R v Park, Tai Jin

[2017] NSWSC 873

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Park, Tai Jin [2017] NSWSC 873
Hearing dates:	2 June 2017; 23 June 2017
Decision date:	30 June 2017
Jurisdiction:	Common Law - Criminal
Before:	Latham J
Decision:	The offender is sentenced to a non-parole period of 27 years to date from 26 August 2015, expiring 25 August 2042, with a balance of term of nine (9) years expiring 25 August 2051. The offender is eligible for parole on 26 August 2042.
Catchwords:	CRIMINAL LAW – sentence – murder for financial gain – plea of guilty - where premeditation – where prospects for rehabilitation moderate – where sustained assault – 36 years imprisonment – 27 non-parole
Legislation Cited:	Criminal Procedure Act 1986 (NSW) s 166 Crimes (Sentencing Procedure) 1999 (NSW) s 28
Category:	Sentence
Parties:	Regina (Crown) Tai Jin Park (defendant)
Representation:	Counsel: G Tabuteau (Crown) S Corish (Defendant)   Solicitors: Director of Public Prosecutions (NSW) (Crown) AXL Legal (Defendant)
File Number(s):	2015/250420

sentence

1. On 1 February 2017, Tai Jin Park, the offender, pleaded guilty to the murder of Suyoung An between 18 August and 22 August 2015. The maximum penalty is one of life imprisonment. The offence carries a standard non-parole period of 20 years. The maximum penalty and the standard non-parole period operate as two legislative guideposts to be taken into account in the sentencing exercise.

2. The plea came five days before the matter was listed for trial. The Crown was first notified of a plea of guilty on 23 January 2017. In those circumstances and having regard to the requirement to recognise the utilitarian value of the plea, the offender is entitled to a discount of 10% on the sentence that otherwise applies.

3. The plea of guilty was entered on the basis of agreed facts which became Exhibit A in the proceedings.

The Circumstances of the Offence

4. On 12 July 2015 the victim rented a granny flat at 12 Windermere Road in Epping. The granny flat consisted of three bedrooms around a central lounge/kitchen and bathroom. The largest bedroom at one end of the property was occupied by the victim. On the opposite end of the building were two other bedrooms. On 23 July 2013 one of those two rooms was rented to Mr Kwon Park (no relative of the offender) and in the first week of August 2015, the other room was rented to the offender.

5. The victim owned and drove a grey Honda Civic sedan which he parked out the front of the premises.

6. On 10 August 2015 at approximately 7.00pm the offender was engaged in a conversation on a Korean message service with an acquaintance, Mr Kang, in South Korea. The offender said “I’m just going to bring a couple of $10,000, after I have sold a website and a car.” The offender did not have nor had ever been the owner of a car in New South Wales and had negligible money in his accounts.

7. On 12 August 2015 at 1.00am in the morning the offender told Mr Kang that he was going to South Korea in September.

8. On 15 August 2015 shortly after midnight, the offender requested Mr Kang’s bank account details and indicated that he would transfer money by the following week. Approximately 15 minutes later the offender contacted another acquaintance in South Korea and informed her that he would be closing down his bank accounts and advertising his car.

9. On Tuesday, 18 August 2015 at about 9.00pm, Kwon Park left the premises for work as usual, leaving the victim and the offender at home. At some time between 9.00pm on 18 August and 7.00am on 19 August 2015 the offender murdered the victim. The events leading up to the death of the victim, the location of the assaults upon him and the use of a weapon or weapons to inflict the relevant injuries are matters that are only within the knowledge of the offender. For the reasons outlined below, the offender’s account of these events which was given in evidence over the course of the sentencing proceedings proved to be somewhat unreliable and self-serving.

10. At about 5.41am, CCTV at the Commonwealth Bank in Epping recorded the offender making two $1000 withdrawals from the victim’s bank account.

11. At 7.00am on 19 August, Kwon Park arrived home and saw that the glass panel to the front door was smashed and that there was blood near the door on the porch tiles. The victim’s Honda Civic motor vehicle was not at the premises.

12. Kwon Park used his mobile phone to contact the victim’s mobile phone which was fleetingly answered. Shortly thereafter, Kwon Park received a text message from the victim’s phone, indicating that the victim’s mobile phone had been dropped into water and that the victim was standing in front of his school. The message asserted that the broken glass panel in the front door was the product of an accident and that the victim had cut his hand, thus explaining the presence of blood. The victim’s mobile phone was at this stage being operated by the offender.

13. Kwon Park then saw the offender pass outside the front of the premises and walk down the side of the premises to the rear.

14. Kwon Park then received further text messages on his mobile phone from the victim’s mobile phone. Those messages indicated that there was someone coming to fix the door and requested that Kwon Park clean up the mess before they came. The message asked Kwon Park to check on “the other roommate”. The message asserted that the victim had gone to the hospital following the injury to his hand and then went to school. The victim purported to reassure Kwon Park that nothing serious had happened. These messages were also transmitted from the victim’s mobile phone by the offender.

15. About 25 minutes later the offender entered the premises and denied to Kwon Park that it was he who had walked to the rear of the premises a short time before. The offender told Kwon Park that he had fought with the victim after attempting to play a prank on him. The offender said that he had surprised the victim by grabbing him from behind and shouting at him, but the victim got angry and commenced to hit the offender. The offender claimed that the victim had smashed the door. The offender had cuts and swelling on the fingers of his right hand. He said that he had stayed the night at a friend’s place and would be moving out of the premises.

16. At approximately 11.00am on 19 August 2015 the offender rang the occupant of premises in Surry Hills in relation to the lease of a room at those premises. During the call, the offender enquired as to whether there was a car parking spot because he had a car and said he would come and view the premises. About an hour later the offender arrived in the victim’s car, albeit that the offender’s learner driver’s licence had expired on 7 July 2015.

17. During a conversation between the offender and the occupants of the premises in Surry Hills, the offender told them that he was intending to sell the car. The offender provided $1,290 in cash by way of payment for the accommodation.

18. Approximately an hour later the offender withdrew $10,000 from the victim’s bank account at the Commonwealth Bank on the corner of Liverpool and Castlereagh streets.

19. Shortly after 1.00pm that day the offender spoke to a car sales business about selling a Honda sedan but no agreement on price was reached. The offender then attended Select Auto Centre on Parramatta Road at Croydon and negotiated the sale of the victim’s Honda Civic. He provided a driver’s licence in the name of the victim, registration papers for the vehicle and the vehicle’s logbooks. He gave his name as “Su” and provided the mobile phone details of the victim. The offender was paid the agreed price of $8,500.

20. At about 6.00pm the offender caught a taxi from Croydon to Chalmers Street Surry Hills. Later that evening in a series of messages on the Korean messaging service, the offender sent Mr Kang a photograph of an envelope containing Australian currency. The offender said “I am going to transfer the money. Probably in the morning. I am going to withdraw double the amount tomorrow and search for international money transfer. I will be bringing $10,000 in cash and send the rest…depends how much I spend. I sold the car today.”

21. The offender included two images of the injuries to his hands, telling Mr Kang that it was from punching. Later that evening on the messaging service, the offender informed another person that he had sold the car that day. That evening the offender had dinner at a Thai restaurant in Pitt Street Sydney with a former work acquaintance. That person took photos of the offender’s hands. The offender said that he had been in a fight with two middle-aged men and that his tooth hurt.

22. At about 10.00am on 20 August 2015 the offender withdrew $49,000 in cash from the victim’s account at the Commonwealth Bank on the corner of Liverpool and Castlereagh streets. A further $1000 was withdrawn by the offender from the victim’s bank account via a Commonwealth Bank ATM.

23. A short time later the offender purchased a quantity of clothing and a backpack for $379.85 using the victim’s funds.

24. At 12.30pm the same day the offender attended a grocery store in Pitt Street and made arrangements for the transfer of money to Korean bank accounts. The offender provided $60,000 in cash to the shopkeeper who completed a currency conversion to Korean Won and then remitted two separate amounts to two nominated Korean bank accounts. The balance was returned to the offender. These were the victim’s funds.

25. In the afternoon of that day the offender purchased a Tag Heuer watch for $6,750 using the victim’s funds. The watch and the receipt were recovered during a search of the offender’s premises at Surry Hills on 25 August 2015 and during a search of the offender’s mother’s premises on 1 September 2015.

26. That same afternoon the offender purchased further luxury items, including a suitcase, totalling approximately $1,500. The offender also purchased a one-way business class airline ticket to Korea in the sum of $2,600 in cash for travel on 3 September 2015. He made arrangements with the Korean Consulate to obtain a passport. Two further withdrawals from the victim’s bank account, namely $500 and $470 were also made by the offender. The offender also sent a text message from the victim’s mobile phone to Kwon Park asking the latter to have his rent money available for collection.

27. On Friday, 21 August 2015 the offender returned to the grocery store where he completed documents for the further transfer of Korean money to two separate accounts. The offender also arranged for two parcels of luxury items to be sent to South Korea, providing his own name, address and mobile phone number as the sender of the package.

28. By the morning of 22 August 2015, the victim’s younger brother became concerned regarding the victim’s whereabouts. He attended the premises in Epping, spoke to Kwon Park and was told about the broken door panel. They discovered a sledgehammer, with blood and black hair on it at the rear of the premises behind the offender’s bedroom window. They contacted police.

29. Police attended the premises, took possession of the sledgehammer, took swab samples of blood located near the broken glass in the door, on the sledgehammer and on the mattress of the bed of the offender. There was also blood splatter on a kitchen tidy bin.

30. At about 5.30pm later that day the victim’s body was found inside a green council bin placed near the roadway around the corner from the premises occupied by the victim and the offender. Police examined the contents of the bin and found the victim in a foetal position, wrapped in a large orange plastic bag, inside a suitcase. The victim was wearing pyjamas and a black longsleeved top. Black electrical tape was wrapped tightly around the neck and wrists. The body was also tied up with red rope around the hands, torso and legs.

31. Following a full forensic examination of the premises and other relevant items, the victim’s DNA was found in the blood on the iron head of the sledgehammer. The offender’s DNA was found at various places along the handle of the sledgehammer. The victim’s DNA was also found in bloodstains on a number of surfaces inside the premises including the door handle and both sides of the front door, a PlayStation controller, table, and wall in the victim’s bedroom, a window blind in the dining room, a TV remote control in the lounge room, the refrigerator door, the handle, interior and outside of the kitchen bin, the bathroom sink spout and the shower screen door, the mattress in the offender’s bedroom, and a wall opposite Kwon Park’s bedroom door.

32. The victim died of blunt force trauma to the head, including 22 lacerations to the scalp, ranging in size from 10mm up to 100 x 50mm. There were multiple impacts at the same location and multiple underlying skull fractures. There were eight lacerations to the face and defence type injuries to the upper limbs.

33. The offender was arrested on 24 August 2015 and took part in a record of interview. The offender said there had been a physical confrontation between himself and the victim during which the glass panel in the front door smashed. However the offender denied attacking or injuring the victim. The offender was taken into custody on 25 August 2015 by immigration officials.

34. The offender was further interviewed on 26 August 2015. The offender was informed of the evidence of his movements in the victim’s vehicle and the use of the victim’s mobile phone. The offender exercised his right to silence and was then charged.

35. The theft and sale of the motor vehicle, the use of the victim’s funds and the licence offence are the subject of 10 charges on a certificate under s 166 of the Criminal Procedure Act1986. The disposition of these matters depends upon a significant factual dispute, namely whether the offender planned to kill the victim some days before the murder. It is accepted that if it were found beyond reasonable doubt that the murder was premeditated for the purpose of stealing the victim’s money and car, the sentence would reflect that aggravating circumstance, such that any penalty for the offences corresponding to those thefts ought not to be separately imposed. In that event, the charges under the s 166 certificate should be dismissed. The offender maintains that the murder was the product of a spontaneous outburst of anger towards the victim and that the thefts occurred as an afterthought. In that event, I could impose separate sentences for those offences. I turn to the resolution of that factual dispute.

Premeditation

36. This issue falls to be determined upon a consideration of the following evidence:

1. The Agreed Facts

2. The evidence of Raymond Yew

3. The evidence of the Offender

37. Raymond Yew gave evidence of a conversation with the offender which, according to his statement of 9 November 2015, occurred two or three weeks before the victim’s body was found, that is, in the first or second week of August 2015. The offender commenced working at a Beecroft restaurant with Mr Yew within a few days of the offender moving into the victim’s premises.

38. However, Mr Yew also stated that within a few days of the conversation, the offender ceased coming to work with him and that it was the last time he saw the offender. That would place the conversation in the days leading up to 18 August.

39. According to Mr Yew, the offender asked Mr Yew if he knew where the offender might purchase a bag or luggage large enough to contain a human. Mr Yew joked with the offender that he was considering taking a friend back with the offender to Korea. The offender had made no secret of the fact that he intended to go back to Korea in the near future. Mr Yew was challenged on his version of the conversation but remained firm in his account. The offender maintained that it was Mr Yew who referred to the luggage being large enough to contain a human.

40. Given the offender’s general unreliability as a witness and Mr Yew’s insistence on the terms of the conversation, I am satisfied beyond reasonable doubt that the offender did make such an enquiry of Mr Yew a matter of days before the offender murdered the victim.

41. The evidence of the offender was unsatisfactory in a number of respects. The offender initially gave evidence of an altercation with the victim provoked by the victim’s reaction to the offender’s attempt to play a harmless prank upon him. The offender said he left the house briefly to go to a shop and then returned to find that the victim had discovered that the offender’s visa had expired. The offender became angry that his status as an unlawful resident had been exposed and a sustained physical fight ensued that ranged throughout the premises.

42. The offender claimed that at some point he considered that the victim was dead. He managed to truss up the body, place it inside an orange plastic bag, place the plastic bag inside a suitcase with wheels and drag the whole bag to the rear of the premises. Once outside in the back courtyard, the offender said that he felt some movement from inside the bag and became scared. He grabbed an implement, a sledgehammer, which happened to be nearby and struck the outside of the bag a number of times with it.

43. This account is implausible on its face, given the forensic evidence, in particular the victim’s blood and hair on the iron head of the sledgehammer and the nature of the injuries to the victim’s head. The presence of the victim’s blood throughout the premises suggests a sustained, vicious attack upon the victim who was pursued through almost every room of the house.

44. Following a short adjournment to allow a report from Dr Nielssen to be obtained (Exhibit 2), the offender gave further evidence which suggested that he “dreamt” or remembered different versions of what occurred that night. To Dr Nielssen the offender said that he did not remember the day of the murder and could not tell if his memory of the events was real or imagined. He had no memory of the victim knowing about the expired visa. He had no reason to be angry towards the victim. The offender admitted he used the sledgehammer with the intention of killing the victim.

45. The offender’s acknowledged unreliability pervades his account, not just in relation to the assault upon the victim, but also in relation to the theft of the vehicle and the victim’s funds. The offender maintains that the messages exchanged with friends in Korea which suggested that he intended even then to kill and rob the victim were nothing more than lies which he routinely told about his material circumstances. He insists that he only formed the intention to steal from the victim’s bank account after the murder and that he saw the banking app for the account on the victim’s phone, together with his wallet and keys on the hall table. It is put on his behalf that such a degree of premeditation as is suggested by the Crown is inconsistent with the absence of a passport and no means of leaving the country.

46. I reject the offender’s evidence on both of these issues. I am satisfied beyond reasonable doubt that the offender formed the intention to steal from the victim shortly after he moved into the premises, when it became apparent that the victim was from a supportive and comparatively wealthy family. The offender knew that the death of the victim was the only means whereby he could gain access to the bank account and the car. He decided, in effect, to assume the victim’s identity for those purposes. The offender’s own family background was lacking in financial and emotional support. He had largely fended for himself since his mid teens and he lacked direction and purpose. The combination of the evidence I have outlined, together with the offender’s personal circumstances, provide a powerful case for premeditation to a significant degree. The fact that the offender did not have a ready means of leaving the country does not detract from that finding. The offender demonstrated by his conduct after the murder that his primary concern was enjoying the fruits of the thefts.

37. Taking these matters into account, the objective gravity of the offence is significantly above the mid-range for an offence of murder. Premeditation, an intention to kill, and a brutal assault upon a young man whom the offender barely knew for base financial reasons place this offence in the more serious category than many instances of murder coming before the courts.

38. The tragedy of the victim’s death and the continuing effects it has had on the victim’s family are acknowledged. The victim’s father has given up a lucrative business and has sold and moved from the family home because of the pain associated with the loss of his son. The Court is acutely aware of the depth of their grief. I take the Victim Impact Statements into account pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act1999.

Subjective Features

49. The offender is presently 28 years of age. He is a South Korean national who has been living in Sydney since the age of 12. He arrived in 2002 on a student visa to continue his education and lived initially with a Korean family in Strathfield. His mother was largely absent from his life, and he was raised by his grandparents in South Korea. He had no relationship with his father. His mother came and went from Korea and Australia during the offender’s adolescence. There were short periods when he resided with his mother but otherwise from the age of 16 he found his own share accommodation and worked casual jobs so that he could attend school. He finished Year 12 and has worked in restaurants and doing cleaning jobs since that time.

50. The offender has no prior convictions. I accept that he is genuinely remorseful and contrite and cannot explain how his life has come to this. He recognises that he is prone to violent outbursts of temper. His mother has in the past been exposed to his anger, which was one reason for their estrangement. Since the offender’s incarceration for this offence, his mother has been supportive and has demonstrated deep concern for her son.

51. It is difficult to gauge the offender’s prospects of rehabilitation. On the one hand, he is developing some insight into his behaviour and he has reconciled with his mother. On the other hand, his attempts to minimise his culpability notwithstanding his plea is a matter of concern. On the whole, I view his prospects of rehabilitation as moderate.

52. The reports of Mr Borenstein and Dr Nielssen explain the origins of the offender’s depression, isolation and deep sense of abandonment. The offender wanted to remain in Australia and feared returning to Korea permanently because of the threat of conscription. However, he had no residency status and had been living for some years prior to the offence in a state of heightened vigilance. He expected to be detained and deported if he was exposed as an illegal immigrant. All this goes a considerable way towards explaining the offender’s motives and state of mind when he resolved to kill the victim, but it cannot excuse or in any way justify the offence.

53. On the basis of the material available on sentence, I am unable to make a finding in relation to future dangerousness. Much will depend upon the offender’s response to treatment within the prison system and thereafter.

Sentence

54. In view of the finding in relation to premeditation, I dismiss the charges in the s 166 certificate.

55. I decline to find special circumstances. There is no basis for doing so and the length of the sentence will necessarily provide for a sufficiently lengthy parole period.

56. Taking into account all of the matters, objective and subjective, I impose the following sentence:

Tai Jin Park, I sentence you to a non-parole period of 27 years to date from 26 August 2015, expiring 25 August 2042, with a balance of term of nine (9) years expiring 25 August 2051. You are eligible for parole on 26 August 2042.

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Amendments

03 July 2017 - Correction to para 48 "offender's father" to "victim's father"

Decision last updated: 03 July 2017