R v Jang

[1999] NSWSC 1153

CITATION:	Regina v Jang [1999] NSWSC 1153
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	070062/98
HEARING DATE(S):	18, 19, 21 October, 5 November 1999
JUDGMENT DATE:	3 December 1999
PARTIES :	Regina v Soo Duck Jang
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr D Howard (Crown) Mr H Dhanji (Prisoner)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Prisoner)
CATCHWORDS:	CRIMINAL LAW & PROCEDURE; Sentencing; Murder
ACTS CITED:	Crimes Act 1900 Crimes Amendment (Mandatory Life Sentences) Act 1996 Sentencing Act 1989
CASES CITED:	R v Garforth (unreported, NSW CCA, 23 May 1994) R v Twala (unreported, NSW CCA, 4 November 1994) R v Holyoak (unreported, NSW CCA, 1 September 1995) R v Hampton (1994) 44 NSWLR 729
DECISION:	See para. 39

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

Friday, 3 December 1999

070062/98 - REGINA v Soo Duck JANG

SENTENCE

1    HER HONOUR: On Monday, 18 October 1999 Soo Duck Jang was arraigned on an indictment charging him that (i) on 8 April 1998 at Blacktown he did murder In Ja Yoo and (ii) on the same date at Blacktown he did murder Min Kyoung Kang. He entered pleas of not guilty to both counts and a jury was empanelled.
2    Prior to any evidence being taken Mr Dhanji, who appears for the prisoner, sought a short adjournment in which to confer with his client. Thereafter when the court resumed Mr Dhanji asked to have his client re-arraigned. That was done and the prisoner entered pleas of guilty to both counts in the indictment.
3 I accepted those pleas and, pursuant to s 399A of the Crimes Act 1900, I discharged the jury from giving a verdict in the matter and recorded convictions on both counts.
4    The prisoner is aged 57. He is a Korean national. He was the husband of the deceased, In Ja Yoo, who was aged 48 at the time of her death. The two were married in Korea in October 1995. The deceased, Min Kyoung Kang, who was 27 at the time of her death, was In Ja Yoo's daughter by a previous marriage.
5    In Ja Yoo was a Korean national who had been granted permanent resident status in Australia in 1991. The prisoner was anxious to become a permanent resident of Australia also. In Ja Yoo acted as his sponsor in an application submitted to the Minister for Immigration. Subsequently she withdrew her sponsorship and refused to sign further forms necessary as part of the progress of the prisoner's application.
6    In the months preceding the killings the prisoner made repeated demands to In Ja Yoo that she sign the immigration papers. He threatened to kill her and her family should she not do so.
7    On 18 March 1998 In Ja Yoo called to see her neighbour, Ha Yu Kim. She was holding her stomach with her hands and was unable to speak for about three minutes. She appeared to be in pain and was crying. She told Ha Yu Kim that she had had an argument with the prisoner who had punched her in the stomach and said to her, "If you don't sign and cooperate with me I will kill all of your kids". Not long after this incident In Ja Yoo took an overdose of Valium and was admitted to Concord Hospital where she remained until 7 April 1998. While she was in hospital the deceased, In Ja Yoo, told her daughter, Sun Kyoung Kang, that the prisoner had been calling to the hospital almost every day, harassing her and making threats concerning the permanent residency papers. The deceased reported to her daughter that the prisoner had said if she wasn't to sign the papers he was going to kill everyone.
8    On her discharge from hospital the deceased went to live with her son, Dae Sung Kang, at his unit number 110/130 Reservoir Road, Blacktown.
9    On the evening of 7 April 1998 police served upon the prisoner an application for an apprehended violence order which had been taken out on behalf of In Ja Yoo and was returnable before the Burwood Local Court on 9 April 1998. That same evening the prisoner took a letter addressed to Dae Sung Kang to the Reservoir Road premises. In that letter he asserted that unless In Ja Yoo resolved the immigration matter he would write to the relevant authorities disclosing matters adverse to In Ja Yoo with a view to having her expelled from Australia.
10    On the morning of 8 April 1998 Sung Hee Jun, a friend of the deceased, Min Kyoung Kang, was present at the Reservoir Road premises when In Ja Yoo spoke with the prisoner by telephone. Ms Jun heard the deceased say, "I don't want to see you. Don't come around. Do whatever you want. Go and report to the Immigration".
11    At about 11.30 am on that morning the prisoner called to the Reservoir Road premises. At the time In Ja Yoo was taking a nap in an upstairs bedroom with her grandchild. The only other persons present in the home were the deceased, Min Kyoung Kang, and her friend, Sung Hee Jun. It appears that the prisoner went upstairs where he was heard to be talking with In Ja Yoo. After a little time the two came down to the lounge area. Min Kyoung Kang and Sung Hee Jun were also in this vicinity. Sung Hee Jun heard the prisoner quarrelling with In Ja Yoo over the matter of the immigration papers. During this quarrel the prisoner produced a knife. Min Kyoung Kang screamed. Sung Hee Jun saw that the prisoner had his hands around In Ja Yoo's neck. Min Kyoung Kang came to her mother's assistance taking hold of the prisoner's arm. The prisoner pushed her away causing her to fall to the floor. He was seen to make a cutting motion across the neck of In Ja Yoo. He stabbed her twice to the neck, three times in the region of the chest and three times in the region of the abdomen. She also sustained a wound to her back. Min Kyoung Kang stood up and again took hold of the prisoner's right arm. The eyewitness, Sung Hee Jun, described events in this way:

"He did another cutting motion across In Ja's neck while Min Kyoung was holding on to his right arm. He cut her neck a total of three times and it was in a slow motion."

I pause to observe that the autopsy report suggests in fact two severe wounds to the neck.
"In Ja was moaning. I saw blood coming from her neck. I then walked towards him and he lunged towards me two times with the knife. I could not get near him. I walked backwards and away from him. With Min Kyoung still holding onto Soo Duck's right arm, Soo Duck stabbed In Ja four times in the stomach and upper chest area. Soo Duck then took hold of both Min Kyoung and In Ja with his left hand. He had hold of both their shirt collars with his hand. Soo Duck was still holding the knife in his right hand. They were both sitting on the floor. Min Kyoung was struggling and screaming. I was panicking and pacing around the room. I was screaming. I was scared and did not know what to do. Soo Duck spoke to Min Kyoung in a calm voice. He said to her, "You too are a bad kid". As he said these words he cut Min Kyoung's throat in a slow, slicing motion. Whilst he cut her on the neck he had hold of her shirt collar with his left hand. I saw blood coming from Min Kyoung's neck. In Ja was sitting on the floor next to Min Kyoung. After cutting Min Kyoung he mumbled something to himself. He then stabbed In Ja in the chest area with the knife in his right hand. I saw him stab Min Kyoung also in the chest area."

12    Sung Hee Jun's account suggests that the prisoner moved from the mother to the daughter inflicting injuries in turn during the attack.
13    She noted that the prisoner spoke to her calmly when he said, "Don't use the phone". When she attempted to move towards the front door the prisoner blocked her path pointing the knife in her direction.
14    The prisoner forced Sung Hee Jun into the laundry closing the door behind her. She was able to escape and was later found hiding by a neighbour.
15    Fiona Kaye Marsden and Jackie Annetta Savage were both residents of the units at 130 Reservoir Road, Blacktown and both heard screaming from unit 110 that morning. From the sliding door in her lounge room Ms Marsden saw a lady in a white shirt with black hair screaming and moving away from a man who was holding a knife. She saw the man bending down, crouching over something, moving his hands in a stabbing motion. She immediately ran to the telephone and dialled 000. After doing so she decided to go and help the people in unit 110. As she approached the front door she saw a man leaving on a racing bike. This was the prisoner. She observed that he seemed really calm. He appeared to have come out of the garage of unit 110. It was not clear to her that this was the same man as the one she had seen apparently stabbing someone inside the unit. Nonetheless, she walked up the front path and knocked on the front screen door. Her courage in this regard was of a high order. She heard the baby screaming inside the unit and saw two people lying on the floor surrounded by blood. She did not know what to do. She saw the garage door was open and she considered that there may be someone still inside. She met up with her neighbour, Jackie Savage. The two of them went back to the front door of the unit and tried to open it. The door was locked. Fiona Marsden went back to her flat to make a further call for assistance from the authorities and to obtain a knife so that the two of them could cut through the screen door. Whilst she was absent, Jackie Savage succeeded in breaking in to the unit and reassuring the occupants that the police were on their way. Ms Savage checked the rooms in the downstairs portion of the unit to find out if anyone was still there. She comforted the distressed baby and collected towels from the bathroom and attempted to staunch the bleeding of the two women on the floor while she and Ms Marsden awaited the arrival of the police and the ambulance service. The bravery and concern for their neighbours shown by both women was notable and is deserving of recognition.
16    The prisoner left the scene on his bicycle. He rode to a Telecom transmission station where he entered a deserted building. He made an attempt at suicide by cutting his wrists with a broken bottle. When this did not prove successful he was to tell police that God did not want him to die. Rather he should give himself up to the authorities and tell the Korean community what sort of person In Ja Yoo was. He went to St Mary's Police Station and surrendered himself. He was fully co-operative with police in the subsequent investigation. He participated in an electronically recorded interview in which he made admissions and he participated in a video recorded walk-through at the scene.
17    In the course of the interview the prisoner described his thought process as he went to the St Mary's Police Station:

"Then on the way I was walking. I thought the, I should let the whole situation to the Korean society know about the matter. I wanted to let the whole, our community that the, I wanted to give them warning that the, these women who got married for the, the residency matters, permanent residency matters and those who, those women who acting, behaving like that, I wanted to give them warning, they, having them see the, have them, having them see the whole picture, what the, what happened today, that what I wanted to know, and I, I wanted to do to the, to the whole community people."

18    It is clear that at the time and subsequently the prisoner entertained a view that the deceased, In Ja Yoo, had brought matters upon herself by her obstinate refusal to do as he wished in the matter of the immigration application. His reasons for killing Min Kyoung Kang are a little less clear. In his interview he said that Min Kyoung was holding onto him and that was the reason that he stabbed her.
19    The prisoner maintained in his interview with police that his initial intention had not been to kill the two women. I do not accept that. The account given by the eyewitness together with the post mortem photographs speak eloquently of the prisoner's intention. Mr Dhanji did not seek to contend otherwise. I approach this matter upon the basis that the prisoner's intention in respect of both his victims was to kill them.
20    I do not consider that the evidence establishes beyond reasonable doubt that the prisoner planned to kill In Ja Yoo, or any other person, prior to his arrival at the unit that morning. I approach this matter upon the basis that the prisoner had made threats to the deceased, In Ja Yoo, in connection with the progress of his immigration application. On the morning of the killing I consider that he arrived at the premises with no fixed intention to carry out any such threat but that when In Ja Yoo refused to comply with his demands he killed her, as he had told her he would, with deliberation. The last moments for both mother and daughter were terrifying. The prisoner left the two bleeding on the floor of the unit and calling out for help. He was asked why he had not offered them any assistance and he explained, "They bled too much and I was too scared".
21    Objectively these two killings display a high level of criminality. There is little in the way of mitigation.
22    Mr Dhanji invited me to find that in his interview with the police the prisoner had expressed some regret for his conduct. This, it seems to me, is to take isolated passages from the interview entirely out of context. In answer to one question, toward the end of the interview, the prisoner said, "I'm very sorry about those two people who died". It is to be noted that he went on to state:

"What I wish is those vicious women who squeeze this money out from men who hasn't got permanent residency and then they report those people to Immigration Department and kicking out of this country. I wish those people wouldn't do that sort of things any more."

The answer continues in that vein.

23    A report prepared by Dr Christopher Canaris was tendered on the prisoner's behalf. Dr Canaris saw the prisoner at the MRRC, Silverwater, on 28 September 1998. On that occasion the prisoner gave an account that he had been feeling completely normal on the day of the killings. He had no intention of killing the women until he became involved in an altercation with In Ja Yoo. Dr Canaris asked him how he had come to kill his wife and he said that he had placed the knife against her neck. She had displayed no fear and very calmly called upon her daughter to call the police. Her daughter came to the phone and started to press the buttons. The prisoner apparently told Dr Canaris that had Min Kyoung Kang intervened in some other way the killing would not have occurred. For example, if she had said words of comfort or something conciliatory he would have listened. When the daughter grabbed him by the arm his wife started to yell for help. As she and the daughter were yelling something was said to have gone through his brain. This was to the effect that the two women, "Should have gone forever from the Korean community". The prisoner also told Dr Canaris that he believed he had sacrificed himself in order to get rid of the evil in the Korean community. Dr Canaris observed that it appeared that the prisoner saw it as his task to get rid of these people although not in the sense of a special mission imposed by God.
24    Dr Canaris went on to report that the prisoner did not feel depressed or sad at any stage. He had experienced no problem sleeping nor any change to his appetite or weight. There was no evidence of bizarre delusions or hallucinations. He reported no family history of psychiatric problems.
25    I approach this matter upon the basis that the prisoner is not remorseful and does not appreciate the enormity of his crimes.
26    From the history given to Dr Canaris it appears that the prisoner comes from Pusan. He was married prior to his marriage to In Ja Yoo. He has a son and a daughter by the first marriage but maintains no contact with them. He explained to Dr Canaris, "I finished with them after the divorce". He is the eldest of four siblings but has had no recent contact with them. He reported a normal childhood having grown up in a family with loving parents. He came to Australia in 1987 and supported himself variously as a cleaner and as a badminton coach.
27    The prisoner has no prior convictions. During his time in custody he has been befriended by a number of members of the community who have provided references for him. They attest to the circumstance that the prisoner has shown an interest in Christian religious teaching and that he has also been active in the production of sculpture and other art works within the prison.
28    I have been assisted in this matter by helpful submissions prepared by both the Crown Prosecutor and Mr Dhanji together with extensive reference to recent cases in which this Court, both at first instance and on appeal, has considered the sentencing of persons convicted of murder.
29 The maximum sentence for the crime of murder is penal servitude for life. A person sentenced to penal servitude for life is required to serve that term for the term of his natural life; s 19A(2) of the Crimes Act 1900.
30 Section 431B(1) of the Crimes Act provides:

"A court is to impose a sentence of penal servitude for life on a person who is convicted of murder, if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."

31 This provision was inserted into the Crimes Act by the Crimes Amendment (Mandatory Life Sentences) Act 1996. Section 431B(3) provides that nothing in subsection (1) effects s 442 of the Act. Relevantly, that subsection provides that where by any section of the Crimes Act an offender is made liable to penal servitude for life the judge may nevertheless pass a sentence of penal servitude of less duration.
32 The criteria to which the sentencing judge must have regard pursuant to s 431B(1) appear to reflect the observations of the Court in Regina v Garforth (unreported, NSW CCA, 23 May 1994). Prior to the introduction of the mandatory life sentence upon satisfaction of the criteria set out in s 431B(1) the basis upon which a life sentence was called for was expressed in Regina v Twala (unreported, NSW CCA, 4 November 1994) in the judgment of Badgery-Parker J:

"It must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)."

33    In that case the court considered that the violent and horrible killing of the victim by (multiple stabbing), influenced as it was by the mental disturbance of the prisoner resulting from the breakdown of his relationship with the victim upon whom he was obsessively dependent, could not be characterised as falling within the worst category. It is to be noted that in that case the sentencing judge found that the prisoner had formed a precisely formulated prior intention to inflict severe and painful bodily harm on his victim well before the fatal attack.
34 In the present case I do not find that the prisoner planned either killing, or that he planned to inflict physical violence falling short of killing, on either of his victims. It appears that he was indifferent to the fate of both. When he felt he was being thwarted by his wife, he had no compunction about killing her or her daughter. As I have already noted the objective gravity of the offences is high and is compounded by the fact both that he took two lives and that at the time of so doing he intended to kill. Nonetheless, I am not satisfied that the level of culpability is so extreme as to require the imposition of a life sentence pursuant to s 431B(1). It flows from this that I am of the view that I should impose determinate sentences in this case.
35    On the prisoner's behalf it is submitted that I would have regard to the prisoner's sense of betrayal arising out of In Ja Yoo's refusal to sign the immigration papers. Further, it is submitted that I would place weight on those matters in the record of interview suggestive that the prisoner experienced a loss of control at the time of the killings. Generally, it is contended that the feelings of betrayal, the loss of his relationship and the loss of the goal of permanent residency in combination sparked what is described as a loss of control. I accept that the prisoner felt betrayed by his deceased wife. I do not consider there was any foundation to give rise to this sense of betrayal. Rather, it seems to have flowed from the prisoner's rigid and unreasoning view of his wife's obligations to him. The submission concerning the loss of control does not sit well with the account of the eyewitness. I do not accept it. I find nothing in these matters put on the prisoner's behalf to mitigate his crimes.
36    I take into account the prisoner's pleas of guilty. I note that they were entered at the very last and in the face of an overwhelming Crown case. However, he is entitled to some benefit for the pleas nonetheless. In referring to the strength of the Crown case I take into account that the prisoner surrendered himself to the police and admitted the offences. Of more significance in weighing up such matters in mitigation as might be identified is the circumstance that the prisoner committed the offences at the age of 56, having led an apparently law abiding life up to that time. He is now 57 and necessarily faces a very lengthy period in custody.
37    My attention was drawn to the observations of Allen J in Regina v Holyoak (NSW CCA 1 September 1995). In that case in the context of dealing with an appeal brought on behalf of a prisoner then of advanced years, his Honour said that account must be taken of the circumstance that imprisonment for such a person falls more heavily than on a younger offender. In part this flows from a realisation that, having regard to the offender's age, he or she may not live to the date of release. The appellant in Holyoak was aged 75 years. The prisoner is a man in his middle years. It is true that he will be of advanced years before he is eligible for release into the community and an old man before his sentence is complete. So much is inevitable given the nature of his crimes.
38 It was submitted that I would find there were special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 having regard to the prisoner's age and the circumstance that this is his first gaol sentence. If a court determines that "special circumstances" exist consideration is given as to whether the existence of those circumstances justifies an additional term in excess of the one-third minimum term; R v Hampton (1994) 44 NSWLR 729 per Spigelman CJ at 732. I do not consider there is a need for an additional term in excess of one-third of the minimum in this case.
39    Soo Duck Jang, in respect of each conviction I sentence you to a minimum term of 18 years penal servitude. In each case the sentence is to commence on 8 April 1998 and will expire on 7 April 2016. I specify an additional term of 6 years which in each case will commence on 8 April 2016 and expire on 7 April 2022.

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Last Modified: 12/10/1999