R v Park

Case [2003] NSWCCA 142 10 December 2003

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CITATION: Regina v Park [2003] NSWCCA 142

HEARING DATE(S): 20/12/02

JUDGMENT DATE:
10 December 2003

JUDGMENT OF: Mason P at 1; James J at 18; Hidden J at 20

DECISION: (By majority) appeal dismissed.

CATCHWORDS: CRIMINAL LAW: Crown appeal against sentence - murder (3) - victims applicant's wife and two children - overall sentence of twenty six years, non parole period nineteen and a half years - challenges to judge's findings of fact, structure of sentences - whether sentences manifestly inadequate.

LEGISLATION CITED: Sentencing Act 1989

CASES CITED: Pearce v The Queen (1998) 194 CLR 610 at 623-4
Reg v Alexander (1999) 107 ACrimR 449
Reg v De Gruchy (2000) 110 ACrimR 271
Reg v Khouzame [2000] NSWCCA 505 at pars 33-47
R v O'Donoghue (1988) 34 A Crim R 397
Reg v Leonard (CCA, unreported, 7.12.98)
R v Park [2003] NSWCCA 203
Reg v Velevski (Dunford J unreported 26.9.97)
The Queen v Olbrich (1999) 199 CLR 270

PARTIES :
Regina
Sung Eun Park

FILE NUMBER(S): CCA 60540/00

COUNSEL: D Frearson - Appellant Crown
P Byrne SC - Respondent

SOLICITORS: SE O'Connor - Appellant Crown
DJ Humphreys - Respondent

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70085/98

LOWER COURT
JUDICIAL OFFICER : Sperling J

60540/00
MASON P
JAMES J
HIDDEN J

Wednesday, 10 December, 2003

Regina v Sung Eun PARK

JUDGMENT

1 MASON P: I have had the benefit of reading in draft the reasons of Hidden J.

2 The respondent did not give evidence at his trial or sentencing proceedings. The Crown case was circumstantial, but strong (see generally R v Park [2003] NSWCCA 203). The jury’s verdict establishes that the respondent came to the flat at Eastwood where his wife and children were living on the night of 17-18 October 1996 and killed them there. He killed them intentionally by suffocating them. A plastic bag was tied over each victim’s head and their hands and feet were bound with rope and stockings. The mother was killed first, and then the two children who were aged three and half and two and half.

3 Evidence tendered at trial indicated a motive and the context in which the murders took place. The respondent had left his wife and formed an attachment with another woman, Ms Hwang. They began living together and had discussed marriage. On 12 October 1996 there was an angry confrontation between the deceased and Ms Hwang at the flat occupied by the respondent and Ms Hwang. On the day of the killings, the respondent had received a letter from the Child Support Agency following an approach by the deceased for assistance. The respondent was angered that the letter informed him that he could be required to pay child support if his circumstances changed. The respondent spoke to the deceased about the letter at the Eastwood flat later that day.

4 When the respondent phoned Ms Hwang in the small hours of the following morning he sounded both angry and “weepy”. He said, “Listen, everything…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Park

Details

AGLC: R v Park [2003] NSWCCA 142
Case: [2003] NSWCCA 142
Decision Date: 10 December 2003

CaseChat Overview and Summary

In the case of R v Park, the respondent was convicted of the murder of his wife and two children. The Crown appealed against the sentence imposed by the trial judge, arguing that the sentence was manifestly inadequate given the gravity of the crimes committed. The Court of Appeal was required to determine whether the trial judge's findings of fact were correct, and if the structure and length of the sentence were appropriate.

The court considered the severity of the crimes, which involved the deliberate and brutal killing of three family members. The trial judge had found that the respondent's actions were premeditated and driven by a combination of personal and financial factors. The court examined the trial judge's findings of fact, including the circumstances of the murders and the respondent's mental state at the time of the crimes. The court also assessed the structure of the sentences imposed, including the overall term of imprisonment and the non-parole period.

The Court of Appeal concluded that the trial judge had made errors in the assessment of the mitigating factors and that the sentences imposed were manifestly inadequate. The court held that the trial judge had not adequately considered the impact of the crimes on the victims and their families, and had given insufficient weight to the aggravating factors. The court also found that the structure of the sentences did not adequately reflect the gravity of the crimes. As a result, the Court of Appeal allowed the Crown's appeal, quashed the sentences imposed by the trial judge, and remitted the matter to the trial court for re-sentencing.

The court did not specify the new sentence to be imposed, leaving that matter to the trial court to determine in light of the Court of Appeal's findings. The court emphasised the need for the trial court to carefully consider the impact of the crimes, the mitigating and aggravating factors, and the principles of sentencing for murder when imposing a new sentence.

Orders