R v Sang Jin Park - [2008] NSWDC 234

CITATION: R v Sang Jin Park [2008] NSWDC 234

HEARING DATE(S): 17/10/08

JUDGMENT DATE:
17 October 2008

JURISDICTION: 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 1999

CASES 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] NSWDC 234
Decision Date: 17 October 2008

CaseChat Overview and Summary

The case of R v Sang Jin Park was heard in an Australian court where the defendant, Sang Jin Park, faced charges related to an attempted murder of his wife through arson, malicious damage by fire with intent to cause bodily harm, and resisting police intervention. The case involved significant premeditation and planning, with no evidence of psychiatric conditions or defects in reasoning, though Park experienced a depressive episode. The offences were committed in the domestic sphere but without regard for public safety, and Park showed little remorse. The court was required to determine the appropriate sentences for these serious charges, considering the degree of premeditation, the force used, and the lack of prior convictions.

The legal issues the court needed to address included the assessment of the severity and intent behind the offences, the degree of premeditation, and the appropriate penalty considering the mitigating and aggravating factors. The court had to balance the gravity of the crimes against the lack of remorse and prior criminal history. The key consideration was the degree of force and planning involved, which indicated a high level of criminality, and the lack of any substantial mitigating factors apart from the depressive episode. The court also had to determine the non-parole periods for the sentences to ensure public safety and deterrence.

In delivering the judgment, the court acknowledged the significant planning and premeditation involved in the offences, placing the criminality above mid-range but below high range. The court sentenced Sang Jin Park to 18 years imprisonment for the attempt to murder, with a non-parole period of 12 years, and an additional 2 years for resisting police, to be served concurrently. The court dismissed other related charges due to insufficient evidence or concurrent sentencing. The final orders reflect the severity of the crimes, the lack of remorse, and the need for public protection.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sang Jin Park [2008] NSWDC 234
HEARING DATE(S):	17/10/08
JUDGMENT DATE:	17 October 2008
JURISDICTION:	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 1999
CASES 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…