R v Sang Jin Park
[2008] NSWDC 234
•17 October 2008
CITATION: R v Sang Jin Park [2008] NSWDC 234 HEARING DATE(S): 17/10/08
JUDGMENT DATE:
17 October 2008JURISDICTION: Criminal JUDGMENT OF: Knox SC DCJ DECISION: In relation to count 1 the offender is sentenced to a term of 18 years imprisonment commencing on and from 4 January 2007 and expiring on 3 January 2025, with a non-parole period of 12 years commencing on and from 4 January 2007 and expiring on 3 January 2019.
In relation to count 3 the offender is sentenced to a term of 2 years imprisonment commencing on and from 4 January 2007 and expiring on 3 January 2009, with a non-parole period of 16 months commencing on and from 4 January 2007 and expiring on 3 May 2008.
That sentence is to be served concurrently with the sentence in relation to count 1.
I dismiss the back-up charge of maliciously damage property by fire – H29203968 – sequence 3.
In relation to the three related offences, namely:-
a) H29203968 – sequence 4 – Resist officer in execution of duty, six months imprisonment to be served concurrently to commence on 4 January, 2007 and expire on 3 July, 2007;
b) H29203968 – sequence 5 – Maliciously destroy property; one months imprisonment to be served concurrently to commence on 4 January, 2007 and expire on 3 February, 2007;
c) H29203968 – sequence 6 – Intimidate with intent to cause fear of physical/mental harm - is dismissed.CATCHWORDS: Attempt to set fire with intent to murder - Malicioiusly damage by fire with intent to cause bodily harm - Victim wife of the offender - Prevention of escape - Intervention by police - No psychiatric condition or defect of reasoning - Depressive episode - Significant planning and premeditation - Considerable degree of force - Offence occurred in victim's home - Domestic background - Offence committed without regard for public safety - No prior convictions - Little remorse - Limited degree of mitigation of the penalty - Above mid-range, below high range of criminality - Standard non-parole period - Special circumstances - No evidence of likelihood of deportation LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999CASES CITED: Benitez v R [2006] NSWCCA 21
in R v Fahda [1999] NSWCCA 267
R v Letteri (unreported, NSWCCA, 18 March 1992)
R v Engert (1995) 84 A Crim R 67
R v Scognamiglio (1991) 56 A Crim R 81
R v Champion (1992) 64 A Crim R 244
R v Wright (1997) 93 A Crim R 48
R v Macadam-Kellie [2001] NSWCCA 170
The Queen v Elphick [2000] NSWSC 977
The Queen v. Cheung (CCA, unreported 11 December 1995)
Rae [2001] NSWCCA 545
Yun v R [2008] NSW CCA 114
R v Way [2004] 60 NSWLR 168
R v Pillay [2006] NSWCCA 402
Maxwell v R [2007] NSWCCA 304
R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23
R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268
Philipos [2008] NSWCCA 66
R v Merrin [2007] NSW CCA 255PARTIES: R
Sang Jin ParkFILE NUMBER(S): 07/21/0229 COUNSEL: Crown: Ms Herbert
Defence: Mr Young
- 48 -
JUDGMENT
1 On 25 March 2008 the offender was found guilty by a jury following a trial at the Parramatta District Court on the following offences:
On 3 January 2007 at Parramatta in the State of New South Wales, did attempt to set fire to Shook Hee Cho with intent to murder Shook Hee Cho.
The maximum penalty for this offence pursuant to s30 of the Crimes Act 1900 is 25 years imprisonment.
There is a standard non-parole period of 10 years in relation to this offence.
On 3 January 2007 at Parramatta in the State of New South Wales, maliciously damaged by means of fire a room and furniture therein at 4/58-60 Grose Street the property of Shook Hee Cho with intent to cause bodily harm to Shook Hee Cho.
The maximum penalty for this offence pursuant to s196(1)(b) of the Crimes Act 1900 is 14 years imprisonment.
Evidence
2 These findings are based on the evidence given in the trial before me. The offender gave evidence in the trial as did the victim, Miss Cho and other witnesses.
3 The defence case that the offender did not intend to set fire to Miss Cho with intent to murder her was clearly not accepted by the jury.
4 I should indicate that, in relation to any conflicts in the evidence and except where otherwise stated, I have accepted the evidence of the victim on factual matters relevant to sentence in preference to that of the offender.
5 The offender did not give evidence in the sentencing proceedings.
Observations and background matters
6 While the victim was clearly upset and to some extent traumatised by the events, I did not see any indications of hysteria or exaggeration as she gave in any aspect of her evidence.
7 There were some instances where the offender was apparently mistaken as to where he observed the victim when he followed her to see if she was with Mr Ku. That seemed to be a manifestation of his firm, if not obsessive, suspicion as to an involvement – strongly denied by the victim – about which he intended to confront Miss Cho, even to the point of demanding that she show him her underpants in the bedroom prior to the fire being ignited by the offender.
8 A statement of Mr Ku which included his denial of any physical or romantic association was served as part of the Crown brief. Mr Ku was not called by either party. Miss Cho’s denials of the affair and the various geographical and factual matters put to her on the basis of his instructions were comprehensively denied by her. To the extent that it is relevant I accept those denials. Even if there was an affair or association, that cannot operate as a justification for what occurred.
Findings
9 Consistently with the jury’s verdict and the observations I have just made, I find the following facts to have been established on the evidence:
10 The offender and the victim (“Miss Cho”) met in Australia when the offender worked for Miss Cho in her capacity as a cleaning contractor. They subsequently married and, after the marriage, the offender went to live in Miss Cho’s flat which are the premises referred to in count 3.
11 During the latter part of the marriage there were ongoing discussions about whether the offender’s son would come to live in Australia from Korea. Miss Cho was reluctant for that to happen. There were ongoing discussions and the relationship further deteriorated it would seem because Mr Park suspected that Miss Cho was having a relationship with Mr Ku.
29 December, 2006
12 It would appear that there were discussions about either a separation or a divorce and those culminated in the events on the 29 December 2006 -five days before the events the subject of the indictment. On that day there was a discussion which de-generated into an argument during which Miss Cho’s telephone was broken either by Mr Park or when the two of them were pulling the telephone in different directions.
13 What also occurred on that date was that the offender smashed a glass table in the unit where the arguments took place. Miss Cho’s evidence was also that she attempted to pick up the home phone in the lounge room to dial “000” at which stage the offender pulled the cord out of the home phone to prevent calls being made.
Agreement to divorce and separate
14 Subsequently the parties agreed to divorce and for the offender to move out of the house on 3 or 4 January 2007.
15 The following day, 30 December 2006, the offender went to visit an upstairs neighbour, Mr Hrshnever Trombaywalla and his wife. After confirming that they had heard the dispute, Miss Cho asked them that if they heard sounds of a similar dispute that they would call the police. Mr Trombaywalla gave evidence confirming that conversation and his consent to take that course.
2 January, 2007
16 On 2 January 2007 the parties went together to change the offender’s address details on his driver’s license, Medicare card, and Westpac account. It was discussed between them and, agreed, that he would go to live at a business address being a garage from where he carried on work temporarily until he found somewhere else to live.
17 The parties remained together in the unit that night and on the following morning (3 January 2007) the offender left the unit. His evidence was that he went to a number of premises to search for Miss Cho. He thought he saw her in company with Mr Ku.
18 He returned to the home where at about 6pm. Miss Cho saw him sitting in their car parked in the visitor’s carpark in the unit complex. The offender’s presence inside the car was also observed by another neighbour, Miss Sawa, at about 5:30pm on that day.
19 The evidence from the two witnesses was in conflict with that of the offender who said that he was standing outside the car because he had locked his car keys in the unit where the fire and other events ultimately took place.
20 After Miss Cho saw the offender they walked together into the unit and the offender closed and locked the front door behind them. He then asked her to go into the bedroom of the unit in which they had resided and locked the bedroom door behind them.
21 There was a considerable dispute in the trial about whether the offender also screwed into the frame of the door a screw which would prevent an exit from the premises. The offender was a handyman. He also entered the unit during the course of the afternoon and prior to Miss Cho’s arrival.
22 I find that, having previously prepared a place for the screw in the architrave of the door, the offender screwed it into the architrave of the door while the two parties were inside the bedroom. He had also hidden in the bedroom a 4 litre tin of paint thinner (which became exhibit 4 in the proceedings) under the bed in the bedroom.
23 Thereafter there was another argument about the parties’ relationship. I find that the offender did say to Miss Cho that he suspected her of a relationship with Mr Ku; further, that he insisted that she show him her underpants and that she did this at his direction. He was clearly fixated on her alleged affair.
24 There was then a discussion about the proposed separation and divorce in which Mr Park said that he didn’t want to get divorced and wanted to continue living with the victim. She said that she did not want that. I am satisfied that that angered the offender and led him to continue with the steps he had planned and pursued.
Offender’s manner and intentions
25 There was an almost ritualistic aspect of the choice offered to the victim. Her evidence that the offender’s voice was very calm at the time was chilling in its import. The victim stated at T9 L44:
“His voice was low but very strong and very firm, a very determined voice.”
26 I accept the evidence of Miss Cho and find that the offender did say “we either live together or die together. You choose. Do you want to die by being stabbed with a knife, or by fire?” or words to that effect.
Use of paint thinner
27 The offender then sprinkled paint thinner from a four litre tin which he had placed under the parties’ bed over her head and chest area. He also poured the paint thinner on top of the doona/blanket on the bed, the bed itself as well as on the carpet in the bedroom. He also then doused himself with some of the paint thinner.
28 There was also forensic evidence from the Division of Analytical Laboratories confirming that the content of the paint thinner contained the same constituent materials which were present in the clothing worn by the parties and discarded by them at various stages during the incident.
29 After being sprinkled with the paint thinner, the victim tried to take off some of her clothing and deposited her top in the ensuite bedroom putting on another top. Clearly the offender let her do this while the discussion ensued.
30 Miss Cho gave evidence that she had not seen the can of paint thinner in the premises before. During the trial various items of clothing were tendered which exhibited a strong smell of the paint thinner.
Prevention of escape
31 The victim then tried to get out of the premises by exiting through a glass siding door to a balcony. Her exit was obstructed by a stick or piece of wood in the rail of the balcony. The victim had previously tried to get out of the bedroom but was prevented from doing so by the screw in the doorframe. She said she had not seen that screw before, nor seen the offender put it there.
32 The victim had called out. Her calls were heard through the bathroom window apparently by the neighbours above (Mr and Mrs Trombaywalla) who then telephoned police. A “000” telephone recording was played to the jury and became Exhibit 8 in the trial. Mr and Mrs Trombaywalla gave evidence of hearing the fighting and screaming in another language.
Police actions
33 Fortunately, four police officers from the Parramatta Local Area Command, Constables Berea, Pasalic, Laura Hill, and Vanessa Jones, arrived very quickly. They were let into the premises of the main unit block. Those officers attempted to gain access to the front door of the unit but did not receive any response when they knocked on the door. When the police heard the yelling of a woman’s voice from inside the unit they attempted to kick the door open but were unable to succeed in gaining entry. They then went across a ledge through a ventilation window, across a roof and onto the balcony of the unit.
34 There, the four police officers involved, acted quickly and very efficiently both individually and as a team, in dealing with the situation which confronted them. Constables Pasalic and Berea climbed over another section of the roof to the units and then got onto the balcony of the unit. Constables Hill, and Jones went to different parts of the block of units to warn other residents and carry out other duties, in particular, in ensuring that a fire extinguisher was handed to Constables Pasalic and Berea. They were, at that stage, attempting to open the glass balcony sliding door to the unit which had a large vertical steel security door on the outside.
35 Constable Berea noticed the offender inside the room. At that stage Mr Park was not wearing a shirt. Constable Berea could smell the smell of paint thinner very strongly where he was. He yelled at Park to open the door. Constable Berea drew a pistol and pointed at Park who then started to open the closed door inside the room. Park thereafter pulled Miss Cho into and across the room towards the double bed in the bedroom.
36 Constable Berea saw Miss Cho attempting to stand up and get away from the bed. However, The offender grabbed her with both his arms around her waist and pulled her back down onto the bed. The police observed Park place his hand behind his head. Miss Cho’s evidence relating to that point in time was that she heard a sound like a ‘click, click, click’. That was clearly consistent with the ignition of a cigarette lighter which the offender had in his hand. The bed immediately erupted into flames. At that stage the victim began screaming and continued to struggle with the offender. He continued to hold her around the waist.
37 Constable Pasalic had a red fire extinguisher which he used to try and break the glass door -without success. An indication of the force required can be gleaned from the fact that Constable Pasalic was 6 foot 5 inches and 105 kilograms by weight. Constable Pasalic then used his police baton to smash the glass. Pieces of glass went onto both Constable Pasalic and Berea. They were able to break open the door to a sufficient extent to enable them to get access into the unit where there was a strong odour of chemicals. The fire from the doona was rapidly spreading. Constable Pasalic also saw power points in the unit sparking. He He took hold of the doona and tried to suffocate the flames but, being unable to fold it, carried it out to the balcony and threw it over the balcony. When the burning doona landed, Constable Hill kicked it away from the building.
38 At that stage, there were flames around both the offender and Miss Cho. Both police officers went out onto the balcony to get some fresh air. They then went back inside the bedroom and grabbed both the offender and Miss Cho and dragged them out onto the balcony. At that stage the offender was forced to the ground with Constable Pasalic restraining him.
39 Constable Berea used the fire extinguisher to extinguish most of the flames on the bed area at a time when he, Constable Berea, was having difficulty breathing. When Constable Berea went back onto the balcony, the flames reignited. Berea then took control of the offender and Constable Pasalic went back into the unit to try and extinguish the flames - again unsuccessfully.
40 The offender resisted the police in their attempts to restrain and handcuff him. They used capsicum spray to quieten the accused. At that stage Park still had his cigarette lighter in his hand. The offender was particularly resistant when attempts were made to take the cigarette lighter off him.
41 The temperature on the balcony was becoming unbearable. There was also a large volume of thick black smoke around, together with smashed glass from the balcony door. Constables Pasalic and Berea took both Miss Cho and Mr Park down a ladder which had been erected by fire brigade officers who had arrived at the scene. At that stage the roof of the unit was collapsing and flames were coming out of the door from the bedroom to the balcony.
42 Both constables had to decontaminate themselves from the effects of the capsicum spray, remnants of paint thinner and ash. They were taken to hospital.
43 These factual matters are relevant to the charges on the section 166 certificate.
Intervention by police
44 The offender used significant force in his attempt to resist the efforts of the two police officers to free Shook Hee Cho. The offender continued to resist the police efforts to save the victim after they had been dragged from the bed.
45 From the evidence of Constable Berea, 13/3/08 p. 209.13-.25
- “Q. Constable, you spoke about as you entered the bedroom you said that Mr Park and Miss Cho were on the bed and you said that Constable Pasalic hit Mr Cho with his batten and then you said you dragged them - sorry - you pushed them from the bed. What sort of force did you use at that stage?
A. I used a good deal of force, yes.
- Q. You spoke about trying to pull Miss Cho away from
Mr Park and you said that you grabbed her by the arms. At the time you were doing that what sort of force were you using?
A. I was using a great deal of force.”
46 From the evidence of Constable Pasalic, 13/3/08 p.233.53
- “ Q. You said that you had been trying to grab Park and Cho out of the unit after they moved from the bed you say that Constable Berea pushed them off the bed and then you were trying to drag them from the unit?
A. That is correct.
- Q. What sort of force were you using at that stage?
A. I was using all the force I had because we couldn’t breathe and basically it wasn’t like dragging one body, it was two bodies joined together and Mr Park was just not moving because originally we just wanted to take Miss Cho out but he was hanging onto her so we had to basically grab both of them and drag them out.”
47 The fact that Shook Hee Cho was not killed, and did not sustain any physical injuries was, in my view, solely due to the forceful intervention of the police officers.
Actions of police officers
48 I have set out the detail of the evidence and the facts which I have found. These findings are relevant to an assessment of the reality of what nearly happened as a result of the offender’s actions both to his wife and others. I also intend to bring the actions of the police to the attention of the relevant police authorities.
49 The four officers, namely, Constables Berea, Pasalic, Laura Hill, and Vanessa Jones were met by a locked door and relatively little to alert them to the potentially dangerous situation which was unfolding. A chronology of the short time which elapsed between when they were called at the police station, when they arrived and the actions they took makes it clear that what occurred was a highly professional and effective police response. They were able to quickly discern the attempted concealment of what was going on inside the unit. They took action which demonstrated considerable initiative and teamwork.
50 It was a tribute to the quick thinking and initiative of all four officers, and presumably their training, that they were able to prevent much more serious consequences to the victim and the offender as well as assisting in the containing of the fire within the unit.
51 What occurred thereafter on the balcony and in the unit was clearly a very dangerous situation for Constables Pasalic and Berea. In my view, they acted courageously in circumstances of considerable risk to themselves. That included the acts of breaking into the unit, particularly when their entry was obstructed, removing the burning doona/blanket, overcoming the offender and removing both the offender and the victim in circumstances where there was considerable smoke and fire and the smell of paint thinner.
52 Both Constables Pasalic and Berea were overcome by the smoke and smell and had to go out onto the balcony to get air. They then went back into the burning bedroom. The fire damage to the bedroom and the relevant areas of the unit showed the extent of the areas they had to confront. Constable Berea’s evidence set out the ferocity of the heat and flames.
53 Constables Hill and Jones also acted expeditiously and efficiently in ensuring that the units were vacated and, with the fire brigade officers, preventing the fire from spreading to other units in the complex which were occupied by residents. But for the police and the fire brigade, the offender’s premeditated actions could have had much more serious consequences.
54 None of the evidence given by the police was, in my view, either exaggerated or self-aggrandising. Their accounts are each consistent with relevant matters observed by all the other witnesses with the exception of the offender.
55 I specifically reject any suggestion that undue or unnecessary force was used by police officers in using their batons or indeed applying capsicum spray to the offender in their attempts to subdue him. He was clearly resisting any attempts to stop him from carrying out his intentions to burn his wife and himself to death in a locked bedroom.
56 Counsel for the offender also submits that the home of the victim was wrecked by fire and the prisoner’s conduct is responsible for that, “although in fairness it must be said that the police action in using a fire extinguisher only to smash glass and not to bring it inside was extraordinary and inept”. I reject this submission.
Subsequent events
57 After his removal from the unit, the offender was conveyed to the emergency department of Westmead Hospital. He was interviewed by a Korean-speaking resident doctor, Doctor Kang, at which time he said that he felt a great sense of betrayal by his wife, had been greatly distressed and angry, and that he wanted to end his life. At that time he denied trying to kill his wife or having any form of suicidal ideation prior to the event.
Alcohol consumption
58 There was some evidence that the offender and Miss Cho had consumed a relatively small amount of alcohol – approximately 3 glasses of wine – that had occurred earlier in the day, apparently around midday. An alcohol test was carried out in the early hours of the morning which, according to the evidence of Dr Kang, the admitting Korean-speaking medical registrar, recorded a nil reading.
Psychological/psychiatric condition
59 The offender was also examined by a psychiatric registrar in company with Dr Kang. That examination showed that the offender had no suicidal or homicidal ideation and scored 12 out of 12 for concentration. The offender was deemed fit for discharge.
60 In these circumstances I do not consider that there was any condition which was relevant to the assessment of his culpability nor such as to warrant any lessening of the requirements of personal and general deterrence as was referred to in Benitz v R (2006) 160 A Crim R 166.
61 Counsel for the offender submits that, to speak of general and specific deterrence in this case where there is such bizarre behaviour would be inappropriate and callous.
62 I disagree with this submission. In my view, the offender knew what he was doing and the circumstances of this offence require the imposition of a condign sentence specifically to reflect the principles of general and specific deterrence.
Pre-sentence report
63 A pre-sentence report was prepared by Shannan Mulligan of the Silverwater Office of the Probation and Parole Service.
64 It provided the following details in relation to the offender:-
65 Mr Park is the fourth of six children born and raised in Korea. He was raised in a wealthy family, his parents having operated their own agricultural business. Mr Park’s parents are both deceased and his eldest brother died from cancer shortly prior to the commission of his offences and subsequent entry into custody.
66 Mr Park arrived in Australia in August 1998 with his now ex-wife and the youngest of their three children. They remained in Australia for two years together, however, his wife subsequently returned to Korea reportedly due to her difficulties gaining command of the English language and her inability to operate her business affairs in Korea. They divorced shortly thereafter, with Mr Park returning briefly to Korea in order to finalise the legalities.
67 The offender’s son remained residing with him in Australia for approximately six months prior to returning to reside with his mother in Korea. The offender’s family members are mainly unaware of his incarceration.
68 Mr Park married Miss Cho in 2001. The couple have no children. The offender denied any history of domestic violence within this relationship.There is no evidence to the contrary although I note that the victim, after the earlier incident in late December, 2006, asked her neighbours to contact the police if they heard her screaming or calling out.
Education/Training/Employment
69 Mr Park completed his Higher School Certificate equivalent level of secondary education in Korea prior to undertaking four years of technical training in the car racing industry, which saw him travel to the USA and Japan. At the completion of his training program, he opened his own car mechanics workshop and owned a car racing team. He continued to travel with his employment. He is an educated and intelligent man with substantial experience in life and, it would seem, relationships.
70 After his arrival in Australia, Mr Park claimed to have invented and claimed intellectual property for the first battery driven car which he then sold to large chain stores in this country. He reported commencing his business in Australia at his residential property.
71 In addition, Mr Park was employed on a part-time basis with his wife in their cleaning company.
Factors related to offending: Emotional
72 The offender reported that his brother had died shortly prior to the offences. In addition, at the time of the commission of his offences, he reported that his mind was ‘complicated’, ‘saddened’ and ‘depressed’. He alleged that this was a result of his alleged discovery that his wife was in a relationship with a family friend, apparently witnessing their intimate liaisons on more than one occasion.
Alcohol and drug issues
73 Mr Park initially denied any problematic levels of alcohol consumption. However, when discussing the details of his offences, it became apparent that Mr Park had become reliant on alcohol in the lead-up to the offences.
74 Mr Park disclosed that in the months prior to the offences, having allegedly discovered his wife’s liaison, he had become reliant on alcohol (cask wine) to assist him in sleeping. He would consume between one and a half to three coffee mugs of wine on a daily basis.
Attitude to the offence
75 Whilst Mr Park stated that he accepted responsibility for his offences and reported that he ‘regrets’ all of his actions, he expressed his disagreement with many of the police facts and statements. Largely, he claimed the details contained in the police facts resulted from his wife’s statements and allegations, which he denied were wholly accurate.
76 Mr Park asserted that his wife alleged a history of arguments because she was looking for an excuse to terminate their relationship in order to continue her relationship with the family friend. The offender agreed that he had previously smashed the glass coffee table in their home, reporting that he was ‘ashamed’ with regard to his wife’s alleged relationship and the discovery that his wife had been carrying a mobile phone which she had promised she would no longer do after he had confronted her with regard to her friendship with the family friend.
77 Mr Park claimed that the victim had demanded ongoing financial support from him despite agreeing to divorce. He apparently agreed to provide this support and provided written confirmation of this to his partner that he would do so. He claimed that she then called him a ‘fool’ for agreeing to this, and he responded by smashing the table in question. Mr Park advised that he believed his relationship with his wife to be ‘sincere’ and ‘genuine’, and felt that his wife had taken advantage of him.
78 The offender denies having damaged his wife’s phone or disconnected the landline from the main wall unit. He claims that the mobile phone that was damaged in the lead-up to the main offences was in fact his own and not that belonging to his wife. He agreed that on 29 December 2006 he agreed to move out of the marital home and went on that date to alter the address on his main forms of identification to that of the couple’s work premises where two rooms were available for him to utilise.
79 Mr Park reported that on the day of the current offences, he had returned home to collect some belongings and, on his way there, had witnessed his wife and her alleged partner leaving the premises together. When questioned, she had lied to him as to her whereabouts and companion on that day.
80 Whilst the offender confirms that he had entered into the main bedroom in the unit to have a discussion, he denies having locked the door preventing his wife from exiting the room, claiming that she had done so herself in order to prevent her son from entering the bedroom and overhearing the discussion which was taking place should he return to the family home as scheduled.
81 In my view, that account is fanciful and a reflection of the offender’s continuing attempts to deny his responsibility for what occurred and to magnify his self-justification for his actions based on his perception of his wife’s behaviour.
82 The offender said that they entered the bedroom at exactly 6:15pm and the Police arrived at 8:20pm. He commented that it was ‘ridiculous’ to believe that he had spoken of wanting to die and asking his wife to choose the means by which they would die for this extended period. He claims that, instead, he had been attempting to persuade his wife to terminate her relationship with her boyfriend. Mr Park was adamant that he was not attempting to rekindle his own relationship with his wife, but rather was concerned with his wife’s reputation and the ensuing ramifications for their family – particularly in light of his step-son’s pending marriage. That appears to be at variance in some respects to the emphasis of the matters given to Dr Allnutt.
83 When questioned, the offender advised that the accelerant was paint thinner and was already in the bedroom of the home as he had been packing his belongings in preparation for moving them from the marital home. He was using the substance in order to remove some stains on the wall where the stereo speaker had been placed. Mr Park reported that he has the substance in the home and workplace as he uses it frequently to assist in removing from his clothing oil and grease stains associated with his work.
84 Mr Park disagreed with his wife’s statement that he had poured the accelerant over their respective bodies. He claimed that, during the discussion, he had felt embarrassed and had taken the can indicating his desire to commit suicide. His wife had then taken hold of the can and had been covered in the substance as they struggled together with the open can. He claimed that, if he had wanted to kill his wife, he wouldn’t have asked for her assistance in cleaning the thinner off them both.
85 He denied having grabbed his wife whilst holding the lighter and threatening to ignite the flame. Instead he claimed that he had the lighter as he is a smoker and that the victim had grabbed him due to her concern that he would ignite a fire. He stated, however, that he did not think about starting a fire and didn’t really want to kill himself but purely wanted her to change her mind about continuing with the relationship with her new partner.
86 Mr Park reported having been embarrassed by the arrival of the Police, having apparently had no previous police intervention in their relationship. He stated that in that instant when the police arrived he wanted to die by himself so he set the fire alight. He denied the police facts reporting that he continued to hold onto his wife and stated that the police witness accounts could not be true as the bedroom has three layers of curtain furnishings blocking the view.
87 Regardless, Mr Park said that he does ‘regret (the offences) very much’, in hindsight, stating that he should have stayed out of the matter of his wife’s alleged relationship after agreeing to the divorce. He stated that he loved his wife and that she had, throughout the duration of their marriage, been a good wife to him, so he wanted the best possible future for her.
88 In my view having reviewed all the evidence what expressions of remorse there are, are barely expressed, substantially qualified and only with a continuing sense of self-justification. His comments to his referees and to the authors of the various reports do not express real contrition as opposed to regret as to his current position.
Progress in custody
89 Since his entry into custody on 4 January 2007, the offender has not incurred any institutional misconduct charges, nor does he appear to have come to the adverse notice of Correctional Centre staff.
90 He is currently employed in the Textiles unit at the MRRC, Silverwater, as a machinist, having been entered on duty on 8 January 2007.
Psychiatric report
Psychiatric evidence
91 These proceedings were delayed to enable the defence to obtain a psychiatric report from Dr Stephen Allnutt, forensic psychiatrist. A report was prepared by Dr Allnutt dated 9 October 2008 became exhibit S2. His curriculum vitae was exhibit S12.
92 That report confirmed the following details based on his two interviews with the offender on 5 September and 5 October 2008. Dr Allnutt also gave detailed evidence.
Offender
93 The report noted that Mr Park’s brother died in December 2006 just prior to the incidents. That sudden death had depressed him and had been an additional stressor to his depression. Mr Park had attempted suicide on one prior occasion. He had had a stable parental and familial background. He had been married four times.
94 There had been no violence in the marriage to Miss Cho. The report confirms that Miss Cho had told him she wanted a divorce in July 2006 and that they had decided to separate on 9 October 2006. The report recounts the sense of betrayal and anger the offender said he felt based on what he thought was his wife’s affair.
95 When interviewed by Dr Allnutt, the offender denied any significant depressed symptoms or neurovegetative symptoms of depression, mania, or hypomania. There was no evidence of psychosis. He was cognitively intact. He was not and would not have been diagnosed with a personality disorder.
96 Dr Allnutt considered that he experienced a depressive episode in the context of the relationship breakdown. He “would have been in a highly aroused emotional state aggravated by underlying symptoms of a depressive disorder and his depression would have contributed to his vulnerability to the emergence of a suicidal and homicidal ideation at the time of the offence.”
Intent
97 Dr Allnutt thought that at the time the offender was suffering from a disease of the mind in that he was suffering a depressive disorder of clinical severity. However, in his oral evidence he qualified that diagnosis given different accounts and descriptions made of the events, the diagnosis immediately after the incident by the psychiatric registrar in company with a Korean speaking doctor and whether or not there was a prior, depressive history.
Suggestion of suicide pact
98 Dr Allnutt considered that the offender would have seen his situation as hopeless and a suicide pact as a being a way of dealing with his strong feelings of despair. That phrase ‘suicide pact’ was a summary by Dr Allnutt of his understanding of what the offender had thought rather than what the offender said.
99 That scenario is not consistent with the evidence given by the offender at the trial. In particular, there was no suggestion by him of a ‘suicide pact’ or of any relevant prior discussion leading to a suggestion that there was such a pact nor could one have been implied from any comments made by, or actions of, Miss Cho by any stretch of the imagination. Indeed, Miss Cho’s evidence was very much to the contrary.
100 In my view, having observed the offender giving his evidence he was very angry, determined and intended to kill Miss Cho. His thought processes may have been jumbled and disordered but he was clearly intending to do what he did – and planned to do. This was not an opportunistic matter nor a spur-of-the-moment eruption of rage.
Dr Allnutt: analysis
101 Dr Allnutt did not believe the offender suffered a defect of reasoning to the extent he would not have known the nature of what he was doing nor that he would not have been capable of knowing the wrongfulness of his actions.
102 Dr Allnutt had not been provided with any transcript from the trial. It does not appear that Dr Allnutt was informed that the offender was assessed by a psychiatric registrar within a short time of his admission to hospital immediately after the offence. Various scenarios from the trial were outlined to Dr Allnutt in the course of the sentencing proceedings.
Offender’s evidence
103 The offender gave evidence at the trial. He did not give evidence at the sentencing proceedings.
104 Three references were tendered (exhibits S9, S10, and S11) which suggested the events leading to the offender’s convictions were out of character.
Psychiatric evidence.
105 In this matter there is evidence from Dr Allnutt that Sang Jin PARK may be suffering from a depressive disorder at the time of the commission of these offences. There were no symptoms of depression when Dr Allnutt saw him.
Law
106 The role of a psychiatric condition on sentence were reviewed in Benitez v R [2006] NSWCCA 21 by Simpson J (Hunt AJA and Rothman J agreeing)
“36… For mental illness or a psychiatric condition to be relevant to sentencing it is not necessary that it be the cause of the commission of the crime. Indeed, authority suggests that it is not necessary that it be a cause of the crime. I refer to the decision of this Court in R v Fahda [1999] NSWCCA 267 at [40] – [48]. There reference was made to a number of authorities of which the following are, on this issue, relevant. In R v Letteri (unreported, NSWCCA, 18 March 1992), Badgery-Parker J said:
37 In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said:
“In each of those cases [which he had, in the preceding paragraph, cited], it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle .” (emphasis added)
“In truth, however, ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case . For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system .” (emphasis added)
38 A mental disorder such as the applicant’s depression was identified by Gleeson CJ in Engert as being part of the circumstances of the individual case. Generally speaking, the well-known authorities indicate that mental disorder may be relevant to the assessment of the offender’s culpability and to the level to which it is appropriate to give greater or lesser emphasis to principles of general or specific deterrence: see also R v Scognamiglio (1991) 56 A Crim R 81; Letteri ; R v Champion (1992) 64 A Crim R 244; R v Wright (1997) 93 A Crim R 48.
107 In this matter the Crown submission is that the offence involved premeditation and the offender would have been aware of the gravity of his actions. I accept that submission. I do not accept that the offender was suffering from a disease or condition of the mind which warrants any diminution of the principles of either general or specific deterrence.
Crimes Sentencing Procedure Act: Section 21A factors
Aggravating factors
Planning and premeditation
108 As I have indicated earlier, I find that there was a significant degree of planning and premeditation, albeit limited to the events of that day. I do not accept the evidence of the offender that he had the tin of thinner for the purpose of cleaning areas of the bedroom.
109 The offender was the victim’s husband. She was entitled to rely on him when he led her into the flat and the apartment. She was also entitled to rely on his representations that he would be leaving the premises in accordance with their agreement.
110 The offence was premeditated as the offender drilled a hole in the metal door frame on the day of the offence so the screw could be used to prevent any escape by the victim. [Transcript 10/3/08 p.9.25, and p.93.30 Shook Hee Cho, and 17/3/08 the offender p.478.29-480, p.485.13-.40]. The offender waited outside the premises for at least about a 30 minute period, sitting in his car, waiting for the victim. [12/3/08 p.169 Joanne Sawa cf. offender p500]. It is the submission of the Crown that this was done so that he could ensure that he was able to force Shook Hee Cho to enter the bedroom.
111 I agree with the Crown’s submission that Miss Cho was effectively trapped in the bedroom.
The degree of force
112 The offender used considerable force to drag Miss Cho to the bed, and to hold her there when he set alight the bedding. The evidence of Shook Hee Cho as to her efforts to get away from the offender when she was on the bed at p.18.23-30
“Q. What sort of force were you using?
I tried my best with all my might, with every strength that I had I was trying but then again he was trying to hold onto me as much as possible and then police came and helped me. So, of course, I was really struggling hard because as soon as I heard that click click noise and the police saying, “Shit”, I was frantically trying to sort of free myself from him.”
The offence occurred in the victim’s home
113 The fact that the offences occurred in the home of the victim is an aggravating factor: s.21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. This factor was introduced by the Crimes (Sentencing Procedure) Amendment Act 2007. In the second reading speech on 17th October 2007 the Attorney General, and Minister for Justice said:
“Item [3] also enacts section 21A (2) (eb). It will aggravate an offence that was committed within a victim's home or another person's home. This aggravating factor preserves the notion of sanctity of the home, whereby individuals are entitled to feel safe from harm of any kind. This protection should apply in any home. The courts have long recognised that it is an aggravating circumstance when victims are assaulted in their own homes. The Government takes the position that any offence committed in the home of the victim, even if it is also the home of the accused , or in the home of another person, violates that person's reasonable expectation of safety and security. However, when a crime is committed in, and from, the accused's own home—for example, if the offender is committing computer or fraud offences—and no other person is present, the aggravation will not apply.” (emphasis added).
Domestic background
114 What is of relevance are the principles set out in R v Macadam-Kellie [2001] NSWCCA 170 at [41]:
In The Queen v. Elphick [2000] NSWSC 977, I referred to the circumstances in which that offender killed his partner arising from his frustration and anger at his inability to have her conform to the course he wished her to take with her life and because she did not accord with what he wanted her to be like. I cited the remarks of Allen, J. in The Queen v. Cheung (CCA, unreported 11 December 1995):-
"There are those within the community whose approach to the relationship between a man and a woman is that if the man has what might be called a grand passion for the woman, which completely overwhelms him, there is somehow a degree of respectability in him giving vent to that grand passion by seeking to control the life of the woman against her will - indeed, even in an extreme case, taking her life if he believes that is what ought to be done.
There is no respectability in that at all. It is arrogance. I do accept that having such a grand passion, if it can be so called, can diminish, for sentencing, the importance of the element of personal deterrence. But it certainly does not diminish the importance of the element of general deterrence. Indeed, the very misconception that such a grand passion affords a degree of respectability to what otherwise is abhorrent makes it all the more important that, for the purpose of general deterrence, it be made perfectly clear that such an approach will not be tolerated in this civilised society."
115 Those comments are very much apposite in this case and in relation to this offender.
Offence committed without regard for public safety.
116 The offence in this matter involved setting a fire with the use of an accelerant within a residential apartment building at a time of day that it would be reasonable to expect that other residents would be present. The evidence in the trial was that people were present in at least three of the other apartments in the building. Mr Trombaywalla’s statement makes it clear that there was damage to his unit. Regardless of the offender’s views on Miss Cho, his actions constituted a blatant disregard of the interests of safety of those in the apartment block.
Mitigating factors
117 The offender had no relevant prior convictions. The references refer to his prior good character. Counsel for the offender also submits that the offender was a person of good character.
118 Although he admits feelings of ‘regret’ when being interviewed by the Probation and Parole Service, the offender showed little remorse for his actions. He continues to deny many of the police facts, as well as the accuracy of his wife’s allegations. It is also submitted that there are good prospects of rehabilitation. Given the qualified nature of the regret expressed, I do not think that there are any firm grounds for considering that the offender believes that he needs to change his behaviour.
119 The context of the deterioration of the relationship must be taken into account although it is clear that the offender had initially agreed to separate and move from the wife’s property. Further, the victim was not actually burnt as was the case in Rae [2001] NSWCCA 545 although the fact that that did not happen had nothing to do with the offender – rather he actively tried to resist the police in rescuing the victim – and he himself.
120 In these circumstances I do not think that either of these factors warrant other than a limited degree of mitigation of the penalty.
Consideration
121 In my view the evidence discloses considerable planning and premeditation on the part of the offender against the background of a marital separation where he had indicated his intention to separate physically from the victim and depart from her home.
122 The offender had an irrational, fixed and unshakeable view of that association and was determined to go ahead to do what he did. As has been noted elsewhere in these reasons, such relationships and liaisons were strongly denied by Miss Cho and there were inconsistencies and inaccuracies in the offender’s evidence as to what he said he saw and where.
123 The offender’s views of the wife’s alleged affair seem to have been magnified by the offender in his subsequent accounts given to Dr Allnutt and the author of the pre-sentence report. As part of that process, the offender has continued to minimise aspects of his conduct. eg., as to making threats or pouring the paint thinner over her let alone igniting her and the bedding and the unit as part of his intent to kill her.
124 Clearly the offender did not wish to separate despite his earlier agreement to do so and his participation in the joint arrangements to make alternative arrangements for the recording of his (new) address with various institutions. Although the victim clearly had some indication of the possibility of violence given the actions on the 29 December, 2006, she was entitled to rely on the offender’s comments and actions that the separation would proceed rather than being lured into the bedroom which they had both occupied the night before. The offender had turned that bedroom into a potential death trap.
125 That preparation had taken place over some period of time. The offender’s preparations included the removal of a flammable tin of paint thinner into the bedroom where it was hidden by him and the insertion of the screw to prevent Miss Cho’s exit from the room into which he had directed her.
126 There was some hesitation when the offender permitted Miss Cho to take off her shirt and put on another shirt not doused with paint thinner. Nevertheless, he proceeded with his plan at a time when he saw the police officers on the balcony. He did so by dragging his victim onto the bed which he then ignited. That was at a time when he was holding her close to him while he ignited the bed impregnated with the thinner, with the cigarette lighter which he held.
127 Put on behalf of the offender was that the victim did not suffer injuries of any great substance, being limited to essentially cuts and bruises which were substantially attributable to the method of her escape from the burning unit. While that is the case, the absence of any potentially fatal consequences resulted from the quick thinking and heroism of the police officers involved. It does not in my view diminish the criminality of the act of the offender and its intended consequences.
128 Counsel for the offender submits that the likelihood of the prisoner re-offending is nil. While the penalty will denounce the crime and thereby serve a tenet of the system of criminal justice, no practical purpose will be served. I disagree. There is a clear need for a condign sentence to be imposed as a matter of general deterrence, specifically, that there is no justification for any person, regardless of cultural background, to commit acts of violence in an attempt to intimidate persons in relationships from leaving those relationships. Further, that attempts to cause death by horrific means such as burning will be subject to very substantial penalties.
129 Counsel for the offender further submits that, even on the jury verdict, it must be recognised that accepting the prisoner intended to kill as found, he acted in a way which made it possible (at least) that his wife would survive (by lighting the doona away from the direction of her).
130 I do not accept this submission.
131 I take into account the offender’s depression as it has been outlined in Dr Allnutt’s report and as qualified by him in his oral evidence, particularly given the psychiatric evaluation which was carried out by the psychiatric registrar at the hospital immediately after the incident.
132 I find that the offender intended to murder Miss Cho in circumstances where he was mentally stable and not suffering from any degree of insanity.
Authorities
133 Against that background and in addition to the authorities referred to above, I have had regard to those set out in the publicly available sentencing benchbook and the Public Defender’s website to determine whether the sentence I am contemplating is within the range of my discretion having regard to the factors as I have found them to be as outlined.
134 The factors relevant in those authorities are the skill and determination of the attempt, the motive, premeditation, the likelihood of death and the injuries inflicted.
135 These authorities also make it clear that good character cannot be ignored but that the gravity of the crime may reduce the weight otherwise accorded to the offender’s subjective circumstances.
136 Two particular authorities of relevance are:
R v Rae [2001] NSWCCA 545 –
137 The offender pleaded guilty to causing grievous bodily harm to a Ms Mazzali (his former girlfriend) with intent to murder her. He had broken into Ms Mazzali’s flat and poured petrol all over her. He set her alight and she suffered burns to 93% of her body. A neighbour who tried to assist the victim also suffered burns to 10% of his body. The neighbour ran down and began pouring water over her and was joined by other residents. The offender went to Ms Mazzali’s flat which shortly after was seen to be ablaze. Whilst the victim was being doused with water, firstly in an attempt to put out the flames and then in an attempt to relieve her agony, the prisoner walked downstairs, stepped over the screaming woman and left the building. He later turned himself in to police.
138 On admission to hospital, it was not expected that the victim would live. She endured dreadful suffering and spent 13 months in hospital. She required a level of care for the rest of her life. The sentencing Judge found that the objective facts were criminally culpable to a very high degree. The attacks were deliberate and vicious.
139 Subjective features - The offender was young (33) at the time of the offence. He pleaded guilty, although the plea history was tortuous. He had no criminal antecedents. There was limited remorse. The offender was intelligent and accomplished. This was his first experience in full-time imprisonment.
140 The offender there was sentenced to 19 years and 8 months imprisonment with a non-parole period of 14 years and 9 months.
141 The maximum penalty for the offence in Rae was 25 years imprisonment – which is the same for the offence Mr Park is facing sentence for. However, Rae can be distinguished from the case at hand in that the injuries suffered by the victim were more substantial. In addition, that offender pleaded guilty to the offence, and received a discount.
Yun v R [2008] NSW CCA 114
142 Yun v R [2008] NSW CCA 114 involved a Korean offender with good subjective features and where there were indications of strong remorse and no likelihood of re-offending.
143 In this case, the offender was tried before a jury on one count of murder. He was found guilty and on 11 April 2006 His Honour Newman AJ sentenced the applicant to a term of imprisonment with a non-parole period of 20 years with a balance of term of 6 years and 8 months. This sentence was quashed on appeal, and in lieu thereof, the offender was sentenced to imprisonment with a non-parole period of 18 years with a balance of term of 6 years.
144 The facts of the matter briefly were as follows:
145 On 30 April 2003 the offender was celebrating his birthday at a unit where his mother, the deceased, and his wife resided. After consuming alcohol and eating food for some hours, the men left the unit to go to a local karaoke bar at Campsie. They visited a number of premises at which they consumed alcohol.
146 When the group left the last hotel or club, the deceased and the offender began to argue. The argument escalated into a fight. At one stage, the deceased left the area and returned with a round wooden stick. He began to strike the offender. Witnesses observed the fight with the offender punching and kicking the deceased, and later the deceased striking the offender with the stick. They began to move towards their residence, and by this time the deceased had thrown the stick away.
147 The deceased’s wife gave evidence that at about midnight the offender was struggling with his mother. He had a knife in his hand and appeared angry. He pushed his mother away saying “I will kill Sun Chul” – one of the names by which the deceased was known. The offender then left the unit through the front door.
148 The deceased’s wife followed the offender and by the time she reached the street she saw the offender, with a knife in his hand, grab the deceased’s arm saying “Old bro, are you dying? Are you dying?”. The deceased said “Please save me. Please get me to a hospital”. The deceased’s wife went to her husband’s assistance. While doing this she heard the applicant say “Older bro, please wake up”. The offender then arranged for a neighbour to call an ambulance.
149 Two other witnesses gave evidence that shortly before the deceased collapse, they saw him staggering towards their premises with the offender walking closely behind holding a knife and using it in a stabbing motion very close to the deceased’s body.
150 The deceased died shortly after his admission to Canterbury Hospital, as a consequence of suffering three stab wounds to the chest.
151 It was accepted, on appeal, that there was force in the Crown submission that the objective seriousness of this offence, given the applicant’s intent, the use of a weapon, and some level of premeditation is at the middle of the range for offences of this kind. There were, however, significant mitigating circumstances particularly those relating to remorse, the unlikelihood of re-offending and the fact that his time in prison will be more difficult because of his lack of family support.
152 It was in all these circumstances that the CCA was of the opinion that a head sentence of 24 years should be imposed with a non-parole period of 18 years.
153 Having considered the sentences imposed in Rae and Yun of this offence, I am of the view that the sentence I have proposed for Mr Park is well within the proper range of the sentence.
Intention: Planning and premeditation
154 The placement and use of the screw to prevent Miss Cho fleeing from the bedroom in circumstances where the balcony door had been blocked requiring the physical presence of two police officers to break through was also indicative of a substantive degree of planning and premeditation.
155 I find that the offender intended that they would both die. It was a situation where the victim was absolutely terrified. Had it not been for the quick-thinking and heroism of particularly Constables Pasalic and Berea and the fact that the victim had, prior to the event, alerted her neighbours to ring the emergency “000” number quickly- and that they did so - there may well have been much more serious consequences both to Miss Cho, the offender and other residents in the apartment block.
Property offence: Damage to property
156 In relation to the third count of maliciously damaging the room and furniture by fire it was clear that there was extensive damage to the bedroom of the unit as well as other parts of the unit. The destruction of the unit was evident from the photographs tendered at the trial, including the almost total destruction of the bed and surrounding areas, ceiling and the door and walls of the bedroom.
157 It was fortunate that the fire brigade were able to attend urgently, and in combination between the fire brigade and the police officers, that the fire did not spread to other units of the apartment block where there were other people at the time.
Criminality
158 In my view the attempt to set fire to Miss Cho with intent to murder her, given all the circumstances of the facts, was above a mid-range but below high range of criminality. I have taken into account in that regard particularly the background of the premeditation and planning as I have outlined them. Setting fire to a bed soaked with paint thinner on which the victim has been held with the clear intent to murder would have resulted in a particularly horrific form of death. That fear and terror was apparent in Miss Cho’s presentation when she gave her evidence in the trial some 15 months after the incident.
159 Similarly, I find that the criminality involved in the third count (malicious damage property) was also of mid-range criminality.
Standard non-parole period
160 A standard non-parole period of 10 years imprisonment has been established for this offence (count 1).
161 The approach to be adopted in these circumstances is to ask the question “are there reasons for not imposing the standard non-parole period?” – see R v Way [2004] 60 NSWLR 168 at 191-2; R v Pillay [2006] NSWCCA 402-25.
162 In determining that matter I need to consider the objective seriousness of the offence in the light of the facts including those matters which may explain why it was committed to see whether it falls into the mid-range of seriousness for an offence of this kind. Here I have found that the events constitute above mid-range to below high criminality.
163 I have also considered the circumstances of aggravation and of mitigation and those which apply to the particular offender as set out in the provisions of s21A of the Crimes (Sentencing Procedure) Act which I have detailed above.
Personal and subjective circumstances
164 The offender comes to this court with no prior convictions. The offence also occurred in the context of a domestic dispute where the offender had strongly held convictions about his wife’s association with another man and both parties came from a different cultural background.
165 However, the law in Australia is that the fact that offences are committed within a domestic environment does not, of itself, justify a different or more lenient approach to sentencing – particularly when the victims can be trapped within that environment rendering violent treatment of them more often continuing, long-lasting and insidious.
166 That is of relevance in this case where there had been a clear attempt by the victim to negotiate a separation which, as far as she was concerned, was to take effect when she went into her unit and the bedroom with the offender.
167 No cultural background reasons of pride or impact on family honour are acceptable to either explain, or diminish, what occurred or what was intended.
Reasons for departing from the standard non-parole period
168 Having considered all those matters and in particular the matters detailed above, in my view there are reasons for departing from the standard non-parole period given the facts and surrounding circumstances of the offence and the aggravating factors as I have found them to be, particularly the premeditation and planning involved, and the clear intention to cause death in a particularly horrific way, warrant the imposition of a sentence more than the reference point established by the standard non-parole period. I do not regard the mitigating factors such as the absence of prior convictions, his good character and the expressions of remorse as warranting a reduction in that sentence.
169 If I am wrong on that, having considered the matters set out in ss3A, 21A, 22, 22A, and 23 of the Crimes (Sentencing Procedure) Act, in my view, the benchmark established in the standard non-parole period does not provide a just and appropriate sentence having regard to all the circumstances of the offence and of the offender. This is not a case of selecting a starting point to add or subtract a figure as was referred to in Maxwell v R [2007] NSWCCA 304 and R v Yun [2008] NSW CCA 114 at [32].
Special circumstances
170 In my view there are special circumstances based on the offender’s age, the absence of any relevant prior convictions and his psychological condition at the time particularly given the circumstances of his brother’s death in the month prior. Moreover, his incarceration, given his extremely limited English and different cultural background and life experience would render his time in gaol more onerous than would normally be the case; put conversely, his rehabilitation is likely to be more effective once he was released into a setting where he is able to communicate with those offering treatment in a way which will be understandable and appropriate.
171 The Court of Criminal Appeal has expressed reservations as to whether a first time custodial experience is a factor relevant to special circumstances (see R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 per Spigelman CJ at [15], R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268 per Wood CJ at CL and Howie J at [10]-[11]) as well as Philipos [2008] NSWCCA 66 at [80]. Here what makes this matter somewhat different is that the offender has extremely limited English and that, among migrant groupings within the custodial setting, Korean is very much a minority group.
172 I consider that the other factors constitute special circumstances to warrant the offender being given a greater time than would normally be the case to be subject to supervision and assistance on his release from gaol. The statutory ratio should be varied to be one of two-thirds, meaning that the head sentence would then be one of 18 years imprisonment, and the non-parole period, 12 years imprisonment.
Totality
173 I also need to consider as part of this process from the point of view of the totality of the sentence is appropriate and would not impose a crushing burden on the offender.
174 There is no doubt that this is a significant sentence particularly where the offender comes to this court with no prior convictions. However, the circumstances as I have outlined, the maximum penalty imposed for the offence and the personal circumstances of the offender as well as all the factors I have listed above under the various provisions of the Crimes (Sentencing Procedure) Act warrant a condign sentence which particularly attract factors of general and specific deterrence.
Concurrency
175 In my view the sentence imposed in relation to count 3 should be served concurrently with count 1. It involved the same premises in which the events the subject of count 1 occurred.
176 However, there are different aspects of the criminality of the matter which relate to the consequences of setting fire to a room and furniture within a unit apartment building where there were a number of other residents.
177 While it may have been the case that the offender was aware that the children of the victim were not present in the premises. Nevertheless, there were clearly other people around and the fire in the room caused the evacuation of the unit building. However, particularly given the principles of totality to which I have referred, in my view it is appropriate that the sentence on this count be served concurrently with that imposed in relation to count one. There is a measure of leniency to the offender in this approach given the principles outlined by Howie J in R v Merrin [2007] NSW CCA 255 at [36] in considering the total criminality for all offences.
Likelihood of deportation
178 Put on his behalf is that by operation of the Migration Act the offender is liable for deportation and it must be assumed that he will be deported.
179 Counsel for the offender submits that the prisoner’s life has been destroyed; further, that at the end of a long, lonely and isolated prison sentence in prison with men with whom he has nothing in common and with whom he cannot communicate, he will be deported.
180 There is no evidence before me as to how the relevant discretions will be exercised. It may be so exercised to deport the offender but that is a discretionary matter under the Migration Act. In the ever-changing world of the Migration legislation and the administration of that legislation there is no certainty as to how that would operate in relation to this offender in the time periods outlined.
181 I have to sentence him on the basis of the evidence before me.
Sentencing options
182 When being interviewed by the Probation and Parole Service, Mr Park expressed concern about his age being an issue, when considering community-based sentencing options. He was also concerned about the effect it would have on his ability to undertake business plans. Appropriate arrangements can be made for the offender.
183 The offender was assessed for a low level of intervention by the Probation and Parole Service. The individualised case plan would include the following identified areas of criminogenic need:
· violence prevention/domestic violence where available.
· monitoring of AVO compliance;
· monitoring of alcohol consumption;
Those should be part of his conditions of parole.
184 The offender was assessed as suitable for a community service order, and eligible for a periodic detention order. Neither option is an appropriate penalty in these circumstances.
Commencement date
185 The offender was taken into custody on 4 January 2007. His imprisonment since that time has been solely referrable to this offence. The sentence should commence on and from that date.
Sentence
186 In relation to count 1 the offender is sentenced to a term of 18 years imprisonment commencing on and from 4 January 2007 and expiring on 3 January 2025, with a non-parole period of 12 years commencing on and from 4 January 2007 and expiring on 3 January 2019.
In relation to count 3 the offender is sentenced to a term of 2 years imprisonment commencing on and from 4 January 2007 and expiring on 3 January 2009, with a non-parole period of 16 months commencing on and from 4 January 2007 and expiring on 3 May 2008.
That sentence is to be served concurrently with the sentence in relation to count 1.
Recommendations as to parole
187 On his release to parole I recommend that the terms of the offender’s parole should include that he attend violence prevention, anger management and domestic violence programs.
At the conclusion of the proceedings the Crown sought the AVO orders set out below. This was not opposed by the offender’s counsel.
Accordingly I make the following orders, which are to be imposed for a period to extend to 5 years after the expiration of the non-parole period:
1. The offender must not assault, molest, harass, threaten or otherwise interfere with the protected person or a person with whom the protected person has a domestic relationship;
2. The offender must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship;
3. The offender must not stalk the protected person or a person with whom the protected person has a domestic relationship;
4. The offender must not enter the premises at which the protected person may from time to time reside or work, or other specified premises;
5. The offender must not approach or contact the protected person by any means whatsoever, except through the offender’s legal representative or as agreed in writing or as permitted by any order or directions under the Family Law Act 1975, for the purposes of counselling, conciliation, or mediation;
6. The offender must not destroy or deliberately damage or interfere with the property of the protected person.
Section 166 certificate
188 I dismiss the back-up charge of maliciously damage property by fire – H29203968 – sequence 3.
In relation to the three related offences, namely:-
a) H29203968 – sequence 4 – Resist officer in execution of duty, six months imprisonment to be served concurrently to commence on 4 January, 2007 and expire on 3 July, 2007;
b) H29203968 – sequence 5 – Maliciously destroy property; one months imprisonment to be served concurrently to commence on 4 January, 2007 and expire on 3 February, 2007;
c) H29203968 – sequence 6 – Intimidate with intent to cause fear of physical/mental harm - is dismissed.
Remarks on sentence
189 A copy of these remarks on sentence is to be provided to the New South Wales Commissioner of Police with my commendation of the bravery of Constables Pasalic and Berea and the teamwork and efficiency of Constables Pasalic, Berea, Laura Hill and Vanessa Jones.
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