R v Chong

[2012] NSWSC 1309

Supreme Court

New South Wales

Medium Neutral Citation:	R v Chong [2012] NSWSC 1309
Hearing dates:	12 September - 5 October; 17 October 2012
Decision date:	26 October 2012
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	I nominate a limiting term of 15 years, to date from 30 July 2010
Catchwords:	CRIMINAL LAW - special hearing - nomination of limiting term - murder - intent to kill - intellectual impairment arising after commission of offence
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Cases Cited:	R v Goodridge (No 2) [2012] NSWSC 1180
Category:	Sentence
Parties:	Regina Do Hyun Chong
Representation:	Counsel: Mr M Hobart SC (Crown) Mr M Austin (Offender) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW
File Number(s):	2009/232540

Judgment

1. HIS HONOUR: On Sunday 17 May 2009 Jong Hwa Park was brutally murdered within a scrap metal factory at Wetherill Park. He and the offender, Do Hyun Chong, worked together at the factory and shared a bedroom on the mezzanine level.

1. The killing came to light when at about 4.30pm that day Mr Chong rang triple zero and reported that somebody was dead. He informed the operator, "Come down here. Everything broken. The guy down there bloods everywhere ... lay down there near factory. Please quick, quick." He then flagged down some passing motorists, telling them, "I think there's a dead man inside the factory".

1. Earlier that day Mr Chong had spoken by telephone with his wife who was in Perth. He told her that he was not working that day. There was some suggestion of him going to church. Later in the afternoon he called her again and, on her account, said that he later arrived at the factory and found the shutter door "was a little bit ajar and so I went inside, then I found the computer had been smashed and there was a bit of money lying on the floor and that man had been injured, seems to me that he's dead".

1. Uniformed police and ambulance officers arrived and it was readily determined that Mr Park was deceased. A crime scene and general police investigation commenced.

1. Mr Chong made a statement to police that night. He subsequently engaged in what is referred to as a "walk-through interview" the following day. Police then carried out extensive investigations in relation to the version of events provided by Mr Chong and further interviewed him over 17 hours on 8 and 9 July 2009. He was informed by the detectives at the conclusion of that interview that they would consider what he had said and would be in contact with him.

1. The overall effect of what Mr Chong told the police was that he had left the factory in the morning and had been to various places in the Strathfield area. He discovered the body of the deceased soon after arriving back at the factory late in the afternoon.

1. It is abundantly clear that Mr Chong was the prime suspect in the mind of the police by that stage. His account of his movements on the day of the murder had varied considerably, particularly after he was confronted with objective evidence which showed that what he had previously said was incorrect.

1. Four days later, that is on 13 July 2009, a vehicle which was being driven by Mr Chong crossed to the incorrect side of the road on Horsley Drive at Smithfield and collided with a large oncoming truck. There was no evidence as to why that occurred. The Crown did not suggest it was a suicide attempt. It resulted, however, in Mr Chong being hospitalised for a considerable period of time. He suffered a variety of serious injuries which included catastrophic brain damage. I will have more to say about that later.

Cause of death

1. An autopsy examination of the deceased was carried out on 19 May 2009. It was determined that the cause of death was multiple blunt force injuries. It is unnecessary to delve into the detail of the injuries that the deceased sustained; suffice to say they included numerous serious injuries to the head, chest and abdomen. The forensic pathologist likened the injuries to those seen in cases of motor vehicle collisions or in falls from height.

1. A heavy metal stake was found near to the body on the floor of the factory. It was blood stained. DNA material was recovered and a forensic biologist determined that the DNA profiles matched those of both the deceased and Mr Chong. I am satisfied beyond reasonable doubt that Mr Park's death was occasioned by a savage, brutal and sustained beating by Mr Chong with the use of that heavy metal stake.

The crime scene

1. The ground floor of the factory had an area of about 13 x 21 metres. In one corner there was an area set aside with partitioning for use as an office and a bathroom. A small mezzanine area served as a bedroom for the deceased and Mr Chong.

1. The evidence of the crime scene examiner and photographs that were admitted into evidence make it clear that the assault commenced in the office, probably as Mr Park was sitting at a desk in front of a computer. The body was found well within the factory area but there was no trail of blood or other sign of disturbance between the office and that location. From this I conclude that Mr Chong initiated his attack in the office and that Mr Park fled into the factory where he was caught and further beaten. The body was found lying face down. There was the impression of the sole of a shoe on the lower back. Mr Chong must have brought or beaten the deceased to the ground and then stood on him whilst he mercilessly beat him to death.

1. After the event Mr Chong said certain things suggestive of there having been a robbery; for example, he said that when he arrived at the factory in the afternoon he found a window was broken and the door was left open. A safe in the office which should have contained a significant amount of cash was found to contain only coins. Four bank notes were found on the factory floor between the office and the body. They were facing the same way up and were spaced relatively evenly apart. The chances of a robber dropping money and it being found in that fashion is unlikely. The door to the safe was found to be closed, something it is unlikely a robber would bother to do. It is also unlikely that a robber would have found it necessary to beat Mr Park so severely. Further, despite what Mr Chong claimed, police found no sign of forced entry to the premises. I am satisfied that he made an elementary and amateurish attempt to create the impression that there had been a robbery which had gone wrong.

The proceedings

1. Mr Chong was served with a future Court Attendance Notice on 14 October 2009 while he was still in hospital. There was a delay in the committal phase of the proceedings, undoubtedly because of his medical state. Ultimately he was committed for trial on 8 December 2010.

1. On 18 August 2011 a fitness inquiry pursuant to s 11 of the Mental Health (Forensic Provisions) Act 1990 (the Act) was conducted before Fullerton J. Her Honour concluded that Mr Chong was unfit to be tried and she referred the matter to the Mental Health Review Tribunal. The Tribunal subsequently determined that he would not become fit to be tried within the ensuing 12 months. The Director of Public Prosecutions advised pursuant to s 19 of the Act that he intended to proceed with the charge of murder. As a consequence the matter was listed for special hearing pursuant to s 21 of the Act.

1. A special hearing is to be conducted by a judge sitting alone unless the accused elects to have the matter determined by a jury. There was an election made on behalf of Mr Chong by his legal representative. Accordingly the matter proceeded before a jury at a special hearing which commenced on 12 September 2012. It culminated in the jury finding on 5 October 2012 that Mr Chong committed the offence of murder.

Background to the murder

1. Mr Chong came to Australia some 30 years ago. At some stage whilst living with his wife in Perth he took employment with a Korean company that conducted a scrap metal business there. Scrap metal was purchased and shipped to Korea where it was on sold at a profit in Korea and China. In early 2008 the principals of the company established a similar business in Sydney at Wetherill Park. Mr Chong was sent to manage the Sydney operation.

1. By late 2008 the principals came to suspect that he had been embezzling money from the business. An investigation was carried out and it was determined that there was a deficiency of $213,429.

1. The principals of the company were obviously concerned about this and took a number of steps to prevent any further embezzlement by Mr Chong. There was an obstacle to simply dismissing him from his employment because he was the only person associated with the company who held Australian citizenship. One of the steps taken was to send the deceased to Australia in late March 2009 to work with and supervise Mr Chong.

1. Whilst the principals, Mr Nam Jim Kim and Mr Weon Gyu Lim, occasionally spent time in Australia working on the business, from about mid April 2009 the deceased and Mr Chong were the only people working at the Wetherill Park premises.

1. There was a considerable body of evidence before the jury to the effect that Mr Park was experiencing immense difficulty in working and living with Mr Chong. Evidence of his conversations, both oral and by way of internet chat sessions with family and friends in Korea, were to the effect that he was making Mr Park's life extremely miserable. It is evident that Mr Chong was considerably antagonistic towards him. I infer that this was, at least in part, because of the role Mr Park played in overseeing Mr Chong's access to company funds. There was evidence of Mr Chong becoming very angry as requests for money were denied; he would swear at and abuse Mr Park for prolonged periods and would shake his fists at him in a threatening manner. On one occasion Mr Park said that if anything happened to him it would be Mr Chong who was responsible.

1. There was also evidence before the jury tending to suggest that Mr Chong had a gambling problem which may have provided him with a motive for embezzlement. However the evidence of a gambling problem was rather tenuous. The Crown relied upon the evidence of his former wife who maintained quite stridently in her evidence before the jury that he had a longstanding problem with gambling. But that was in contrast to what she had told the police in a statement made in July 2009 where she was strident in asserting the exact opposite. I am not satisfied that a conclusion can be drawn as to the nature and extent of any problem Mr Chong had with gambling. I find it unnecessary to dwell upon the issue in any event.

1. I find it equally unnecessary to decide the issue as to whether Mr Chong had in fact embezzled money from the company. He may well have but a finding against him in that respect is not a significant matter for present purposes. What is significant is that the principals of the company suspected he had done so and he knew that they so suspected.

1. Even more significant is the nature of the relationship between Mr Chong and the deceased. It was, as I have described, one of mutual dislike and on the part of Mr Chong, antagonism and frustration. It must have been particularly galling for him that a young man had been sent from Korea to oversee the running of a business that he, a man in his late sixties, had previously been entrusted to run alone.

Basis for murder

1. I am satisfied beyond reasonable doubt, and it is consistent with the verdict of the jury, that Mr Chong killed the deceased by inflicting numerous ferocious blows with the metal stake. It is abundantly clear from the nature and number of injuries sustained that this was done with an intent to kill.

1. Whilst Mr Chong clearly now suffers from a substantial intellectual impairment as a result of the catastrophic brain injury suffered in the motor vehicle collision, there is no evidence to suggest that he had any mental health issues or intellectual impairment at the time of the offence.

Subjective features

1. Mr Chong was born in 1942 and so was aged 67 at the time of the offence. He is now 70 years old.

1. He has no previous criminal convictions in New South Wales but he does in Western Australia. In 2007 he was fined for an offence of common assault. In the mid to late 1990's he was dealt with by way of fines for unlawful wounding, assault occasioning actual bodily harm and common assault, and received a suspended sentence of 4 months imprisonment for the breach of a violence restraining order. In 1984 there were two offences of assault occasioning actual bodily harm for which he received fines. The record contains a number of other entries for traffic and dishonesty matters which, for present purposes, are of no significance. Overall, the record disentitles Mr Chong to the leniency that could be extended to a person with prior good character.

1. A number of reports relating to the effects of Mr Chong's brain injury were tendered subsequent to the jury's verdict at the special hearing. The latest dated 10 September 2012 is authored by Dr Welkee Sim, a specialist in geriatric medicine with Justice Health. Mr Chong has been an inpatient in the Aged Care and Rehabilitation Unit (ACRU) of the Long Bay Hospital since 24 November 2010. He is held there as a forensic patient. He previously spent almost a year in Liverpool Hospital.

1. Dr Sim reports that the severity of Mr Chong's brain injury has caused significant cognitive impairment and although there has been some recovery, most of the deficits now appear to be permanent. Dr Sim reports that, "full recovery is not expected". Two neuropsychiatric assessments in Liverpool Hospital confirmed Mr Chong's cognitive deficits.

1. Dr Sim's report continues:

Currently, he requires prompting and occasional supervision with his activities of daily living. He is able to understand simple instructions but has difficulty following more complex instructions. He has limited insight into his situation and does not understand why he is being kept in the current facility. He would not have the capacity to make lifestyle decisions, medical decisions and to manage his financial affairs. A public guardian has been appointed to manage his affairs.

Other than his cognitive deficits, he also suffers from pain in his right shoulder due to rotator cuff injury and osteoarthritis, hypercholesterolaemia, reduced vision in his right eye and mild bilateral hearing impairment.

Since his admission to ACRU, he remains medically stable and has not exhibit [sic] any challenging behaviour. He has never been psychotic or suffers from depression. He did suffer a bout of pneumonia in October 2011 and was admitted to the Prince of Wales Hospital for treatment. He remains well since discharge.

My opinion is that physically Mr Chong remains well and requires minimal assistance (mainly in the form of prompting for his activities of daily living). Cognitively however, he requires a supervised and secured environment to continue to function, especially if he is to be released into the community. A facility such as a secured nursing home would be appropriate for him and [a] potential facility has been identified. He has already been approved from the local Aged Care Assessment Team (ACAT) for high level care.

1. In an earlier report of 29 June 2011, Dr Sim noted that Mr Chong had no recollection of the motor vehicle accident or of the crime that he had committed.

1. Some material relating to Mr Chong's background appears in a report by Dr Stephen Allnutt of 18 July 2011. It includes that he was born in Korea. He was educated to high school level. He had no apparent difficulties at school or socially. There were no behavioural problems.

1. Mr Chong came from a family of four. His parents remained together. He could not recall being exposed to domestic violence or any physical or sexual abuse. It appears that the familial environment was loving and supportive.

1. Further material emerged in the evidence given by Mrs Chong in the special hearing. Mr Chong met her in Seoul in 1966. They lived for a period of time in Korea and then he went to work in Vietnam. In 1974 he left South Korea to come to Australia to work. He received permanent residency in 1976. He and his wife had two children. Mrs Chong came to Perth with the children in 1977 and the couple received Australian citizenship in 1978. Whilst living in Perth Mr Chong worked as a mechanic with a number of mining companies. He began to work in the scrap metal business in Perth in 2006. He came to Sydney in early 2008 to run the business at Wetherill Park but maintained contact with his wife who remained in Perth. Following the motor vehicle collision on 13 July 2009 she visited him once at Liverpool Hospital but thereafter had no contact with him. The couple were subsequently divorced. Mr Chong's affairs were placed in the hands of the New South Wales Trustee and Guardian in November 2009.

Nomination of a limiting term

1. The requirements for the nomination of a limiting term pursuant to the Mental Health (Forensic Provisions) Act 1900 were recently set out by Adamson J in R v Goodridge (No 2) [2012] NSWSC 1180. I gratefully adopt her Honour's summary:

[24] A verdict that the Forensic Patient committed the offence charged (s 22(1)(c)) is a "qualified finding of guilt" made in the absence of a conviction (s 22(3)(a)). Accordingly, by reason of s 23(1)(a), the Court must indicate whether, if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment.

[25] Section 23(1)(b) of the Act defines limiting term as:

"... the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence."

[26] The effect of s 23(1)(b) of the Act is that the Court is obliged, when determining a limiting term, to adopt and apply all the statutory and common law principles of sentencing that apply to the sentencing of a person convicted of that offence: R v AN [2005] NSWCCA 239 at [13]. A limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing: R v Mitchell [1999] NSWCCA 120; 108 A Crim R 85 at [30].

[27] In R v Mailes [2004] NSWCCA 394; 62 NSWLR 181 (Mailes), Dunford J, with whom Adams and Howie JJ agreed, said, at [32] that the purpose of a limiting term:

"... is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial..."

[28] Section 54D(1)(b) of the Crimes (Sentencing Procedure) Act 1999 provides that the standard non-parole period statutory scheme does not apply to the sentencing of a Forensic Patient to detention. Accordingly the "sentence" referred to in s 23 of the Act must be a reference to the total sentence and not to the non-parole period since there is no power to fix a non-parole period less than the total term: Mailes at [29].

Assessment of sentence

1. There are three factors that are of particular relevance in assessing what sentence would have been considered appropriate if Mr Chong had been fit to be tried and had been found guilty following a normal trial. They are the seriousness of the offence, Mr Chong's age and his mental condition.

1. Mr Austin, counsel for Mr Chong, submitted that I should regard the objective seriousness of the offence as approaching, but still less than, the middle of the range. I doubt that a finding of seriousness needs to be made with that level of precision but the submission is broadly equivalent to the view I have formed.

1. I accept that the killing of Mr Park was not the product of any premeditation. It appears to have been something that occurred suddenly, as the culmination of ill-feeling by Mr Chong towards the deceased that had been brewing for some weeks. The fatal assault, however, involved extreme ferocity and brutality; the deceased received a great many blows to his head and torso with a heavy metal stake. The final blows were inflicted when he was lying face down on the ground with Mr Chong's foot on the small of his back. I am satisfied beyond reasonable doubt that at least when the final blows were delivered Mr Chong had formed an intention to kill the deceased.

1. Mr Chong's age and his severe intellectual impairment as a result of brain damage provide reasons for assessing a sentence that would be significantly less than otherwise would have been imposed. The authorities are clear that advanced age is a relevant factor to be taken into account on sentence, albeit within limits. They are also clear as to how the question of Mr Chong's intellectual impairment should be taken into account. I accept the submission by Mr Austin that it is relevant in this case in two respects. The first is that it justifies no weight being given to either general or personal deterrence. The second is that time in custody will be more onerous for Mr Chong because of his impairment, coupled with his age, than it would be for the average inmate of a correctional centre. The Crown Prosecutor, most fairly, did not take issue with any of Mr Austin's submissions on these matters.

1. The view I have formed as to what sentence would otherwise have been imposed upon Mr Chong has been influenced by the submission by the Crown Prosecutor as to an appropriate range. Mr Austin regarded that range as appropriate, although submitted that for the reasons identified in the preceding paragraph the term to be nominated should be towards the lower end of that range. My view is to the contrary because of the significant objective seriousness of the offence.

Victim impact

1. Victim impact statements by five members of Mr Park's family were tendered by the Crown. They make abundantly clear that the sadness involved in this case centres upon the effect that this most dreadful crime has had upon them. Each of the statements eloquently describe the extreme loss and grief they have experienced. It is no overstatement to say that the lives of many people have been irreparably changed for the worse because Do Hyun Chong took their loved one from them. On behalf of the Court, the community, and myself I convey to each of Jong Hwa Park's family, extended family and friends the most sincere condolences.

Commencement date

1. Mr Chong has been in custody since 30 July 2010 and so the limiting term I nominate will be specified to have commenced then.

Conclusion

1. If the special hearing had been a normal trial of a person fit to be tried and a guilty verdict had been returned, I would have imposed a sentence of imprisonment. The best estimate of the term of such a sentence is one of 15 years.

1. I nominate a limiting term of 15 years, to date from 30 July 2010.

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Decision last updated: 26 October 2012