Yun v R

Case [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

  1. 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).

  2. 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.

  3. The applicant seeks leave to appeal against that sentence.

    Factual background

  4. The deceased…

Continue reading Yun v R

Sign in free to access the full text

Details
AGLC
Yun v R [2008] NSWCCA 114
Case
[2008] NSWCCA 114
Decision Date

CaseChat Overview and Summary

In Yun v R, the applicant sought leave to appeal against his sentence for murder. The deceased and his wife had been residing in the same unit as the applicant and his mother. On the night of the incident, the applicant was celebrating his birthday with the group when an argument escalated into a physical fight. The deceased was later found dead, having been stabbed by the applicant. The applicant appealed against his sentence, arguing that the trial judge erred in applying the standard minimum non-parole period and in assessing the objective seriousness of the offence.

The legal issues before the court included whether the applicant's intention to kill alone was sufficient to place the offence above the midrange of seriousness, and whether the trial judge erred in using the standard minimum non-parole period as the starting point for fixing the sentence. The applicant contended that the trial judge did not adequately consider mitigating factors such as the lack of planning, premeditation, and absence of organised criminal activity. Additionally, the applicant argued that the standard minimum non-parole period should not have been applied as the starting point for sentencing, and that a lesser sentence was warranted.

The court found that the trial judge's assessment of the objective seriousness of the offence was flawed. While the intention to kill was a relevant consideration, it was not the sole factor in determining the seriousness of the crime. The court emphasised that other circumstances, such as the lack of planning and premeditation, should have been considered. Furthermore, the court held that the trial judge erred in using the standard minimum non-parole period as the starting point for sentencing. Instead, the court should have considered the full range of sentencing options and the specific circumstances of the case before arriving at an appropriate sentence.

The court granted the applicant leave to appeal, highlighting the importance of a comprehensive assessment of objective seriousness and the proper application of statutory sentencing guidelines. The case underscored the need for sentencing judges to consider all relevant mitigating and aggravating factors when determining an appropriate sentence for murder.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.”