Yun v R

In 2005, Gil Bum Yun (“the appellant”) stood trial for the murder of Sun Chun Zhe at Campsie on 1 May 2003. He was found guilty by a jury and was sentenced by Newman AJ to a non-parole period of 20 years imprisonment commencing on 9 May 2003, with an additional term of 6 years and 8 months imprisonment.

The appellant made an application to this Court for leave to appeal against the sentence: Yun v R [2008] NSWCCA 114. The appellant argued that the sentencing judge had erred in:

The latter of these propositions formed the primary basis upon which this Court concluded that there was error. The Court (Beazley JA (as her Honour then was) Barr J and Hoeben J (as his Honour then was) said (commencing at [31]):

In re-sentencing the appellant, the Court said the following (at [34]-[35]):

In 2014, the appellant made an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (“the CAR Act”) for an inquiry into his sentence (“the first application”). In advancing that application, the appellant submitted that:

The first application was dismissed by Hoeben CJ at CL: Application by Gil Bum Yun pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 824. His Honour said (commencing at [20]):

In 2017, following the decision of this Court in Buttrose v Attorney General of New South Wales [2015] NSWCA 221; (2015) 324 ALR 562, the appellant made a further application for an inquiry into his sentence (“the second application”). Johnson J granted the second application: Further Application by Gil Bum Yun pursuant to s. 78 Crimes (Appeal and Review) Act 2001 [2017] NSWCA 825. In doing so His Honour said (commencing at [53]):

The appellant now relies on a single ground of appeal, namely that he was sentenced by this Court contrary to the principles established in Muldrock.

Counsel for the appellant submitted that Muldrock error was apparent in this Court’s judgment in that the Court had:

Counsel for the appellant submitted that there was no basis on which to conclude that this Court had done anything other than apply the law as it was understood at the time, in accordance with the decision in Way. It was submitted that such a conclusion was fortified by the Court’s reference to, and reliance upon, the passages from the decision in Maxwell. Counsel submitted that in these circumstances, the only available conclusion was that the Court had sentenced the appellant on the basis that s. 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) imposed a form of mandatory process, and had concluded that the appellant’s offending attracted the application of the standard non-parole period because it was in the middle of the range of objective seriousness. This, it was submitted was clearly contrary to the decision in Muldrock.

Counsel for the appellant submitted that the Court’s erroneous application of the decision in Way was also demonstrated by what was described as the “neat arithmetic” of the appellant’s sentence. Counsel pointed out that the standard non-parole period for the offence of murder is 20 years imprisonment and that this Court set out its re-sentencing process in a single paragraph at [34]. It was submitted that the Court had assessed the objective seriousness of the offence at the middle of the range, took into account what it described as “significant mitigating circumstances”, and then imposed a non-parole period which reflected an offence at the mid-range of seriousness, reduced by an amount which reflected the presence of the mitigating factors to which the Court had referred.

It was further submitted that although the Court had disavowed using the standard non-parole period as a starting point, the arithmetic which was adopted was indicative of this Court having sentenced the appellant in a way which gave the standard non-parole period undue weight. This, it was submitted, reflected an approach which was contrary to the decision in Muldrock.

It was submitted that, contrary to the decision in Muldrock, this Court had erroneously taken into account the appellant’s intention when assessing the objective seriousness of his offending. It was submitted that intention, along with factors such as motivation, mental state, and mental illness or disability, were matters which were personal to the appellant and had no place in the consideration of the objective seriousness of his offending.

The effect of Counsel’s submissions was that a distinction was to be drawn between assessing the objective seriousness of an offence to which a standard non-parole period applies, and assessing the objective seriousness of every other offence. It was submitted that for the purposes of the former, only the physical acts of the offender, as well as the consequences of the offence, should be taken into account but that for the purposes of the latter, the assessment of objective seriousness was not so confined.

The Crown submitted that the appellant’s position was misconceived.

It was submitted that properly understood, this Court did not use the standard non-parole period as a starting point in determining the appellant’s sentence. It was submitted that a proper analysis of the Court’s reasons (at [35]) in fact reflected the Court having adopted an approach in which it had applied its instinctive synthesis, by taking into account a range of objective and subjective factors.

The Crown submitted that there was no support for the proposition that in sentencing the appellant, this Court must have started with the standard non-parole period, and then deducted two years to recognise subjective factors. It was submitted that such a proposition was contrary to the Court’s expressed reasoning, from which it was clear that the Court was at pains to eschew such an approach.

The Crown submitted that in sentencing for an offence of murder, factors such as intention necessarily form part of the objective circumstances of the offending. The Crown submitted that the position taken by the appellant reflected a misunderstanding of the decision in Muldrock (at [27]), as well as a manifest error in the proper approach to sentencing.

The Crown submitted that, contrary to the position advanced by the appellant, the assessment of objective seriousness in the sentencing process is not made solely for the purposes of giving meaningful content to the standard non-parole period. Rather, it was submitted that assessing objective seriousness is a matter which is fundamental to the sentencing exercise generally. It was submitted that in making that assessment in the present case, the appellant’s use of a weapon was not the only relevant factor, and that such factors necessarily included the appellant’s intention, his level of pre-meditation, and his motivation. The Crown submitted that the approach advanced by the appellant ran completely contrary to accepted sentencing practice in respect of cases involving murder.

In Way, this Court (Spigelman CJ, Wood CJ at CL and Simpson J) concluded (at 191; [117]-[118]) that s. 54B of the Sentencing Act required a sentencing judge to ask, in the first instance, whether there were reasons for not imposing the standard non-parole period, and that such question was to be answered by considering the objective seriousness of the offence, and the circumstances of aggravation and mitigation. In other words, the Court concluded that s. 54B required a two-tiered approach to sentencing.

In Muldrock the Full Bench of the High Court concluded that Way was wrongly decided in terms of the approach to be taken, by a sentencing court, to the application of s. 54B. In particular, the Court said (at [25]) that it was an error to characterise s. 54B(2) as being framed in mandatory terms, and that when sentencing for an offence to which a standard non-parole period applies, the court was not required to commence by asking whether there were reasons for not imposing the standard non-parole period, nor to proceed to an assessment of whether the offences fell within the mid-range of objective seriousness. The Court also said (at [26]) that it was a mistake to give primary, let alone determinative, significance to the prescribed standard non-parole period.

The effect of the High Court’s judgment in Muldrock is that the correct approach to sentencing an offender for an offence to which a standard non-parole period applies is that outlined by McHugh J in Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51], namely an approach which reflects a process of instinctive synthesis, by which the sentencing court:

In submitting that this Court had wrongly applied the decision in Way when sentencing the appellant, counsel relied upon the observations of Simpson JA (Beazley P and Adamson J agreed) in Aytugrul v R [2015] NSWCCA 139 at [21] where her Honour said:

In the earlier decision of Davis v R [2015] NSWCCA 90 her Honour had observed (at [33]):

The obvious force of her Honour’s observations must be recognised. However, whether a conclusion can be drawn that a sentencing judge did not sentence an offender according to the decision in Way must necessarily be determined by a careful examination of the reasons given at the time. In our view, when the reasons of this Court in sentencing the appellant are examined, such a conclusion can be drawn.

The error on the part of the sentencing judge which was identified at [31] of this Court’s judgment was that the sentencing judge appeared to have ordered a balance of term “as an afterthought” following his determination that the appropriate non-parole period was the standard non-parole period of 20 years. In other words, the Court found that the sentencing judge had given at least primary (if not determinative) significance to the standard non-parole period.

Having identified that error, the Court approached the determination of the appellant’s sentence in exactly the opposite way (at [35]), and in accordance with the approach subsequently approved in Muldrock. In this regard, we agree with the observations of Hoeben CJ at CL in his reasons for dismissing the first application at [22]. The approach adopted by this Court does not reflect primary or determinative significance having been given to the standard non-parole period. On the contrary, it reflects an application of the process of intuitive synthesis outlined at [20] above, in which the Court arrived at a sentence by taking into account the objective seriousness of the offending and the appellant’s subjective circumstances. So much is clear from the Court’s express reference (at [35]) to the sentence being imposed “in all of the circumstances”.

It follows that in our view no error is discernible on the first of the bases relied upon by the appellant.

As previously noted at [24] this Court identified, as the primary error, the impermissible use by the sentencing judge of the standard non-parole period as a starting point.

The application of a form of “neat” arithmetic in the course of imposing a sentence is capable of strengthening an inference that the standard non-parole period has been impermissibly used in that way: see for example Buttrose at [22]; Bolt v R [2012] NSWCCA 50 at [36] to [37]. However, for the reasons we have previously stated, the sentencing judge’s error was not repeated by this Court when it came to re-sentencing the appellant.

It follows that the fundamental basis on which the inference of error might be drawn as explained in Buttrose and Bolt is not made out.

The appellant’s submissions invite this Court to recognise a distinction between an assessment of the objective seriousness of an offence to which a standard non-parole period applies, and an assessment of the objective seriousness of every other offence. As we understand the appellant’s argument, this distinction is said to flow from the High Court’s judgment in Muldrock, in particular at [22] and [27]. At [22], the Court summarised this Court’s judgment in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131. At [27], the Court determined the proper approach to sentencing offenders under s. 54B(2):

Whilst in Way this Court included duress, provocation and robbery to feed a drug addiction as “matters of motivation”, the full relevance of that circumstance was set out in R v Henry [1999] NSWCCA 111; 46 NSWLR 346; 106 A Crim R 149 in the following terms by Wood CJ at CL (Spigelman CJ, Newman, Hulme, Simpson JJ agreeing) at [273]:

In R v Koloamatangi [2011] NSWCCA 288, Basten JA (Adams and Johnson JJ agreeing) observed at [18] to [21] that Muldrock limits the range of factors or considerations relevant to an assessment of objective seriousness. Basten JA went on to refer to his comments in Carlton v The Queen [2008] NSWCCA 244; (2008) 189 A Crim R 332, to the effect that the imprecision of “the middle of the range of objective seriousness” is a product of “the scope and variety of circumstances”. He noted that this can be relevant to an assessment of objective seriousness, and further noted that these comments did not appear to be inconsistent with Muldrock. Notably, his Honour did not go further and attempt to define the range of factors relevant to an assessment of objective seriousness since Muldrock.

If, as the appellant contends, Muldrock limits the range of relevant factors to the actus reus and the consequences of the offence, it is difficult to reconcile that very narrow range with Basten JA’s reference to the “scope and variety” of circumstances relevant to an assessment of objective seriousness. The physical acts and consequences of some standard non-parole period offences, by their very nature, do not demonstrate much “scope and variety”.

By way of example, the murder of a child carries a standard non-parole period of 25 years. An assessment of objective seriousness confined to the physical acts of the offender and the consequences would inevitably result in a very narrow band within which it would be necessary to identify “the middle of the range”. The consequences of the offence are the same in every case, that is; the death of the victim. However, the age of the victim (and any other vulnerability), and the relationship between the offender and the victim may also be relevant. Invariably, the offender occupies a position of trust, whether that be of a caregiver, parent or step-parent. The physical acts of the offender in such cases do not vary greatly. Death is commonly occasioned by the application of blunt force on one or more occasions.

Critically missing from an assessment conducted on this basis is whether the physical acts were carried out with the intention to inflict grievous bodily harm or with the intention to kill. That enquiry may involve broader considerations than the nature and number of assaults on the victim. It may extend to matters that are personal to the offender at the time of the offence, such as impaired intellectual functioning which, to paraphrase the Court in Way, affects the offender’s ability to exercise self-control.

The assessment of objective seriousness has always been “a critical component of the sentencing process”. Nothing in Muldrock suggests otherwise: R v Campbell [2014] NSWCCA 102 at [27] per Simpson J (Hall J agreeing). The intention of an offender has always been a significant factor in an assessment of objective seriousness: R v Ainsworth (1994) 76 A Crim R 127; R v Holton [2004] NSWCCA 214; (2004) 41 MVR 89 and Apps v R [2006] NSWCCA 290. The inclusion of that factor necessarily enlarges the range within which a given offence sits.

The High Court in Muldrock drew a distinction between “characteristics of the offender” and “matters personal to a particular offender” on the one hand, and “the nature of the offending” on the other. The latter expression is sufficiently broad to include the mens rea that accompanied the commission of the offence. It is not apt to describe an offender’s state of mind during the commission of an offence as a “characteristic” of the person or a “matter personal to” him or her. It is an integral part of the offender’s conduct that constitutes the offence.

It is also not correct to describe duress or provocation as a characteristic of the offender. Where such circumstances exist, they operate to partially excuse or justify the commission of the offence. In that regard, they are within “the nature of the offending”: per Price J (Campbell J agreeing) Williams v R [2012] NSWCCA 172 at [42]. Duress has always been considered relevant to an assessment of objective seriousness: Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365; Kuti v R [2012] NSWCCA 43; Lindsay v R [2012] NSWCCA 124; Cherdchoochatri v R [2013] NSWCCA 118; RCW v R (No. 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541.

Turning to where intellectual disability or mental illness are causally connected to the commission of the offence, it is acknowledged that mental illness may properly be described as a characteristic of an offender or a matter personal to an offender. In Subramaniam v R [2013] NSWCCA 159 Latham J said (Emmett JA and Simpson J agreeing):

In MDZ v R [2011] NSWCCA 243, Hall J (Tobias AJA and Johnson J agreeing) concluded at [67] that, in the light of Muldrock, “the mental condition” of the offender at the time of the offence was relevant to the objective seriousness of the offence. The sentence was imposed in the District Court prior to Muldrock. Hall J observed that in any event, it was necessary for the sentencing judge to determine the offender’s moral culpability in assessing the objective seriousness of the offence and that the offender’s mental health issues were relevant to that issue. The same approach, that is, that the mental condition of an offender is relevant to an assessment of moral culpability, was also taken in Ayshow v R [2011] NSWCCA 240.

MDZ and Ayshow, together with a number of Supreme Court sentencing decisions, were referred to by R A Hulme J in Yang v R [2012] NSWCCA 49, absent the necessity to decide the issue.

In Badans v R [2012] NSWCCA 97, Meagher JA (Hoeben and Rothman JJ agreeing) stated at [53]:

The reference to Muldrock at [22] is curious. That paragraph does no more than summarise this Court’s analysis in Way at [86] to [88]: Giang v R [2017] NSWCCA 25 at [32]. Since expressing that view, this Court has considered the issue further. Two members of the Court in Badans appear to have departed from the views expressed by Meagher JA. In Biddle v R [2017] NSWCCA 128 at [66] to [70] Hoeben CJ at CL observed (Rothman and Price JJ agreeing):

The issue in Biddle was whether the sentencing judge erred in failing to find that the offender’s mental illness was causally related to the commission of the offence. This Court held that no such error had been established, but took the opportunity to set out the relevant principles in light of the appellant’s counsel in Biddle submitting that it was necessary to take into account an offender’s mental illness when assessing the objective seriousness of an offence.

It is apparent that this Court has invariably determined since Muldrock (with the possible exception of Badans and Subramaniam) that an offender’s mental condition at the time of the commission of the offence is a critical component of “moral culpability” which in turn affects the assessment of “objective seriousness”. For these reasons, and in the absence of clear guidance from the High Court, the appellant’s contention that an assessment of objective seriousness of a standard non-parole period offence, post Muldrock, precludes consideration of the offender’s mental state, duress, provocation, and mental illness (where causally related to the commission of the offence) must be rejected.

We propose the following order:

CAMPBELL J: I agree with the order proposed by Latham and Bellew JJ. As their Honours’ comprehensive reasons make clear, the single ground of appeal of “Muldrock error” was supported by submissions falling into three categories. I agree with the joint reasons in respect of categories 1 and 2 relating to what was argued to be the erroneous application of the decision in R v Way, and the “neat arithmetic” of the sentence passed. I also agree with what their Honours have written about the third category, impermissibly taking into account matters personal to the applicant when assessing objective seriousness, down to and including [40], and the quote from Latham J’s judgment in Subramaniam. I would prefer to express in my own way the rest of my thinking which I believe is similar to that expressed in the balance of their Honours’ reasoning.

It must be accepted that when sentencing for Division 1A offences (at least those committed before the commencement of the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 (NSW)), there is a need for some purposes to distinguish between “characteristics of the offender”, on the one hand, and “the nature of the offending”, on the other. This distinction was important for the purpose of ss 54A and 54B as they formerly stood, which is the form applicable to the case at hand. (It remains important for the legislation in its current form.) It is well to bear in mind that s 54A(2) then provided, in part, “the standard non-parole period represents the non-parole period for an offence in the middle range of objective seriousness for offences” to which the Division applies. The unanimous High Court said (at 132 [27]):

As the joint reasons of Latham and Bellew JJ make clear, differences of opinion have arisen as to the matters covered by the expression “characteristics of the offender” which are to be eschewed when determining “the nature of the offending”. I accept the accuracy of the analysis of Latham and Bellew J summarised at [47] above. To the exceptions of Badans and Subramaniam, I would add GN v R [2012] NSWCCA 96 at [12] by Basten JA (Blanch J agreeing).

The reason why differences of opinion have arisen, with respect, is that the High Court did not precisely articulate the type of “facts, matters and circumstances” falling into each category. Reading the judgment as a whole, one is left with the impression that Mr Muldrock’s significant intellectual disability was treated as a “characteristic of the offender”, or a matter “personal to a particular offender”. As Hoeben CJ at CL pointed out in Biddle at [66], in Muldrock at [54] the High Court spoke of Mr Muldrock’s intellectual disability substantially lessening his moral culpability for the offence. And at [55], the Justices referred to the causal relation between his disability and the offending. The Justices also referred to his superficial understanding that it was wrong to engage in sexual contact with a child and that he told “childish lies” to shift blame. Their Honours said (at [55]) these “were not reasons to assess his criminality as significant”, inter alia. I confess it’s not clear to me whether their Honours were equating the significance of the criminality with the objective seriousness of the offence, or whether that was a conclusion derived from the synthesis of all of the facts, matters and circumstances bearing upon the judgment about the appropriate sentence to be imposed, including as one of those considerations the assessment of the objective seriousness of the offending. Nor is the relationship between an offender’s moral culpability and the objective seriousness of the offending stated.

In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 621 [57], a unanimous High Court distinguished between moral culpability and objective seriousness. Their Honours said:

As the plurality pointed out in Veen (No 2), the one relevant factor may have “two countervailing effects” (at 477).

The fundamental principle established by Muldrock is that, even in the case of offences to which Division 1A applies, an instinctive synthesis of all relevant facts, matters and circumstances is the only permissible approach to sentencing. This requires “the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed” (at 132 [29]). This being so, and bearing in mind that any single “fact, matter or circumstance” might be relevant for more than one purpose, it may make little sense to search for a bright line dividing the nature of the offending from circumstances personal to the offender.

I agree with Latham and Bellew JJ that there is a clear relationship between “moral culpability” and “objective seriousness” and the assessment of one may affect the assessment of the other. But they are not the same thing. A particular circumstance personal to the offender may reduce his or her moral culpability for what is clearly an objectively serious example of the type of offending under consideration. Such a conclusion does not necessarily lead to a reduced sentence; but it may.

It is not necessary for present purpose to decide whether the decision in The Queen v Kilic, especially at [18] – [19] (see [45] above), throws any light upon the distinction between the nature of the offending and the personal characteristics of the offender for the purpose of the application of Division 1A. The reference to “the nature of the crime and the circumstances of the criminal” in [18] somewhat strongly suggests that Kilic is addressing a quite separate point; it is concerned with the final judgment which is the product of the instinctive synthesis by which the sentence is fixed. This same judgment must be formed in every case whether Division 1A applies or not. I do not see any inconsistency between Muldrock at [27] and Kilic at [18] – [19]. They are concerned with different things.

Whatever should be derived from Muldrock at [27] – [29] about what is covered by the expressions “objective circumstances” and “personal characteristics” respectively, the thrust of the argument of Ms Roy of Counsel was that the mental element of murder fell into the category of a characteristic personal to the applicant rather than the category of the nature of the offending. With respect, this must clearly be wrong. There is no offending without the relevant mental element.

In any event, there is authority of this Court that the mental state of the offender at the time of the commission of the offence goes to objective seriousness: Subramaniam at [57]; SKA v R; R v SKA [2009] NSWCCA 186 at [134]. That SKA was decided before Muldrock does not lessen the force of Simpson J’s (as her Honour then was) analysis. Nor is it diminished by the consideration that her Honour’s reasoning involves a distillation of the detailed reasoning in R v Way. Her Honour was well aware of the need “to separate circumstances or features that were relevant to the objective gravity of the offence as distinct from the personal circumstances or features of the offender” for the purpose of Division 1A (SKA at [133]). Examples of personal circumstances, in her Honour’s judgment, included youth and being subject to prior sexual abuse. Such circumstances “impinge upon moral culpability” but do not affect the evaluation of objective seriousness of the offending (SKA at [135]).

Muldrock may be taken to have overruled the staged or stepped approach to sentencing for Division 1A offences summarised at 191 [117] – [121] of R v Way: Muldrock at 131 [25] and 132 [28]. It does not follow from this that everything said by this Court in R v Way, and in particular everything said about the interrelationship between “objective seriousness” and “matters personal to the offender”, should be taken to have been disapproved of by the High Court. I repeat, what the High Court overruled is the two-staged approach, because it tended to undermine the instinctive synthesis approach described by McHugh J in Markarian v the Queen (see [22] above by Latham and Bellew JJ). Had the Justices meant to be understood as disapproving of the analysis in R v Way at 186 [84] – 187 [87] – [88] they would have said so clearly.

For these reasons, I agree with the order proposed by Latham and Bellew JJ.