Chung v R

THE COURT: The applicant was convicted by a jury of a charge contrary to the Crimes Act 1900 (NSW) (the Act), s 112(2) of breaking and entering a dwelling-house and committing a serious indictable offence, namely, intimidation, in circumstances of aggravation, in that he knew a person was in the place where the offence was committed.

The maximum penalty for the offence is 20 years imprisonment. The applicant was sentenced to imprisonment for 6 years with a non-parole period of 3 years and 6 months commencing on 16 October 2015.

The applicant seeks leave to appeal against conviction on the ground that the verdict of the jury was unreasonable and cannot be supported having regard to the evidence: Ground 1 in the notice of appeal. The applicant also seeks leave to appeal against sentence upon the following grounds (using the numbered grounds in the notice of appeal):

The applicant and the complainant, who were both born in Korea, were strangers. At the time of the offence, the applicant was in a relationship with a Ms Park. Ms Park claimed to have been owed approximately $300,000 by Mr Samuel Han, who is the complainant’s brother. The applicant was trying to assist Ms Park to recover the money.

Mr Samuel Han had resided for a time at the complainant’s home but as at 16 September 2012, the date of the offence, he no longer did so. There was no suggestion that the complainant knew of Ms Park’s claim that his brother owed her any money.

The front of the complainant’s dwelling had a lockable screen door and a deadbolted wooden door. On 16 September 2012, the complainant had returned home from church in the afternoon. He used a key to open the door. He closed the screen door but did not lock it. There was an issue at trial as to whether the wooden door was slightly ajar, or wide open.

The complainant’s two stepchildren were at home at the time but his wife was at work. The complainant was in his lounge room, which was just off the front entrance to the dwelling, at the computer.

The Crown case was that the applicant had rung the doorbell, had entered the dwelling-house without permission, asked the complainant whether he was “James” (the name of another brother of the complainant) and then demanded to know where “Sam” was. The applicant assaulted the complainant, kicking him in the stomach and punching him in the face. Both men fell to the floor and were wrestling with each other when, the complainant stated, the applicant pulled out a knife.

The complainant called out to his stepchildren. The children each saw the struggle taking place and went to their respective bedrooms and made Triple-0 calls. Neither child saw a knife but there was evidence that their view of the struggle was partially obscured by a sofa. The complainant’s wife and his two stepchildren said that they had not seen the knife that was used in the struggle before and that it was not the complainant’s knife.

The applicant’s case at trial was that he had rung the front doorbell to the dwelling-house and had entered in response to a voice inside calling out “[p]lease come in”, spoken in the Korean language. The applicant said that the complainant asked him “[who] are you, what is it about?”, to which he responded “I’m after Samuel Han”. The applicant said that the complainant asked “[w]hat for?” and that he explained that he needed “to get $300,000 from Samuel Han on my friend’s behalf”. The applicant said that the complainant then told him to get out and pushed him. The applicant pushed the complainant in response, at which point the complainant punched him in the face. The complainant pursued the applicant out of the house wielding a golf club.

The fight between the two men continued outside on the lawn. The complainant was wielding a golf club. The applicant gave evidence that there was a struggle over the golf club, at which point both men fell to the ground. The applicant said that he then tried to leave the premises but the complainant:

The police arrived fairly promptly and at a point when the two men were still struggling on the ground at the front of the house. Each man claimed he had thrown the knife over the fence. Both men had injuries, including head injuries, cuts and bruises and DNA evidence of both was found on the knife.

The applicant claimed that the verdict was unreasonable and could not be supported having regard to the evidence. The sole challenge made under this ground was as to the jury’s satisfaction that it had been established that the applicant had broken and entered the complainant’s home, ‘break and enter’ being an element of the offence charged.

The case was conducted on the basis that the outcome was dependent upon whether the jury accepted the evidence of the complainant or the evidence of the applicant. This was made clear in the trial judge’s summing up to the jury which, on this point, was in the following terms:

The applicant’s approach to the appeal against conviction was to isolate various parts of the complainant’s evidence in chief and to contrast that evidence with suggested inconsistencies in his cross-examination and, in respect of one matter, whether the complainant had made a prior inconsistent statement. The applicant contended that an examination of these inconsistencies would demonstrate that the complainant was an unreliable witness, such that his evidence should not have been accepted.

There were six categories of evidence isolated in this way. Those categories were as follows:

The applicant requires leave to appeal against conviction: Criminal Appeal Act 1912 (NSW), s 5(1)(b). The Court considers that leave to appeal should be refused. In coming to that determination, we have not considered it necessary to set out in these reasons each and every piece of evidence to which the applicant referred. The evidence was considered in detail during the course of the oral submissions.

In our opinion what the evidence demonstrates is that there were arguably some inconsistencies in portions of the complainant’s evidence, none of which were of any particular moment, and it was a matter for the jury to decide the evidence they accepted and the evidence they rejected.

To demonstrate why we have determined to refuse leave, we have chosen what might be thought to be the strongest examples of the inconsistencies upon which the appellant relied as follows.

A number of observations may be made about these examples of the evidence upon which the applicant relied. First, the complainant was giving his evidence through an interpreter. There was no evidence of who the interpreter was in the conference with the solicitor. At the time that the complainant made his statement to the police, the complainant’s stepson acted as interpreter. There is no evidence of the questions asked nor is there evidence of the accuracy of the translation.

It is apparent that, when consideration is given to the sequence of questions and answers given in respect of the knife, set out above, the complainant was attempting to explain in a narrative way what happened: a person came into his house; he saw a knife and in that regard, he explained that it was when the man kicked him and they were struggling that he saw it.

The inconsistencies that the applicant relies upon do not involve any stark withdrawal, if any withdrawal at all, from his essential version of the incident. To the extent that there was any divergence in the evidence in chief and the cross-examination, it does not touch upon the essential issue that was put in contest on this ground of appeal, namely, whether the applicant entered into the complainant’s home uninvited. The complainant said that he did not call out when the applicant rang the doorbell, “come in, come in”. He did not resile from that evidence at any time.

The Court reiterates the well-established principle of the criminal law that the assessment of the credibility and reliability of the evidence of witnesses is quintessentially one for a jury to determine: Atai v R [2014] NSWCCA 210 at [134].

In this case, we are satisfied that the appeal against conviction is without merit and that it is an appropriate case to refuse leave to appeal against conviction.

This ground was added by leave following the conclusion of the hearing and arose out of matters raised in the course of argument. As the resolution of this ground may have a bearing upon ground 2 (which asserts an error in respect of the findings of the sentencing judge as to the objective seriousness of the offending) it is appropriate to deal with it first.

The principal count in the indictment of which the applicant was found guilty by the jury was in the following terms:

That count alleged an offence contrary to s 112(2) of the Act. Section 112 is in the following terms:

The term “dwelling-house” is defined in s 4 of the Act in the following terms:

The sentencing judge said (inter alia) the following:

His Honour then said:

Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) is in (inter alia) the following terms:

The provisions of s 21A(2)(eb) were considered in Jonson v R [2016] NSWCCA 286. Bathurst CJ (with whom the other members of the Court agreed) concluded, at [40], that the section does not impose, as a pre-condition for its operation, that the offender be an intruder into the victim’s home (although on the facts of the present case that was obviously the position). His Honour rejected, at [50], the suggestion that there was a rule of law that the fact that the offence was committed in the victim’s home could only be an aggravating factor on sentence if the offender was an intruder.

The present ground raises the question whether, in the emphasised passage of that part of the remarks on sentence set out at [29] above, the sentencing judge was in breach of the suffix to s 21A(2) of the Sentencing Act, or otherwise ‘double counted’ the fact that the offending was committed in the victim’s home.

It was submitted that the applicant had gone to the premises because he wanted to ‘deal’ with a person whom he thought lived there. It was submitted that in these circumstances, having regard to the way in which the Crown put its case, it was an element of the offence that it was committed in the victim’s home.

In advancing these submissions, counsel for the applicant made reference to decisions of this Court in Palijan v R [2010] NSWCCA 142 and R v Bennett (2014) 245 A Crim R 1; [2014] NSWCCA 197. Counsel submitted that to the extent that these authorities ran contrary to the position advanced on behalf of the applicant in support of this ground, they should not be followed.

The Crown submitted that there was no error on the part of the sentencing judge. It was submitted that in both Palijan and Bennett, as well as in Smith v R [2013] NSWCCA 209, this Court had rejected the very proposition upon which this ground depended.

To the extent that the position advanced on behalf of the applicant mounted a challenge to the correctness of these decisions, the Crown submitted that this Court was bound to follow them unless positively satisfied they were plainly wrong. It was submitted that each of the decisions was correct.

In Palijan the applicant pleaded guilty to one count of aggravated breaking and entering and committing the serious indictable offence of intimidation in circumstances of aggravation, namely that he used corporal violence on the victim, contrary to s 112(2) of the Act. The facts were that prior to a period of incarceration, the applicant had been in an intimate relationship with the victim. Upon his release from custody, the applicant approached the victim, who indicated that she did not wish to have any contact with him. The applicant persisted in attempting to contact the victim by telephone, with the victim refusing to take his calls. The applicant then sent a text message to the victim, informing her that he was coming to her home and asking her to telephone him. She did not do so. The applicant forced entry into the victim’s home in her absence. Upon her arrival, the applicant appeared and produced a knife which he had obtained from the kitchen of the premises, following which he threatened the victim.

One of the grounds of appeal relied upon by the applicant in that case was that the sentencing judge had erred in finding that the offending was aggravated by the fact that the premises which were the subject of the break in were those of the victim. Barr AJ (with whom McClellan CJ at CL and Hislop J agreed) said:

In Smith, the applicant pleaded guilty to one count of aggravated breaking and entering a dwelling house and committing a serious indictable offence, namely intimidation, contrary to s 112(2) of the Act. The circumstance of aggravation was that he knew that persons were present within the dwelling house. The applicant and the victim had been in a domestic relationship which had broken down. The applicant forced entry into the premises of the victim and her partner, before threatening and assaulting the victim. R A Hulme J (with whom Leeming JA and Button J agreed) said:

In Bennett the respondent to the Crown appeal had known the victim for some time. They shared an interest in illicit drugs, the victim having previously supplied cannabis to the respondent from time to time. On the day of the offending the respondent consumed a significant quantity of alcohol before making attempts to contact the victim, with a view to obtaining a quantity of cannabis from him. A series of telephone calls from the respondent to the victim went unanswered, a circumstance which appeared to frustrate the respondent. In the company of another person, the respondent went to the victim’s premises. On arrival, the respondent banged on a door, before opening a glass sliding door to gain entry. He located the victim and began punching and threatening him. He pleaded guilty to an offence contrary to s 112(2) of the Act, the circumstances of aggravation being that he knew there were persons inside the dwelling-house. The sentencing judge declined to make a finding that the offence was committed in the victim’s home for the purposes of s 21A(2)(eb) of the Sentencing Act, on the basis that this was an element of the offence. The Crown argued that in doing so, his Honour had erred.

Simpson J (as her Honour then was) concluded that this ground should be upheld. In doing so, her Honour said the following:

Harrison J agreed with Simpson J.

Hall J reached a contrary view:

Having referred to the terms of the indictment, his Honour continued:

It is an error for a sentencing judge, when sentencing an offender, to take into account a circumstance of aggravation if that circumstance is an element of the offence: R v Johnson [2005] NSWCCA 186 at [20]-[26] per Hunt AJA (Hulme and Johnson JJ agreeing). That proposition is consistent with the terms of the suffix to s 21A(2) which is directed against having additional regard to an element of the offence as an aggravating factor: Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43 at [8] per Basten JA (Howie J agreeing).

The passage of the sentencing remarks set out at [29] above reflects two essential findings by the sentencing judge. The first was that the offending was aggravated by the fact that the applicant attacked the victim when he was armed. No complaint is made about that finding. The second, which is contained in the italicised portion of that passage, was that the offending was aggravated by the fact that it was committed in the home of the victim. That finding does not reflect error in the way suggested by counsel for the applicant. This is because the decisions in Palijan, Smith and Bennett discussed above stand as authority for the proposition that it is not an element of an offence contrary to s 112(2) that the premises which are the subject of the offending be those of the victim. Nothing put on behalf of the applicant supports a conclusion that those decisions are plainly wrong, and should not be followed.

Properly understood, what the sentencing judge did was to find that the factors in the passage set out in [29] above aggravated the offending, thus rendering it more serious than might otherwise have been the case. None of those factors were elements of the offence with which the applicant was charged. It follows that there was no double counting, and that the suffix to s 21A(2) was not infringed.

For all of those reasons, ground 2A is not made out.

His Honour recounted the facts of the offending (which are summarised at [4]-[12] above). He found that the applicant:

His Honour concluded that the applicant had gone to the premises to “find the man and seek his own revenge”. In reaching that conclusion, his Honour rejected a submission that the applicant had been motivated by misplaced altruism. He concluded that to describe the offending in that way failed to emphasise the seriousness of what had occurred.

Further, and as previously discussed in considering ground 2A, his Honour found that the offending was aggravated by the fact that the applicant had broken into the premises armed with a knife, and attacked the victim in his own home. His Honour also found that the offending was aggravated by being committed in the presence of a child.

In all of these circumstances, his Honour concluded that the offending was in the middle of the range of objective seriousness.

Whilst acknowledging the various aggravating features identified by the sentencing judge, counsel for the applicant pointed to a number of factors which, it was submitted, established error in his Honour’s assessment of the objective seriousness of the offending. Counsel relied, in particular, upon the fact that:

The Crown submitted that the assessment of the objective seriousness of offending is a matter which is classically within the discretion of a sentencing judge, and something with which this Court will be reluctant to interfere. The Crown pointed to the particular findings made by the sentencing judge and submitted that the verdict of the jury reflected a conclusion that the applicant had gone to the victim’s premises with the express intention of intimidating one of the occupants. In these circumstances it was submitted that any suggestion that the offending was not premeditated should be rejected. The Crown further submitted that the offending was not mitigated by the fact that the applicant may have been motivated by a desire to assist a third party.

In all of these circumstances, the Crown submitted that the finding of the sentencing judge as to the objective seriousness of the offending was entirely open.

This Court has observed on numerous occasions that it will be slow to set aside a finding in respect of the objective seriousness of particular offending which has been made by a sentencing judge in the exercise of his or her discretion: Mulato v R [2006] NSWCCA 282 at [37]; [46]-[47]; Ali v R [2010] NSWCCA 35 at [33]; Baines v R [2016] NSWCCA 132 at [15].

His Honour’s principal findings as to the objective seriousness of the applicant’s offending are set out at [50]-[52] above. Counsel for the applicant did not take issue with these (or any other) factual findings made by the sentencing judge. Viewed collectively, they support the conclusion reached by the sentencing judge as to the objective seriousness of the offending.

It follows that ground 2 is not made out.

The sentencing judge said:

Counsel for the applicant submitted that his Honour had erred by failing to quantify any discount that he had given to the applicant on account of his period on bail, and the delay in the progress of his trial. It was submitted that in these circumstances the applicant “simply did not know … what sentence his Honour was considering before taking these factors into account”.

The Crown submitted that although his Honour did not apply a discrete discount in respect of the two factors in question, it was evident from the passage of his Honour’s remarks on sentence at [60] above that he had taken each of those matters into account in determining sentence. It was submitted that the sentencing judge was not required to quantify a discount in circumstances where it was clear that he had taken these matters into account in the process of instinctive synthesis which was adopted.

The sentencing judge was not obliged to specify a discount for either of the matters referred to by counsel for the applicant. In R v Weismantel [2016] NSWCCA 204 R A Hulme J (with whom Beazley P and R S Hulme AJ agreed) observed:

In the earlier decision of Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188 to which his Honour referred, Simpson JA (with whom Hoeben CJ at CL and Price J agreed) observed:

Had the sentencing judge approached the matter in the way for which counsel for the applicant contended, it may well have led to error of the kind to which Simpson J referred in Flaherty, and to which R A Hulme J referred in Weismantel.

Ground 3 is not made out.

We have set out the circumstances of the offending at [4]-[9] above. His Honour’s findings as to those circumstances are set out at [50]-[53]. We have rejected the challenges made to those findings which were the subject of grounds 2 and 2A.

In terms of the applicant’s subjective case, his Honour found that the applicant:

In support of this ground, it was emphasised that the applicant:

Counsel took the Court to relevant sentencing statistics, and to a number of other judgments, an analysis of which was said to demonstrate the manifest excess of the sentence imposed. It was submitted, in particular, that the applicant’s age and prior good character, and the objective characteristics of the offending, warranted a sentence of substantially less than 6 years imprisonment.

The Crown submitted that the applicant’s offending was serious. The Crown emphasised the fact that the applicant had armed himself with a knife and attended the victim’s home for the express purpose of intimidating another person. The Crown pointed to the fact that the assault committed by the applicant was severe.

The Crown further submitted that the applicant’s motive, far from being a mitigating factor, was one which required denunciation, as well as both general and specific deterrence. It was submitted that neither the statistical analyses provided by the applicant, nor counsel’s reliance upon sentences which were imposed in other cases, supported a conclusion that the sentence was manifestly excessive.

Finally, the Crown pointed to the maximum penalty of 20 years imprisonment, and the standard non-parole period of 5 years imprisonment, as important guideposts in determining an appropriate sentence. Taking all of these factors into account, the Crown submitted that this ground was not made out.

In order to succeed on this ground, it is necessary for the applicant to establish that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 257; [2005] HCA 25. We have already set out the circumstances surrounding the offending, and the findings made by the sentencing judge, both as to the objective seriousness of the offending, and the applicant’s subjective circumstances.

As his Honour found, the applicant had a number of subjective factors operating in his favour. They included his age, along with the fact that he was properly regarded as a person of prior good character. A pre-sentence report noted that he had a partner and mature-age children, that he was gainfully employed at the time of the offending, and that he appeared to follow “pro-social pursuits”. The report recorded the applicant’s express acknowledgment that he should not have resorted to violence, and that he appeared to be regretful about his offending behaviour. There was also evidence of the applicant’s remorse, and his generally positive prospects of rehabilitation. The author of the pre-sentence report expressed the view that the applicant would benefit from a period of supervision, with a focus upon addressing issues of anger management. It is apparent that the sentencing judge had regard to all of these factors.

Conversely, the applicant’s offending was grave. Armed with a knife, he went to the victim’s premises and engaged in an act of serious violence. Moreover, the offending was not spontaneous and was aggravated by the various factors to which the sentencing judge referred, and in particular by the fact that it occurred in the victim’s home, a place where he was entitled to feel safe.

Counsel for the applicant emphasised that the applicant was motivated (at least in part) by a desire to assist someone else. In our view, that does not mitigate the offending. The more important consideration is that the applicant’s form of ‘assistance’ involved the commission of an act of serious violence. The applicant’s motivation is to be denounced, rather than regarded as a mitigating factor. Similarly, the fact that the offending was, in relative terms, of short duration is of little assistance to the applicant. For the time over which the incident did extend, it would have been frightening for the victim.

As we have noted, counsel for the applicant referred the Court to both sentencing statistics, and sentences imposed in cases which were said to involve ‘comparable’ offending. The principles governing the use of such material were summarised in MLP v R [2014] NSWCCA 183 at [41]-[44].

In the present case, neither the statistical materials, nor the cases to which the Court was referred, supports a conclusion that the sentence imposed is manifestly excessive. In particular, each and every one of the cases relied upon by the applicant are distinguishable on the fundamental basis that the offender in each of them pleaded guilty (in the majority of cases, at an early stage) and thus received the benefit of a substantial discount. In contrast in this case, the applicant chose to proceed to trial.

Moreover, it has been observed on numerous occasions that there is no single correct sentence. In Markarian Gleeson CJ, Gummow, Hayne and Callinan JJ explained, at [27], that:

Finally, we accept the Crown’s submission that the maximum penalty and standard non-parole period set by the Parliament are important guideposts in determining this ground.

Taking all of those matters into account, we are not persuaded that the sentence is properly regarded as manifestly excessive, in the sense of being unreasonable or plainly unjust.

It follows that this ground is not made out.

The Court makes the following orders: