Yun v R - [2008] NSWCCA 114

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Yun v R [2008] NSWCCA 114

FILE NUMBER(S):
2005/2199

HEARING DATE(S):
26/05/2008

JUDGMENT DATE:
2 June 2008

PARTIES:
Gil Bum Yun - Applicant
Regina - Respondent Crown

JUDGMENT OF:
Beazley JA Barr J Hoeben J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2005/176

LOWER COURT JUDICIAL OFFICER:
Newman AJ

LOWER COURT DATE OF DECISION:
11/04/2006

LOWER COURT MEDIUM NEUTRAL CITATION:
[2006] NSWSC 258

COUNSEL:
Mr P Hamill SC - Applicant
Mr P Ingram - Respondent Crown

SOLICITORS:
Ren Zhou Lawyers - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

CATCHWORDS:
Sentence appeal - murder - application of standard minimum non-parole period - whether intent to kill alone is sufficient to take offence above the midrange of seriousness - error in using standard minimum non-parole period as the start point for fixing a sentence.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
Apps v Regina [2006] NSWCCA 290 at [49]
House v The King (1936) 55 CLR 499
Markarian v The Queen [2005) 79 ALJR 1048
Maxwell v R [2007] NSWCCA 304
Mulato v R [2006] NSWCCA 282
Reaburn v R [2007] NSWCCA 60
R v Hung Lo [2005] NSWCCA 436
R v Pellew [2004] NSWCCA 434
R v Sangalang [2005] NSWCCA 171
R v Way (2004) 60 NSWLR 168

TEXTS CITED:

DECISION:
Leave to appeal granted and appeal allowed.
The sentence imposed by Newman AJ on 11 April 2006 is quashed.
In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 18 years commencing 9 May 2003 and expiring on 8 May 2021 with a balance of term of 6 years expiring on 8 May 2027.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2199
BEAZLEY JA
BARR J
HOEBEN J
Monday, 2 June 2008

YUN, Gil Bum v R

Judgment

THE COURT:
Offence and sentence
Between 26 September and 20 October 2005 the applicant was tried by a jury before Newman AJ upon an indictment that pleaded a single count that on 1 May 2003 at Campsie the applicant murdered Sun Chun Zie. That count alleged a contravention of s18(1)(a) of the Crimes Act and attracted upon conviction a statutory maximum penalty of imprisonment for the term of the natural life of the applicant (s19A(1) and 19A(2) Crimes Act 1900). The offence also carried a standard minimum non-parole period of 20 years by reference to Item 1 of the table in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (the Act).
On 20 October 2005 the jury found the applicant guilty of murder. On 11 April 2006 his Honour sentenced the applicant to a term of imprisonment with a non-parole of 20 years commencing 9 May 2003 and expiring 8 May 2023 with a balance of term of 6 years and 8 months expiring on 8 January 2030.
The applicant seeks leave to appeal against that sentence.
Factual background
The deceased and his wife, Laner Jin, had moved into a flat at 2/14 Beaumont Street, Campsie about a month before the offence. At that time the applicant and his mother were already residing there. At all material times thereafter, the four resided at those premises.
On 30 April 2003 the applicant was celebrating his birthday. Initially those celebrations were held at the Beaumont Street unit. All the persons present were of Korean extraction. After consuming alcohol and eating food for some hours, the men left the unit to go to a local karaoke bar at Campsie. Thereafter, they visited a number of other premises at which they consumed alcohol.
His Honour was not able to make any precise finding as to the amount of time which the group spent drinking but concluded that the group, including the applicant and the deceased, had consumed a considerable amount of alcohol over a period of some six or seven hours.
When the group left the last hotel or club, one of them, Mr Kim, said that the deceased and the applicant began to argue. By the time the three of them reached Beaumont Street the argument had escalated into a fight. The fight initially involved the use of fists. The applicant, who was both younger and larger than the deceased, was winning that contest.
Eventually the deceased fell to the ground near the driveway to Mr Kim’s unit, which was at 6 Beaumont Street. When Mr Kim pushed the applicant away from the deceased, the deceased ran from the immediate area. Shortly thereafter the deceased returned carrying a round wooden stick roughly 50 centimetres in length. The deceased began to strike the applicant with the stick. Mr Kim attempted to intervene but himself suffered injuries.
The last time Mr Kim saw the deceased and the applicant they were moving towards their residence at 14 Beaumont Street. By this time the deceased had thrown the stick away.
Other witnesses heard shouting in the street in the Korean language. One of them heard:
“Today is my birthday, do you want to die today?”
Some of these persons observed the fight with the applicant punching and kicking the deceased and later the deceased striking the applicant with the stick.
The evidence of the deceased’s wife was that at about midnight she saw the applicant struggling with his mother. He had a knife in his hand and he appeared angry. He pushed his mother away and said “I will kill Sun Chul” – this being one of the names by which the deceased was known. The applicant then left the unit through the front door.
The deceased’s wife followed the applicant. By the time she reached the street she saw the applicant, with a knife in his hand, grab the deceased’s arm. The applicant said “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 so she heard the applicant say “Older bro, please wake up”. The applicant then arranged for a neighbour to call an ambulance.
Two other witnesses gave evidence that shortly before the deceased collapsed, they saw him staggering towards their premises with the applicant walking closely behind holding a knife and using it in a stabbing motion very close to the deceased’s body.
The deceased died shortly after his admission to Canterbury Hospital. The evidence of the forensic pathologist was that the deceased had died as a consequence of suffering three stab wounds to the chest, which was consistent with either three separate stabbings, or a knife having moved within his body three times during the struggle after an initial stabbing. A wound in the back of the deceased’s neck, which was consistent with having been inflicted by a knife, was also found. The pathologist found injuries to the deceased’s chest, including a broken rib and abrasions to various parts of his body, consistent with the deceased having been involved in an altercation.
During the trial the applicant admitted that he and the deceased had an argument, that he had obtained a knife and that it was the knife which had caused the wounds to the chest of the deceased. He also admitted that he was holding a knife at the time that the wounds were occasioned to the deceased’s chest. The applicant argued during the course of the trial that he had acted in self-defence, or that the stabbing had occurred accidentally. The jury’s verdict indicated that they rejected the applicant’s evidence on those matters.
His Honour found that prior to the stabbing of the deceased, the applicant had formed an intention to kill him. His Honour based that conclusion on the threats which the applicant had made and the fact that he had inflicted at least two stab wounds, ie in the chest and neck. His Honour found that the fact that the applicant was intoxicated at the time that the stabbing took place was of no assistance to him.
Remarks on sentence
His Honour having reviewed the facts said:
“24 Under the Crimes (Sentencing Procedure) Act 1999 to which I will hereafter make reference to as the Act, this crime having been committed after 1 February 2003, I am required to make an assessment of the objective seriousness of the offence in terms of a range of seriousness. In my view, the fact that the prisoner intended to kill the deceased, as I have found, places this crime somewhere between the midrange of seriousness and a higher range. The ramifications of this finding I will discuss later in these reasons.”
As foreshadowed, his Honour took that matter up later in his reasons:
“35 As I mentioned at the outset of these remarks, this case falls within the provisions of the Crimes (Sentencing Procedure) Act 1999, which apply to crimes committed after 1 February 2003. In particular Part 4 Division IA and sections 3A, 21A, 54A and 54B apply to the sentencing of this prisoner. These sections require the Court to determine first, whether the offences were in the midrange of objective seriousness or above that standard. The reason why this is so is because the Act created the concept of standard non-parole periods in this State. Under the legislation the standard non-parole period is applicable to offences which fall within the midrange of objective seriousness of an offence. As I have already stated, I have found that the commission of this crime falls somewhere between the midrange of objective seriousness and a higher category.”
It was against that background that his Honour reviewed the applicant’s subjective case. The applicant was born in China of Korean parents on 29 March 1973. Accordingly, he was 30 at the time of the offence and was 33 at the time of sentencing. The applicant entered Australia in 2000. His Honour noted that the applicant was an illegal immigrant, but otherwise had no regard to that fact. He noted that the applicant had no criminal record in Australia and in fact had worked hard as a tiler since his arrival.
His Honour accepted that the applicant was truly remorseful for his actions. In reaching that conclusion his Honour took into account the applicant’s actions after the offence and the evidence given by the applicant’s clergyman. The applicant had also paid a sum of money, of at least $8,000, to the deceased’s family as a recompense for his crime. The applicant provided a handwritten statement to the Court in which he expressed sorrow, not only for his actions in causing the death of the deceased but both sorrow and sympathy for the deceased’s wife and his family in China.
His Honour took into account that the applicant would experience hardship above the norm during imprisonment because he was a long way from his home in China and from his relations. He would therefore lack the support which many prisoners have from their family.
His Honour accepted the diagnosis of a psychologist, Ms Seidler, that the applicant was depressed following his incarceration. His Honour also accepted that the applicant was unlikely to re-offend on his release.
His Honour summarised the applicant’s positive subjective case as follows:
“34 In short, the prisoner presents as a person of prior good character who, prior to the commission of this offence, had during his time in this country worked hard and well as a tiler. He is not a person who is likely to re-offend. He is a person who will find incarceration more difficult than most for the reasons I have expressed and I accept that he is depressed as a consequence of his incarceration. Furthermore, as I have said, I accept that he is truly remorseful for his actions.”
His Honour then quoted from the decision of this Court in R v Pellew [2004] NSWCCA 434 and in particular the observations of Simpson J as to how sentencing judges should apply the legislation relating to standard non-parole periods. His Honour set out his conclusion as follows:
“38 Thus, in considering sentence, I have taken into account the mitigating factors in accordance with s 21A of the Act. However, having fully taken into account those matters, I am of the view that this is a case where the standard non-parole period should be applied. The matters in mitigation, in my view, are sufficient for me not to impose a sentence of greater severity than the standard non-parole period set out in the Act, namely, a non-parole period of 20 years. It follows that if the mitigating factors were not of the strength that I have found, the non-parole period which I would have set would have been longer than the standard period stipulated by the Act. I make this observation because of my finding that objectively this crime falls somewhere above the midrange in terms of culpability.”
Appeal and consideration
The applicant relied upon the following grounds of appeal:
Ground 1: The sentencing judge erred in holding that the case fell within the middle range of objective seriousness for the purposes of s54A of the Crimes (Sentencing Procedure) Act 1999 solely by reference to his finding that the applicant had formed an intention to kill.
Ground 2: The sentencing judge erred in failing to take into account the lack of planning, the lack of premeditation and the fact that the offence was not part of any organised criminal activity in coming to the conclusion that the offence fell within the middle range of objective seriousness for the purposes of s54A.
Ground 3: The sentencing judge erred in his approach to the application of the standard minimum non-parole period and in his application of sections 21A, 44 and 54A of the Crimes (Sentencing Procedure) Act 1999.
Ground 4: A different less severe sentence is warranted and ought to have been imposed.
It seems to us that the grounds of appeal raise different aspects of the same complaint. The applicant submits that his Honour wrongly applied the provisions of the Act insofar as they related to the imposition of a standard minimum non-parole period. Accordingly, it is convenient to deal with the four grounds of appeal together.
The applicant submitted that his Honour erred in his assessment of the objective seriousness of the offence at above the midrange for offences of this kind. The applicant submitted that the only reason offered by his Honour for that assessment was his finding as to intent, ie that at the relevant time the applicant had an intention to kill. The Court was referred to Apps v Regina [2006] NSWCCA 290 at [49] where Simpson J said:
“49 Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. Indeed, in Way, while the Court expressly alluded to mental states, it followed this by the parenthetical observation that “intention is more serious than recklessness”. However, of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the mid-range of seriousness. It is not the only circumstance relevant to that assessment. In this the submissions made on behalf of the applicant are correct.”
The Crown properly accepted that in focusing solely upon the question of the applicant’s intent when assessing objective seriousness for the purpose of considering the application of the standard minimum non-parole period, his Honour was in error. That concession having been made, however, the Crown submitted that although there was no deliberate planning or premeditation in the conventional sense, there had been a level of premeditation in that in the course of the altercation the applicant had obtained a knife from his unit and despite the objections of his mother, had returned to the street where he had left the deceased. There was also the aggravating feature that a knife was used in the murder. Taking those matters into account the Crown submitted that the correct characterisation by his Honour should have been an offence at the midrange of seriousness for offences of that kind. That being so, the Crown submitted that the Court would not interfere with the sentence.
It seems clear, not only from the statement of principle by Simpson J, but also from the facts of this case, that his Honour was in error when he assessed the level of seriousness of this offence at above the midrange. In exercising his discretion his Honour erred in only taking into account the applicant’s intent and by not having regard to the other factors which related to the commission of the offence. This is error of the kind referred to in House v The King (1936) 55 CLR 499.
Contrary to the submission made by the Crown, we are of the opinion that the error is of such a kind as would require the Court to intervene to quash the sentence and to re-sentence the applicant.
There is also considerable force in the applicant’s third ground of appeal. It is apparent from his Honour’s reasons that his Honour used as his start point in the sentencing process the standard non-parole period of 20 years. There is no indication in the judgment of his Honour having had regard to anything else. His Honour said nothing about an appropriate head sentence. There was no consideration of any balance between the head sentence and the non-parole period. His Honour’s choice of a balance of term after fixing the non-parole period almost appears as an afterthought without any reasoning being offered for it.
The Court is of the opinion that the error described by Howie J in Maxwell v R [2007] NSWCCA 304 has occurred here. In that case his Honour said:
“21         But the major difficulty with the passage is the manner in which the Judge applied the standard non-parole period. It has been stated on more than one occasion in this Court that it is not appropriate to use the standard non-parole period as a starting point to which discounts are added or from which they are subtracted: see Mulato v R [2006] NSWCCA 282 where Spigelman CJ, with whom Simpson J agreed, stated:
“[13] It is now well established that it is an error of principle to select a specific figure — whether that be a maximum sentence or a standard non parole period or a ‘subliminally derived figure’ (see Markarian [(2005) 79 ALJR 1048] at [39]) — and to add or subtract matters item by item in some sort of mathematical process. The reason that this approach constitutes legal error is because it impermissibly confines the sentencing discretion. Indeed, the use of the maximum sentence in such a manner was precisely the error identified by the High Court in Markarian.”
22           Later, after referring generally to R v Way (2004) 60 NSWLR 168, the Chief Justice stated:
“[17] In Way, the Court concluded:
[131] What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of the seriousness, and irrespective of whether the offender’s guilt was established after a trial or by a plea), at the standard non- parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act.
[18] This reasoning rejects the use of the standard non-parole period as a “starting point” or fulcrum for a mathematical process. Even where the offence attracts a standard non-parole period, because it is in the middle of the range of objective seriousness, error occurs whenever the standard non-parole is used as a “starting point” rather than as a “reference point”. (See R v Sangalang [2005] NSWCCA 171 esp at [19]–[24]; R v Hung Lo [2005] NSWCCA 436 at 159 A Crim R 71 esp at [64]–[71].) The description in AT supra at [36] of the maximum sentence as “a more appropriate start point“ should not be understood as indicating a different view.”
23           A similar error in applying the standard non-parole period was identified in Reaburn v R [2007] NSWCCA 60.”

It follows that this ground of appeal has also been made out.
Re-sentence
We accept that there is 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 are, however, as was submitted on behalf of the applicant, significant mitigating circumstances particularly those relating to remorse, the unlikelihood of re-offending and the fact that his time his time in prison will be more difficult because of his lack of family support.
In all the circumstances the Court is of the opinion that a head sentence of 24 years should be imposed with a non-parole period of 18 years.
The orders of the Court are:
(i) Leave to appeal granted and appeal allowed.
(ii) The sentence imposed by Newman AJ on 11 April 2006 is quashed.
(iii)In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 18 years commencing 9 May 2003 and expiring on 8 May 2021 with a balance of term of 6 years expiring on 8 May 2027.

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LAST UPDATED:
4 June 2008