R v Chung

[2015] NSWDC 360

District Court

New South Wales

Medium Neutral Citation:	R v Chung [2015] NSWDC 360
Decision date:	16 October 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of aggravated break, enter and commit serious indictable offence, sentenced to 6 years imprisonment with a non-parole period of 3 years and 6 months.
Catchwords:	CRIMINAL LAW – sentence after trial – particular offence – aggravated break enter and commit serious indictable offence – aggravating factors – knowing persons home – armed with knife – actual use of violence – in presence of a child – gravity of offence – mid-range of objective seriousness – nature and circumstances of offender – prior good character – offending out of character – one-off incident – employed – contrition evident – good prospects of rehabilitation – no alternative to full time custodial sentence – special circumstances for altering the ratio between head sentence and non-parole period – health – age of offender
Legislation Cited:	Crimes Act 1900 (NSW), s 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
Category:	Sentence
Parties:	Regina (Crown) Tae Yong Chung (Offender)
Representation:	Counsel: T Jones (Crown) G Wendler (Offender)   Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Youngs Attorneys (Offender)
File Number(s):	2012/287915

Judgment

1. I am sentencing a man who is an otherwise good man. He is highly regarded in his church and has good relationships with his family. But he has committed an extraordinarily serious crime. The man’s name is Tae Yong Chung. The crime he has committed is aggravated break and enter and commit serious indictable offence. The aggravation is that when he broke and entered he knew someone was at home.

2. That is a crime under s 112(2) of the Crimes Act 1900 (NSW). Parliament regards it as a very serious crime. Parliament regards it as so serious that it has fixed a maximum of 20 years imprisonment to the crime. Not only that, it has fixed a standard non-parole period of five years imprisonment.

3. First, I need to say what happened to bring about this crime and I also need to make an assessment of how serious an example Mr Chung’s offence is of this particular crime.

4. Iven Han was at home on the computer on 16 September 2012. His teenage stepchildren were upstairs in their rooms. One was 14 and the other was 18. The front door was closed but not locked. Iven Han heard the door bell and saw a man walking in. He did not know the man. The man asked him “Are you James?” And Mr Han said “No.” They were standing facing each other. Then what Mr Chung did was to kick Mr Han in the stomach. The blow pushed him backwards and he found that he could not breathe because of the pain. Not content with that, Mr Chung climbed on top of Mr Han and started to hit him on his face with his fists many times. Then, worse still, Mr Chung took out a knife. (I will return to explain why I am satisfied beyond reasonable doubt that Mr Chung produced a knife.) They continued to struggle inside. Mr Han was obviously very concerned for his life. The blade of the knife was about ten centimetres long. Mr Han said that he grabbed the knife and that he “thought that I was going to die if I am being stabbed by a knife” (at T22). What Mr Han grabbed was the wrist of the hand which had the knife. While he was doing that to try to preserve his life, Mr Chung “continuously assaulted me on my face.” He called out to his stepchildren upstairs to call the police.

5. Fortunately for Mr Han, Mr Chung backed off. He walked backwards away from Mr Han and outside onto a verandah. Mr Han was concerned for the safety of his children so he took a golf club and went out onto the verandah where the men continued to struggle, assaulting one another and causing a good deal of bloodshed.

6. Mr Han had the option of closing the front door after Mr Chung left and locking it. He did not need to pursue him to the front verandah. I am not at all criticising him for what appears to be an act of bravery to protect his stepchildren but I will not take into account against Mr Chung what happened on the verandah because Mr Chung had already stopped his attack. That is a brief description of how serious this crime was that Mr Chung committed.

7. I said I would return to the question of the knife. At this stage, I should explain that Mr Chung was arrested and charged with the crime. He pleaded not guilty and his case came on before me in Parramatta earlier this year. The trial was before a jury and the jury found him guilty of the crime. Mr T Jones of counsel appeared as the Crown Prosecutor and Mr G Wendler of counsel appeared for Mr Chung. In conducting his client’s case, Mr Wendler put to Mr Han that it was Mr Han who produced the knife not Mr Chung. His client also gave evidence to that effect. Mr Wendler argued in the sentence proceedings before me that I should not be satisfied beyond reasonable doubt that it was his client who produced the knife. He argued that common sense indicates that Mr Han would have alerted his children in calling out for help. Mr Wendler pointed out that neither of his stepchildren saw the knife or mentioned it when they phoned the emergency services.

8. I am satisfied beyond reasonable doubt that it was Mr Chung who produced the knife and that there is no reasonable possibility that it was Mr Han who produced the knife. My reasons are these. First it was an issue in the trial who produced the knife. Mr Han said “Mr Chung did.” Mr Chung said “Mr Han did.” The jury’s verdict was consistent with the jury accepting beyond reasonable doubt the essential elements of the crime that Mr Chung was charged with. That does not necessarily mean that they made a determination about the presence of the knife - that is for me to decide - but nevertheless, I take into account the jury’s verdict. Secondly, Mr Wendler is right about neither stepchild mentioning the knife. But on re-reading the transcript of their evidence I notice that the stepdaughter although she saw them struggling on the floor she “couldn’t see it properly, because of the sofa blocking my view.” The stepson came out from his bedroom and saw them struggling but then left to make the triple-0 call. He made that call from his bedroom and after that he went outside because the police cars were there. Thirdly, Mr Han’s then wife had never seen the knife before. She was very clear that it was not her husband’s knife when it was put to her by Mr Wendler nor had Mr Han’s stepson ever seen the knife before and when asked whether it was Mr Han’s knife he said “No, definitely not” (at T168). Next, the stepson was asked by the Crown Prosecutor (at T161) what Mr Han had told the police. (The stepson had acted as an interpreter.) What the stepson recalled his stepfather telling the police was that “a complete stranger rang the bell and came in and started threatening with a knife.” Finally, conversation was overhead at the scene when Mr Chung was heard saying that he would “definitely kill this guy.” Mr Wendler cross-examined one of the persons who heard that about the meaning of the expression in Korean and (at T105) she said that it was “not really common” as an expression “because it is something that you use when you really hate someone, that you wanted to kill someone.” She acknowledged that expression is one that a person “would use when someone is really angry.”

9. For those reasons I am satisfied beyond reasonable doubt that when Mr Chung came into Mr Han’s home uninvited and attacked him he was carrying a knife.

10. As I said, I need to make some assessment of how serious an example this offence is of the crime created by Parliament. As Mr Wendler said, the section covers a wide range of offending “from the titular to conduct of significant seriousness.” (I am quoting from Mr Wendler’s written submissions which became MFI 16.)

11. Whilst I remember, if I have not formally done so, I convict Mr Chung of the offence.

12. Mr Jones, in his written submissions and in oral submissions before me last week on 8 October 2015, pointed to factors which are “aggravating factors to be taken into account in determining the appropriate sentence.” I am referring to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). One aggravating factor that is present in this case is that Mr Chung was armed with a weapon. I regard that as very serious, particularly since it was a knife which had the potential to cause serious or fatal injury. Another aggravating factor is that the crime involved a physical attack - what s 21A describes as actual use of violence.

13. Some crimes of break and enter and commit serious indictable offence are far less serious than this. I sentenced a young man yesterday for breaking and entering a home where nobody was there and stealing some money from a jar and some cash that was lying around. In this case Mr Chung broke into his victim’s home armed with a knife and attacked the householder. That is a further aggravating factor that the offence was committed in the home of Mr Han. Persons are entitled to feel safe and secure in their own homes.

14. Mr Wendler pointed to the unusual factor that Mr Chung had rung the doorbell first. I do not put a lot of weight on that as a mitigating factor. The crime started after he rang the doorbell and as soon as he broke in uninvited.

15. It emerged in evidence that the motive for the crime was what one of the counsel described as misplaced altruism. Mr Chung said that a friend of his had been defrauded of a lot of money by a man who used to live in Mr Han’s household (the man was an in-law or brother). He went to the household - having apparently followed Mr Han’s wife - to find the man and seek his own justice for his friend. To describe it as misplaced altruism does not emphasise the seriousness of the action taken by Mr Chung on that day.

16. Mr Jones argued that the objective seriousness of this crime is at or above the mid-range of objective seriousness. I accept that it is in the middle of the range of objective seriousness.

17. In a moment I will say something about Mr Chung’s personal life because, as I said in introducing the sentence, it will show that he is an otherwise good man who has contributed to the community and his family. But what has become clear to me in considering this sentence is just how serious the crime is that Mr Chung has committed.

18. I should add that one of the further aggravating features which I omitted to mention was that the crime was committed in the presence of a child. By that I am referring to the 14 year old stepson of Mr Han. So what Mr Chung has done is to break into a man’s own home, armed with a knife and physically attacked him and this was witnessed by the man’s own stepchildren.

19. I described Mr Chung as a good man. There is one qualification. He has one item on a criminal record. It is for an assault committed in 1991. It was obviously not regarded as serious in the Local Court, where it was dealt with, because Mr Chung received the equivalent of a good behaviour bond and no conviction was entered. He gets the benefit of a finding by me that he is a man of good character.

20. That finding is confirmed by exhibit S1, a letter from a Pastor of the Perth Immanuel Church, who knows Mr Chung well. In fact, he has known him for 30 years. Mr Kim knows all about the offending behaviour. Mr Kim says that the behaviour “is truly and totally out of my friend’s previous good character”. He described it as “truly a one-off incident which will not happen again”. I do regard it as a one-off incident. I do accept that he is a man of good character. I do accept that it is unlikely to happen again. The difficulty is that I keep coming back to how serious this crime is, objectively speaking.

21. Mr Wendler called his client to give evidence on the sentence proceedings. He is now 62 and lives in Campsie. He has had a good relationship with his de facto partner for over ten years. He has always had good employment. He is a welder, presently working on the Bangaroo site, bringing in $1,200 - $1,300 a week. Mr Chung is an Australian citizen, having come here in 1976 and has family in Sydney. He has some health issues. He has high blood pressure and some gout and has been treated for a cataract and glaucoma. His de facto partner studies rather than works and she is an artist. She is dependent financially on Mr Chung. He pays the rent. She is, as he said, totally dependent on him for financial support.

22. There is a pre-sentence report prepared by an officer of Community Corrections with Corrective Services. It reminds me that Mr Chung has a son who is married and he has grandchildren. The author described Mr Chung as “gainfully employed, and appears to be following pro-social pursuits, he appears to be regretful about his offending behaviour”.

23. I accept that he is contrite. I accept that his prospects of rehabilitation are good. Mr Chung, I should say, does not get the benefit of pleading guilty. That in no way increases the sentence. He simply exercised his right to plead not guilty. However, it does mean that a discount available to someone who pleads guilty is not available to him. He has not spent any time in custody since his arrest.

24. Mr Wendler, in putting submissions on behalf of his client, suggested that a prison sentence could be served by way of an Intensive Correction Order. Of course, I must approach that submission by first determining whether there needs to be a sentence of imprisonment and if so, for how long. This is a case where there is no alternative but to send the offender to fulltime gaol and the prison sentence must be longer than a sentence which would be appropriate for an Intensive Correction Order.

25. Given the seriousness of this crime and the fact that it lies within the middle of the range of objective seriousness, but taking into account Mr Chung’s factors favourable to him, which I have referred to - including, I might add, the fact that he was on bail with restrictive conditions, including reporting, for some time, because his case was not reached twice - I regard an appropriate sentence as being one of six years imprisonment. Normally for a sentence of six years imprisonment the non-parole envisaged by the sentencing legislation would be four and a half years imprisonment. However, I think there are special circumstances for reducing this and I will reduce the non-parole period to three and a half years imprisonment. I have in mind his age and his health serving the time in prison will be harder for him in those circumstances.

26. I should add that apart from it being part of his personal circumstances I cannot mitigate the sentence because of the difficulty he will leave his partner in by not being able to financially support her. The higher courts have made the law very clear on this for some years. Difficulty caused to friends and family members by offenders is not to be regarded as mitigating a sentence unless there are some extraordinary circumstances. Withdrawal of financial benefits does not fall into that category.

HIS HONOUR: I am going to sentence you now, Mr Chung, if you would stand up please.

27. Mr Chung, I set a non-parole period of three and one half years imprisonment. It commences today 16 October 2015 and will expire on 15 April 2019. The balance of the term is two and a half years. That will commence on 16 April 2019 and will expire on 15 October 2021. The first date on which you will be eligible for release is 15 April 2019.

HIS HONOUR:   So to make it clear, your overall sentence is six years. The non-parole period where you must stay in gaol is three and one half years. That non-parole period ends on 15 April 2019 and the Parole Authority will consider your release then. Have a seat, Mr Chung. Mr Jones, Mr Yang, tell me if there are any corrections that are to be made, any oversights or misstatements. But also the sums, so to speak, have I got the figures right? By that I mean the start and end dates and non-parole periods, to save us coming back? Go ahead and check them, it’s important that we do them.

JONES: We think your Honour’s figures are right.

HIS HONOUR: Okay, good. Mr Yang?

YANG: Yes.

JONES: Your Honour, there is just one matter. In the Crown’s sentencing bundle, your Honour, there’s a s 166 certificate, there’s a backup.

HIS HONOUR: What was that for?

JONES: There’s a backup offence. The charge is withdrawn. Would your Honour dismiss it?

HIS HONOUR: Yes.

28. I note that a backup charge of armed with intent to commit an indictable offence is withdrawn and I dismiss that charge.

HIS HONOUR: Is there anything else?

JONES: Does your Honour propose to return the exhibits?

HIS HONOUR: Yes. I will direct my associate to return exhibits A to K to you, Mr Jones. And exhibit 1, the golf club, came from the Crown, but was called for and tendered by Mr Wendler. So my guess is it goes back to you. Are you okay with that, Mr Yang?

YANG: Yes, your Honour.

HIS HONOUR: And exhibits 2 and 3 to Mr Yang. And I will direct that they be held by the prosecution and the defence for an appropriate period of time. What would that be? In case there is an appeal.

JONES: Your Honour, I am instructed that the exhibits stay in a permanent file at the DPP and the golf club will be returned to the police and then to Mr Han. Well that may--

29. I will simply direct that the exhibits remain in a safe place, and I am not saying where that should be, but I am applying it to both of you, until the question of any appeal is resolved. If there is no appeal of either conviction or sentence the exhibits may be returned to their respective owners. If there is an appeal of either type the exhibits must remain that place until the appeal and any subsequent proceedings are resolved.

HIS HONOUR: How does that sound? I think that deals with it doesn’t it?

JONES: Yes.

HIS HONOUR: Anything else, Mr Jones, Mr Yang?

JONES: No.

YANG: No, your Honour.

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Decision last updated: 10 February 2016