ms Cho to go into the bedroom and he followed her. The bedroom had an en-suite bathroom as well as a glass sliding door which opened out onto a balcony. The glass sliding door was fitted with a metal security grille. Ms Cho said that the appellant locked the bedroom door behind them. The appellant denied this although he agreed he had locked the front door. There was a dispute at the trial as to whether the appellant had inserted a screw into the frame of the bedroom door which would prevent exit from the room. It was the Crown case that he had an opportunity to insert this screw when he visited the unit during the afternoon before Ms Cho returned home. The appellant said that he had placed the screw in the door some three years earlier at the request of Ms Cho, who wanted some more privacy. His evidence was that the screw did not prevent the door being opened but merely made a sound as the door was pushed open.

10 The appellant had previously placed a 4-litre tin of paint thinner in the bedroom under the bed. His evidence was that he had placed it there on 30 December 2006 while he was gathering together his belongings. He said that he had intended to use the thinner to remove sticker remnants from the bedroom wall.

11 The appellant and Ms Cho again began arguing. Ms Cho said that the appellant again accused her of having a relationship with Mr Ku and that he insisted that she show the appellant her underpants. She complied with this request.

12 There was then a discussion about the proposed separation and divorce. The appellant said he did not want to get divorced and wanted to continue living with Ms Cho. She said that she did not want the relationship to continue, which the Crown alleges angered the appellant who continued to execute the plan he had already conceived. Ms Cho said that the appellant in a low but strong, firm and determined voice said to her, “If you don’t want to live with me there is only one choice. We have to die together, so how do you want to die? Do you want to die by being stabbed or do you want to die by fire? Choose.”

13 Ms Cho attempted to calm the appellant down. Her evidence was that the appellant had broken her mobile phone and told her that because he had already cut the cord to the landline telephone handset in the bedroom, she would not be able to contact anyone. She said that the appellant then said to her, “This is the only way.” The appellant’s account was that he had not seen Ms Cho’s mobile telephone that day and denied telling Ms Cho that he had cut the phone cord.

14 Ms Cho said that the appellant sprinkled paint thinner from the tin over Ms Cho’s head and chest. He also poured paint thinner on top of the doona/blanket on the bed and onto the carpet in the bedroom. He then doused himself with some of the paint thinner before sprinkling more liquid over Ms Cho. After being sprinkled with paint thinner Ms Cho said that she felt a stinging sensation across her chest. She took off her top which she put into the en-suite and put on another top. She then noticed that the appellant had a cigarette lighter in his hand, which she described as yellow in colour.

15 Ms Cho said that she then tried to open the glass sliding door to the balcony. However, the door was obstructed by a stick or a piece of wood in the rail of the balcony which she had placed there some time earlier as a security measure. She had previously tried to escape through the bedroom door but the screw in the door frame had blocked this route.

16 Mr and Mrs Trombaywalla were watching television when they heard a loud noise. Mr Trombaywalla went out onto his balcony where he heard screaming and shouting. He heard a female voice yell something like, “Ow, ow” at which point he telephoned Triple 0.

17 Four police constables arrived within minutes. Mr Trombaywalla directed them to Ms Cho’s unit. Each of the constables gave evidence that they detected a strong chemical smell similar to paint thinner when they approached the stairwell of the building. The police knocked at the front door and, after hearing Ms Cho yelling, tried unsuccessfully to open the door by kicking and shoulder charging it. Constable Daniel Berea and Constable Mario Pasalic then climbed through an external stairwell window from which point they were able to jump onto Ms Cho’s balcony.

18 Ms Cho’s evidence was that immediately upon hearing the words, “Police, open the door, open the door” she ran into the en-suite and shut the door. At this point Constable Laura Hill went outside to see if she could get a view inside the unit. She saw Ms Cho’s face in the en-suite window. Ms Cho was screaming. Constable Hill asked, “What is happening?” and Ms Cho yelled out, “Help, fire” while gesturing as though lighting a cigarette lighter. Constable Hill asked, “Who’s there?” and Ms Cho said words to the effect, “He try to light fire”. Constable Hill asked whether the appellant had any weapons and Ms Cho said he did not.

19 From his position on the balcony, Constable Berea saw the appellant inside the bedroom. He was standing near the door to the en-suite (which was closed) and was not wearing a shirt. Constable Berea yelled at the appellant to open the sliding door to the balcony. The appellant looked at him and began to fiddle with something in the corner of the room, possibly the en-suite door. The constable then drew a pistol which he pointed at the appellant who looked away and opened the en-suite door. The appellant disappeared momentarily before returning from the en-suite, dragging Ms Cho across the room towards the bed. Constables Berea and Pasalic attempted to rip the metal security grille off its frame but could not do so.

20 Constable Berea gave evidence that he saw Ms Cho attempting to stand up and get away from the bed. The appellant grabbed her with both his arms around her waist and pulled her back down onto the bed. Constable Berea observed that the appellant had something in his hand. He saw the appellant place that hand on the bed behind him at which point Ms Cho said she heard a sound like “click, click, click.” The Crown alleged that this was the sound of the appellant igniting the cigarette lighter which he was holding in his hand. The bed immediately erupted into flames. The appellant continued to hold Ms Cho who was screaming and struggling to get free. Constable Berea yelled out that there was a fire and instructed Constable Hill to alert the fire brigade.

21 Constable Hill retrieved a fire extinguisher from the police vehicle which she passed to Constable Pasalic. Constable Pasalic tried unsuccessfully to break the glass door with the extinguisher. He then used his police baton to smash the glass. The door was sufficiently broken to enable Constables Berea and Pasalic to enter the unit where the fire on the doona was spreading rapidly. The appellant and Ms Cho were still seated on the bed. Constable Pasalic struck the appellant with his baton and Constable Berea pushed the appellant down onto the floor. However, the appellant still had a hold of Ms Cho. Constable Berea sprayed capsicum spray into the appellant’s face in an effort to have him release Ms Cho but he continued to hold Ms Cho around her waist.

22 Constable Pasalic took hold of the doona and tried to extinguish the flames. However, he was unable to snuff it out. He carried the doona outside and threw it off the balcony. The constables then tried to drag Ms Cho outside but the appellant still had a firm hold of her.

23 By this time there were flames around both the appellant and Ms Cho. The police officers had to retreat to the balcony to get some fresh air before they went back inside. Constable Pasalic took hold of the appellant and Constable Berea took hold of Ms Cho and the officers dragged them both out onto the balcony. Ms Cho was directed to crouch down in the corner. The appellant resisted the police efforts to restrain him but was eventually handcuffed. At this point Constable Berea saw that the appellant was holding a cigarette lighter in his right hand. He took the lighter from the appellant’s hand and placed it on the floor of the balcony.

24 Constable Berea used the fire extinguisher in an endeavour to extinguish most of the flames. He was not successful. However, they were all able to escape when the fire brigade arrived and erected a ladder to the balcony. The fire crews smashed the front door lock to gain access to the unit before using fire hoses to extinguish the fire.

25 After his arrest the appellant was taken to the emergency department of Westmead Hospital where he was interviewed by a Korean speaking doctor by the name of Dr Herim Kang. He told Dr Kang that he felt a great sense of betrayal by his wife, had been greatly distressed and angry and that he wanted to end his life. He denied trying to kill his wife or having any form of suicidal ideation prior to these events. Dr Kang then conducted a physical examination of the appellant.

26 The appellant was also examined by a psychiatric registrar, Dr Arghandewal, in company with Dr Kang. Dr Arghandewal concluded that the appellant had no suicidal or homicidal ideation. The appellant scored 12 out of 12 for concentration and was deemed fit for discharge. Because of these findings by the medical staff the trial judge when sentencing the appellant concluded that the appellant had known that what he was doing was wrong and that the sentence imposed should incorporate both general and specific deterrence.

27 The appellant gave evidence at his trial. He confirmed that he had agreed to move out of the marital home and that on 2 January he had gone with Ms Cho to change the address on his main forms of identification. He said that on the morning of 3 January 2007 he had breakfast at the unit before going out. He returned at approximately 10.00am and saw Ms Cho’s eldest son, who said he had just returned from Hungry Jacks in Westmead where he had dropped Ms Cho. The appellant said he went to the Hungry Jacks and saw Ms Cho and Mr Ku in a car exiting the restaurant premises. He said he went to Mr Ku’s home and various other locations before returning to the unit. By this time he had consumed a number of glasses of wine. He had lunch at McDonalds, returning again to the unit at approximately 6.00pm. He said he went inside to collect some of his belongings but that he locked his keys inside. He stood outside his car to wait for Ms Cho. When Ms Cho returned, he said she lied to him about her whereabouts on that day. He told her that he had locked his keys inside the unit and at that point the appellant and Ms Cho went inside.

28 The appellant said that it was “ridiculous” to believe that he had spoken of wanting to die and asking Ms Cho to choose the means by which they were to die. He said that he had been attempting to persuade his wife to terminate her relationship with Mr Ku. He said that he was concerned for his wife’s reputation and was not attempting to rekindle his relationship with his wife. He did not agree with Ms Cho’s evidence that he had poured accelerant over their bodies. He said that during their discussion he had felt embarrassed and taken the can indicating his desire to commit suicide. He said that Ms Cho had taken hold of the can and had been covered with its contents when they struggled together.

29 The appellant agreed that when Ms Cho told the appellant that the thinners were stinging her skin, the appellant told her to change her clothes. He also agreed that Ms Cho assisted the appellant to remove his shirt and singlet before wiping his upper body with a towel.

30 The appellant said that it should be apparent that he did not attempt to kill his wife because he had asked for her assistance in cleaning the thinner off both of them. The appellant denied grabbing his wife whilst holding the cigarette lighter. Instead he claimed he had the lighter because he is a smoker and that Ms Cho had grabbed him due to her concern that he would start a fire. He said he did not think about starting a fire and did not really want to kill himself but merely wanted Ms Cho to change her mind about continuing her relationship with Mr Ku.

31 The appellant said he had been embarrassed by the arrival of the police which caused him to want to kill himself and for this reason he set the fire alight. He denied the version of events given by the police officers. He said that their evidence could not be true because the bedroom had 3 layers of curtains blocking the view to the outside.

32 There is one ground of appeal against conviction. The appellant also seeks leave to appeal against his sentence and accordingly raises a further three grounds of appeal.

Ground 1 Count 1 in the indictment failed to disclose an offence known to law


Ground 2 The learned sentencing judge erred in failing to properly take into account the appellant’s mental condition at the time of the offence

Ground 3 The learned sentencing judge erred in failing to have regard to matters in mitigation of the sentence to be imposed

Ground 4 The sentence imposed with respect to count one is, in all the circumstances, manifestly excessive

Ground 1

33 Although not expressly referred to in the indictment, the trial proceeded on the basis that the appellant was charged with an offence contrary to s 30 of the Crimes Act 1900. Section 30 is the last section in Division 3 of Part 3 of the Act, all of which are concerned with “attempts to murder.” Similar wording was originally found in s 15 of the Offences Against the Person Act 1861 (UK) which has been repealed. Division 3 of Part 3 provides as follows:

“27 Acts done to the person with intent to murder

Whosoever:

administers to, or causes to be taken by, any person any poison, or other destructive thing, or
by any means wounds, or causes grievous bodily harm to any person, with intent in any such case to commit murder,

shall be liable to imprisonment for 25 years.

28 Acts done to property with intent to murder

Whosoever:

sets fire to any vessel, or any chattel therein, or any part of her tackle apparel or furniture, or

casts away or destroys any vessel, or

by the explosion of gunpowder, or other explosive substance, destroys, or damages any building, or
places, or throws, any matter or thing upon or across a railway, or
removes, or displaces any sleeper, or other thing belonging to a railway, with intent in any such case to commit murder,
shall be liable to imprisonment for 25 years.

29 Certain other attempts to murder

Whosoever:

attempts to administer to, or cause to be taken by, any person any poison, or other destructive thing, or
shoots at, or in any manner attempts to discharge any kind of loaded arms at any person, or
attempts to drown, suffocate, or strangle any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years.

30 Attempts to murder by other means

Whosoever, by any means other than those specified in sections 27 to 29 both inclusive, attempts to commit murder shall be liable to imprisonment for 25 years.”

34 Both sections 27 and 28 proscribe conduct, being a completed act committed with the intention to commit murder. Section 29 expressly extends to acts which have not been completed, ie “attempts to administer … or cause to be taken”, “attempts to drown, suffocate or strangle” with the necessary intent. Against the eventuality that sections 27, 28 and 29 do not capture all of the means by which an act of attempted murder may be committed, s 30 expressly extends to any act by which a person attempts to commit murder. In the present case, the indictment alleged that the act by which the appellant attempted to set fire to Ms Cho was committed by the appellant with the intention of murdering her.

35 The appellant submitted that in this form, the indictment did not plead an offence known to the law and accordingly the Court was without jurisdiction. It was accepted that the pleaded act did not come within any of the acts specified in ss 27, 28 and 29. The appellant emphasised that those sections “effectively withdra[w] any issue of proximity that might otherwise arise.” The same cannot be said of section 30. The consequence, so the appellant submitted, was that the Crown was required, but failed, to plead an act sufficiently proximate to the completed offence. It was submitted that to attempt to do an act with the intent to murder is not the same as to attempt to murder.

36 There is, as the appellant emphasised, a lack of consistency in the sections within Division 3 Part 3. Sections 27, 28 and 29 refer to an intent to commit murder. Section 30 omits the word “intent” referring only to “attempts to commit murder.” The plain intention of the legislature was to make it an offence to commit any act in an attempt to murder another person. Sections 27 and 28 refer to completed acts and s 29 refers to some incomplete acts which are themselves attempts. To my mind this is of no consequence for the proper construction of s 30.

37 Section 30 must be read with the definition of murder provided in s 18. Section 18 relevantly involves an act or omission causing death done with reckless indifference to human life or with intent to kill or inflict grievous bodily harm. However, an attempt to murder requires an intention to kill and cannot be constituted by some lesser intention. An act undertaken with an intention to do grievous bodily harm that does not result in death will be an attempt to do the harm and not an attempt to murder (R v Whybrow (1951) 35 Cr App R 141 at 146-7); McGhee v The Queen (1995) 183 CLR 82 at 87.

38 The appellant’s complaint was that because the indictment pleaded that the relevant act was an attempt to set fire to the victim rather than a completed act (i.e. that he set her on fire) it did not allege an offence known to the law. The essential submission was that by pleading an act which was an attempt to do an act with the intent to murder there was no pleaded allegation of an attempt to murder which s 30 requires for a valid indictment.

39 The obligation of the Crown when pleading an indictment is to identify the essential factual ingredients of the offence: John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 per Mason CJ, Deane and Dawson JJ at 519; Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 per McClellan CJ at CL at [97]. In the present case as I have indicated (and the appellant does not say otherwise) the essential facts were pleaded. The appellant’s complaint was that an “essential legal ingredient” has not been pleaded. That ingredient was said to be “that the appellant attempted to murder the complainant” and being a legal ingredient it was submitted that s 11 of the Criminal Procedure Act could not remedy the defect. Section 11 provides that pleading the words of an Act creating an offence is sufficient in law.

40 I am satisfied that the appellant’s argument should be rejected. An act done with intent to murder will, if death results, constitute the crime of murder. However, if, for whatever reason, the victim survives an attempt to take his or her life, the crime will be that of attempted murder for which statutory provision is made in Division 3 of Part 3. Section 30 is concerned with means other than those specified in ss 27 to 29 by which a person attempts to commit murder. The contemplated means is an act, whether or not completed, which if it is to constitute an attempt to murder must be undertaken with the requisite intent. In the present case that act was the attempt by the appellant to set fire to Ms Cho. That act was attempted with the intention of killing her.

41 RN Howie and Justice PA Johnson’s Criminal Practice and Procedure contains, at [27-15-455], a suggested form of indictment for charges under s 30. There are two elements: first, “the accused with intent to murder the victim”, second, “did some act (not mentioned in ss27-29) or attempted to do such an act” (emphasis added). The indictment in the present case follows the suggested form, although reversing the order of the elements. An attempt to do an act (such as an attempt to set fire to another) will, when combined with an intention to kill, constitute the offence of attempted murder. No defect arises by the omission of the words, “did attempt to murder the victim.” It is true that the indictment could have been pleaded (although less elegantly) as “with intent to murder the victim did attempt to murder the victim by means of fire”. To my mind, the difference is of no consequence. In Doja v R [2009] NSWCCA 303 Spigelman CJ noted the “important distinction between the case of an indictment which did not allege an offence known to the law and the imperfect formulation of a known offence” (at [22]; see also authorities cited therein). If any complaint can be made of the indictment in the present case, it is that it falls into the latter group of formulations which are imperfect rather than defective.

42 There are cases both here and in England in which a court has considered the quality of an act which the Crown alleges constituted an attempt to murder another person. The issue, as the appellant correctly identified, is one of proximity or remoteness. In R v White (1910) 2 KB 124 the accused purchased cyanide and put it into the deceased’s glass but in a lesser concentration than was necessary to kill a person who consumed it. The medical evidence was that the death was not due to poisoning and no trace of cyanide was found in the body. Nevertheless the accused was found to have been rightly convicted of an attempt to murder her.

43 In the course of his reasons Bray J said at 130 that:

“the completion or attempted completion of one of a series of acts intended by a man to result in killing is an attempt to murder even although this completed act would not, unless followed by the other acts result in killing. It might be the beginning of the attempt, but would none the less be an attempt. It could not be the case that any act of an accused, however remote, which is connected to a subsequent attempt to kill another is sufficient to constitute an attempt to murder. The purchase of a weapon or the purchase of poison would not alone constitute the offence because of the lack of proximity between that act and any act by which the life of another was threatened.”

…

“As to the difference between acts which are attempts to murder and acts which are done with intent to murder, we feel some difficulty in accepting what Kennedy J. says in Rex v. Linneker (1); but, however that may be, it is sufficient to say, as we have already said, that all the offences in ss. 11—15 are treated as attempts to murder, and there cannot be an act done with intent to murder without its being an attempt to murder, and a prisoner cannot be convicted under s. 9 of 14 & 15 Vict. c. 100 unless, as here, the jury have found him guilty of an attempt to murder.”

44 The issue was recognised by Brennan CJ in McGhee. That case was concerned with the Tasmanian Criminal Code but the comment which his Honour made at 85 is of general relevance. Under the Code, but the same must be true of the common law, to constitute an attempt to commit a crime, the act:

“must be part of a series of events which is defined by reference to the intention possessed by the alleged offender at the time when the act was done or the omission was made. If that intention had been fulfilled the series of events would have constituted the actual commission of the crime. The actual intent of an alleged offender both constitutes the mental element and defines the series of which the alleged offender’s act or omission forms a part.”

45 His Honour was careful to note that the relevant act or omission must not be too remote to constitute an attempt to commit a crime and provided a reference to s 2(4) of the Tasmanian Criminal Code. The purchase of a weapon or poison may have the purpose of later being used to kill another but until an act proximate to the attempt to kill is carried out with that intent the offence of attempted murder is not complete.

46 In R v Mai (1992) 26 NSWLR 371 at 384 Hunt CJ at CL considered the elements necessary for the offence of “attempt.” The relevant act must go beyond preparation and must be one “which cannot reasonably be regarded as having any purpose other than the commission” of the relevant crime. In McMillan v Reeves (1945) 62 WN (NSW) 126 Maxwell J said (at 127):

“The elements necessary to constitute an attempt to commit a crime are (a) an intention to commit the offence charged, and (b) acts done immediately connected with that offence. Mere intention is not sufficient, nor will the intention suffice if accompanied by acts too remote or amounting only to a preparation for the commission of the offence.”

47 Remoteness of the act of the appellant in attempting to set fire to his wife was not an issue in the present case.

48 Because I am satisfied that the offence was sufficiently pleaded in the indictment it is unnecessary to consider the further submission of the Crown which may be shortly put that the verdict cured any defect in the indictment. The relevant principles were discussed in Doja v R [2009] NSWCCA 303 (see also R v Phan [2010] SASC 24). Even if I had concluded that the indictment was defective I would not have concluded that it was such as to deprive the Court of its jurisdiction. Counsel for the appellant conceded that if there was jurisdiction, any necessary amendment could have been made to the indictment. There being no deficiency in the directions given by the trial judge and no suggestion that on the evidence tendered at the trial it was not open to the jury to convict the appellant, then either because the jury’s verdict would cure any deficiency in the indictment or by the application of the proviso (s 6(1) Criminal Appeal Act 1912) the appeal against conviction must be dismissed.

Ground 2

49 The offence has a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years. An offender’s impaired mental functioning may be relevant to the sentencing process in a number of ways. It may, for instance, reduce the need for denunciation or for general or specific deterrence. It may affect the type of sentence to be imposed. It may increase the anticipated impact of the sentence imposed on the offender: R v Fahda [1999] NSWCCA 267 at [40] – [48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35] – [45] per Smart AJ; R v Israil [2002] NSWCCA 255; Leach v R [2008] NSWCCA 73; (2008) 183 A Crim R 1 at [10] – [11]. A “causal relationship…between the mental disorder and the commission of the offence” is a relevant, although not determinative, consideration (Engert v R (1995) 84 A Crim R 67 per Gleeson CJ at 71). If the offender proves such a causal connection on the balance of probabilities, this is a factor likely to have a mitigating effect on the sentence (Mercael v R [2010] NSWCCA 36 per James J at [70]). However, it is by no means the case that proven mental illness results automatically in a lesser sentence being imposed: Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371 per Basten JA at [83]; Sayin v R [2008] NSWCCA 307 per Grove J at [25].

50 In the present case, his Honour found that there was no psychological or psychiatric condition relevant to the assessment of the appellant’s culpability or affecting the requirements of general and specific deterrence. He considered that while the appellant’s “thought processes may have been jumbled and disordered” he “knew what he was doing”. His Honour referred to the evidence of Dr Kang who had examined the appellant in company with Dr Arghandewal almost immediately after the offences. The psychiatric evaluation showed that the appellant “had no suicidal or homicidal ideation and scored 12 out of 12 for concentration.” The examination did not disclose any prior history of depression. His Honour appears to have been impressed by two factors in relation to this evidence: first, the temporal proximity of the psychiatric evaluation to the offences; second, the fact that this initial examination took place in the company of Dr Kang, a Korean-speaking physician who was in a position to ensure that the appellant understood what was being asked of him and to ensure that the clinical notes properly reflected the appellant’s responses.

51 His Honour also considered the psychiatric evidence of Dr Allnutt in detail. Dr Allnutt conducted interviews with the appellant on 5 September and 5 October 2008 and prepared a report on 9 October 2008. At the time of the interviews Dr Allnutt considered that the appellant was “cognitively intact”. However, his view was that at the time of the offences the appellant would have been suffering a disease of the mind, being clinical depression. Dr Allnutt considered that the appellant “would have been in a highly aroused emotional state aggravated by underlying symptoms of a depressive disorder and his depression would have contributed to his vulnerability to the emergence of a suicidal and homicidal ideation at the time of the offence.”

52 The evidence contained in Dr Allnutt’s written report was substantially qualified in oral evidence. Dr Allnutt conceded that he had prepared his report on the basis of what the appellant told him during the interviews. He was not given a transcript of the trial proceedings. He was not aware that the appellant had given inconsistent accounts of the events of 3 January 2007 to Dr Kang and to the court at trial, and agreed that such inconsistencies tended to affect the reliability of his diagnosis. He was not aware that the appellant had been examined by Dr Arghandewal immediately after the offences took place. He agreed that Dr Arghandewal’s clinical notes, sparse as they were, showed no evidence of depression or suicidal ideation. Dr Allnutt at this stage agreed that the appellant “might not have been as severely depressed as [he] might have concluded”.

53 It was submitted that his Honour erred in failing to consider the evidence of Dr Arghandewal “in light of the evidence of Dr Allnut”. It was suggested that his Honour provided no explanation for preferring the evidence of Dr Arghandewal over that of Dr Allnut and did not address Dr Allnutt’s criticisms of Dr Arghandewal’s notes. I do not accept this submission. In a section of his Honour’s remarks on sentence entitled “Dr Allnutt: analysis” His Honour identified with precision the deficiencies in Dr Allnutt’s written evidence. He states:

“Dr Allnutt had not been provided with any transcript from the trial. It does not appear that Dr Allnutt was informed that the offender was assessed by a psychiatric registrar within a short time of his admission to hospital immediately after the offence. Various scenarios from the trial were outlined to Dr Allnutt in the course of the sentencing process.”

54 At [97] of his remarks, his Honour outlines the precise manner in which Dr Allnutt’s written evidence was qualified at trial. At [131] his Honour states, “I take into account the offender’s depression as it has been outlined in Dr Allnutt’s report and as qualified by him in his oral evidence, particularly given the psychiatric evaluation which was carried out by the psychiatric registrar at the hospital immediately after the incident.” I am satisfied that his Honour gave due weight to the appellant’s submission. There was, to my mind, an adequate basis for his Honour either to reject Dr Allnutt’s diagnosis or to conclude that any clinical depression that existed at the relevant time was not such as to “warran[t] any diminution of the principles of either general or specific deterrence.” This is so notwithstanding that Dr Allnutt’s concessions in oral evidence did not negate his diagnosis of depression but merely moderated it. His Honour was entitled to reject even this qualified evidence and was not bound by the Crown’s submission that “the weight to be placed on the psychiatric condition … is less than it would otherwise have been”.

55 I would reject this ground of appeal. I do not consider the appellant’s mental condition at the time of his offending to have been such as to warrant any particular leniency in the sentencing process.

Ground 3

56 At [168] of his remarks on sentence, his Honour states:

[168] “Having considered all those matters and in particular the matters detailed above, in my view there are reasons for departing from the standard non-parole period given the facts and surrounding circumstances of the offence and the aggravating factors as I have found them to be, particularly the premeditation and planning involved, and the clear intention to cause death in a particularly horrific way, warrant the imposition of a sentence more than the reference point established by the standard non-parole period. I do not regard the mitigating factors such as the absence of prior convictions, his good character and the expressions of remorse as warranting a reduction in that sentence.
[169] If I am wrong on that, having considered the matters set out in ss3A, 21A, 22, 22A and 23 of the Crimes (Sentencing Procedure) Act, in my view, the benchmark established in the standard non-parole period does not provide a just and appropriate sentence having regard to all the circumstances of the offence and of the offender. This is not a case of selecting a starting point to add or subtract a figure as was referred to in Maxwell v R [2007] NSWCCA 304 and R v Yun [2008] NSW CCA 114 at [32].”

57 It was submitted that “there was no basis for his Honour to disregard matters which operated in mitigation of sentence.” This submission is unfounded. His Honour made explicit reference to mitigating factors including the absence of relevant prior convictions, good character and the appellant’s remorse. His Honour was indicating, as in my view he was entitled to do, that these matters were not such as to justify a sentence at the level of the standard non-parole period. I do not believe that his Honour “disregarded” the matters in “mitigation”. It is erroneous to suggest, as counsel for the appellant did, that his Honour allowed his “personal view of the adequacy of the standard non-parole period…to prevail over a principled application of the legislative provisions.” His Honour passed no judgment on the adequacy or otherwise of the standard non-parole period; he simply concluded that it would be an insufficient sentence in all the circumstances of the present case, including the “mitigating” matters. He was entitled to do so.

58 I would dismiss this ground of appeal.

Ground 4

59 His Honour found that the count 1 offence was “above a mid-range but below high range of criminality”. At [118] of his remarks, his Honour stated:

“Although he admits feelings of ‘regret’ when being interviewed by the Probation and Parole Service, the offender showed little remorse for his actions. He continues to deny many of the police facts, as well as the accuracy of the wife’s allegations. It is also submitted that there are good prospects of rehabilitation. Given the qualified nature of the regret expressed, I do not think that there are any firm grounds for considering that the offender believes that he needs to change his behaviour.”

60 The appellant submitted that his Honour’s “assessment of the appellant’s prospects of rehabilitation appear to have been heavily influenced by the appellant’s denial of the offence.” It was submitted on behalf of the appellant that having regard to the appellant’s age and lack of relevant prior offences, “the sentencing judge’s assessment of his prospects was unduly pessimistic.”

61 It has been accepted by this Court that “there can be rehabilitation without confession” (Alseedi v R [2009] NSWCCA 185 per Giles JA at [65]). An offender’s prospects of rehabilitation are not necessarily thwarted by his protests of innocence (ibid). In the present case the appellant does not protest his innocence. However, he denies aspects of the Crown case, admits others, and says that he “regrets (the offences) very much”. His Honour was sceptical of the appellant’s expressed remorse. He said at [88]:

“In my view having reviewed all the evidence what expressions of remorse there are, are barely expressed, substantially qualified and only with a continuing sense of self-justification. His comments to his referees and to the authors of the various reports do not express real contrition as opposed to regret as to his current position.”

62 His Honour regarded the appellant’s expressions of remorse as self-interested if not fabricated. It was the appellant’s expressed sense of self-justification rather than his continued belief in his own innocence, which prompted his Honour to question the appellant’s rehabilitative prospects. In my view, and having regard to the decision in R v MAK [2006] NSWCCA 381; 167 A Crim R 159, this finding was clearly open. Incommensurate expressions of remorse by the appellant, coupled with an apparent lack of personal insight into his offending, justified His Honour’s finding (Ali v R [2010] NSWCCA 35 per Johnson J at [49]).

63 The appellant submitted that having regard to the appellant’s lack of relevant prior convictions, and given the absence of significant injury to the complainant, the sentence was manifestly excessive. The appellant’s record was accepted by his Honour as one of a number of matters in mitigation (at [117]). As to the absence of significant injury, his Honour concluded that this was fortuitous and occurred in spite of, not because of, the efforts of the appellant, who “actively tried to resist the police in rescuing the victim” (at [119]). I am in no doubt that this finding was justified.

64 The appellant further submitted that his Honour failed to properly distinguish two previous decisions to which he was referred. The submission is misplaced. His Honour specifically stated at [114] of his remarks that R v Rae [2001] NSWCCA 545 was distinguishable from the instant case “in that the injuries suffered by the victim were more substantial. In addition, that offender pleaded guilty to the offence, and received a discount.” It is true that his Honour did not expressly distinguish the present case from Yun v R [2008] NSWCCA 114; (2008) 185 A Crim R 58. However his Honour did state that there were “significant mitigating circumstances…relating to remorse, the unlikelihood of re-offending and the fact that his time in prison will be more difficult because of his lack of family support.” I am not satisfied that his Honour committed any relevant error in the process of discussing these authorities.

65 To my mind this was a dreadful crime for which it is plain the appellant does not take responsibility. Concerned that his relationship with Ms Cho had come to an end, and jealous of the possibility that she may have found a new relationship, he determined upon killing her by fire. Although by good fortune this attempt failed, it is difficult to imagine the terror which the appellant’s actions must have induced in her. His Honour did not believe the appellant was genuinely remorseful and continued to harbour a sense of justification. The appellant pleaded not guilty, depriving himself of any possible reduction in his sentence on that account.

66 Although his sentence is high I am not persuaded that in all the circumstances it was excessive. I reject this ground of appeal.

Order

67 In my opinion the following orders should be made:

1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss that appeal.

68 JAMES J: I agree with McClellan CJ at CL.

69 ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of McClellan CJ at CL. I generally agree with his Honour's reasons and I agree with the proposed orders.

70 It is unnecessary to recite the facts as they are contained in the reasons for judgment of McClellan CJ at CL. Further, I can add nothing useful to his Honour in dealing with Grounds 2, 3 and 4, as set out at [32], infra.

71 Ground 1 of the appeal raises the allegation that the indictment failed to disclose an offence known to law. In that respect, I agree with McClellan CJ at CL (see [48] supra) that the effect of the jury verdict, in a trial in which the rules of procedural fairness have not been contravened, is to cure any procedural defect: see Doja v The Queen [2009] NSWCCA 303 at [105] et seq, per McClellan CJ at CL. As to the terms of the indictment itself, I make these additional remarks. Before so doing, a few preliminary comments should be made.

72 This ground raises no issue of substantive merit. Essentially, it does not suggest that a verdict of guilty to attempted murder was not open. Nor does it suggest that the jury verdict was unreasonable.

73 Rather, the ground of appeal is that the indictment is badly worded and, notwithstanding the understanding of the parties at trial, does not charge attempted murder.

74 It should be noted that, in this case, there is no denial of natural justice or procedural fairness. The appellant well knew that the trial proceeded on the basis that he was charged with attempted murder. The alleged deficiency in the wording of the indictment was not raised. Further, no ground of appeal raises any deficiency in the judge's summing up to the jury.

75 If the deficiency in wording had been raised at trial, the Crown, with the leave of the Court, or the Court itself, could have amended the indictment: see s20 and s21 of the Criminal Procedure Act 1986. Instead the appellant, through his counsel, was content to run the trial, challenge the factual assertions before the jury, and then raise on appeal, for the first time, the alleged defect.

76 Of course, if the indictment were not to disclose an offence punishable by law, then, subject to the earlier-mentioned effect of the jury verdict itself, there may have been no trial in accordance with law, as, arguably, there may have been no proper or valid commencement of proceedings: John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10; R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 at [52] per Bell J, with whom Simpson and Buddin JJ agreed. But see the discussion in Doja v The Queen [2009] NSWCCA 303 at [3]-[5], per Spigelman CJ and at [105] et seq, per McClellan CJ at CL.

77 Thus, subject again to the effect of the jury verdict, if the technical objection were correct, then it might not matter that the appellant is guilty of attempted murder, because he has not been charged with it. Further, it may not matter how "correct" were the directions of the trial judge, nor how fair was the trial. The appellant, on the evidence adduced at trial, is plainly (and unarguably) guilty of attempted murder; the trial was fair; and, as stated, no ground of appeal is even raised as to the directions of the trial judge.

78 On that view, and once more subject to the effect of the verdict, nor does it matter that "proximity" was not an issue raised during the trial. The conduct that gives rise to the attempt must be an act immediately connected with the murder, not merely an act remotely leading to the murder, or preparatory of it: R v Eagleton 169 E.R. 766; (1855) Dears. 376; (1855) 6 Cox C.C. 559 at 571; Penney v The Queen (1995) 72 ALJR 1316; and see the judgments to which McClellan CJ at CL refers in his reasons in this matter.

79 It is unnecessary for present purposes to expand further and deal with the distinction between "acts immediately connected" with an offence and "acts that would, or which form part of a series of acts that would, constitute its actual commission if it were not interrupted": see DPP v Stonehouse [1978] AC 55, particularly at 85.G, per Lord Edmund-Davies. If the indictment were to omit this proximity element from the consideration of the jury, then the indictment would not charge an offence known to law.

80 I should reiterate, and adopt the analysis of McClellan CJ at CL, that on the facts proved in this case, it is undeniable that the conduct was immediately connected with murder, and not, even arguably, a merely remote or preparatory act leading to murder. Further, I reiterate my agreement with the reasoning of McClellan CJ at CL, at [48] infra, as to the effect of the jury verdict curing the irregularity, in the circumstances of this case, where the appellant was fully aware of the charge against him.

81 Proximity, which is necessary for attempt to be proved, is less difficult to recognise than it is to define. It is best illustrated by an example. An accused may purchase a gun (or any weapon) for the purpose of utilising the weapon in a murder. But the purchase is not an attempted murder. In the present case, the purchase (or procurement otherwise) of the lighter (or matches), or the paint thinner, even for the purpose of ultimately committing the murder of the victim in these proceedings, would not amount to attempted murder. But dousing the victim with paint thinner and attempting to light it is plainly attempted murder (assuming the requisite state of mind).

82 One of the answers to the argument of the appellant lies in the proper construction of the indictment and/or the meaning of the word "intent" in the expression "intent to murder"

83 The intent necessary to give rise to attempt is "an intention on the part of the offender to commit the complete offence": DPP v Stonehouse, supra, at 68, cited with approval in Alister & Ors v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 421, per Gibbs CJ. The full quote from DPP v Stonehouse, supra, is apposite:

"The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence such as, in the instant case, the taking out of the insurance policies are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so." (DPP v Stonehouse, supra, at 68.B, per Lord Diplock.)

84 His Lordship went on to state:

"In other words the offender must have crossed the Rubicon and burnt his boats." (Ibid.)

85 His Lordship's mixed metaphor (or "belt and braces" reference) emphasises that for an attempt to be committed there must be an act which would naturally or inexorably lead to the complete offence occurring, unless it were subject to interference.

86 Turning then to the relevant parts of the indictment, it charges an "attempt to set fire to [the victim] with intent to murder [her]". The "attempt to set fire" necessarily alleges an act sufficiently proximate to setting her alight with an intention to commit the completed act (i.e. setting her alight). And that act was performed with an intention to murder.

87 No issue arises from the fact that the act that constituted the attempt to murder was itself an attempt, in this case to set fire to the victim.

88 The question in issue then is confined to whether the indictment alleges an attempt to murder. Properly understood, the indictment preferred alleges an act (the attempt to set fire) with intent, by that act if completed, to commit the murder. In my view that is the only construction available for the preferred charge. And construed in that way the issue of proximity is plainly alleged.

89 If would have been preferable if the Crown had drafted the charge by inserting after the word "attempt" the words "to murder [the victim] by attempting".

90 But construed in the way it must be, this indictment contains all of the necessary ingredients for the offence of attempted murder. It alleges the act (the attempt to set fire) and the requisite intent to murder. Further, it charges that the intention was to commit murder by the act that was attempted. If the alleged act were not sufficiently connected to the murder, then the jury would have been required to return a verdict of not guilty.

91 Moreover, to use the previous analogy, if an indictment charged, for example, "purchased a weapon with intent to murder", the murder could not have been intended by the act of purchasing the weapon. In that sense, "intent" in this indictment refers not only to a state of mind, as it usually does, but to a desired outcome or object of the conduct charged. It is used in both its legal and ordinary meanings.

92 There may be cases where the obvious construction at which I have arrived is not so plain: for example, one of a series of acts intended to lead to the commission of the completed offence in the sense described in DPP v Stonehouse, supra.

93 But this indictment, plainly, alleges an act (the attempt to set fire) and an intention, by that act if completed, to murder the victim. That is how it should be understood. That is how the Crown and the appellant understood it at trial. That is the basis upon which the trial was conducted. And that was the basis for the jury verdict. So understood, it is an offence known to the law, namely, attempted murder, and the verdict should stand.

94 As already stated, I agree with the orders proposed by McClellan CJ at CL.

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