Park v R

1. [1]

   PAYNE JA: I agree with Harrison J and with the additional remarks of R A Hulme J.

2. [2]

   HARRISON J: Tai Jin Park pleaded guilty on 1 February 2017 to the murder of Suyoung An between 18 August 2015 and 22 August 2015. He was sentenced by Latham J on 30 June 2017 to imprisonment for a term of 36 years commencing on 26 August 2015 and expiring on 25 August 2051 with a non-parole period of 27 years expiring on 25 August 2042. Mr Park appeals to this Court against the sentence imposed by her Honour upon the following grounds:

Facts

1. [3]

   The facts upon which Mr Park was sentenced are comprehensively set out between [4] and [35] in her Honour’s remarks on sentence. The presently relevant portions of those remarks are as follows:

2. [4]

   Mr Park was arrested on 24 August 2015 and participated in a recorded interview with the police. He denied attacking or injuring the victim. Mr Park was interviewed again the following day but exercised his right to silence. He was then charged with murder.

Ground 1

1. [5]

   Her Honour found that the offence was premeditated, as the following passage from her remarks on sentence reveals:

2. [6]

   Mr Park contended in this Court that her Honour’s finding was erroneous. He conceded that the offence was premeditated but challenged her Honour’s adjectival assessment of it as “significant”.

3. [7]

   In my opinion, her Honour’s assessment is unexceptionable. That is for the following reasons.

4. [8]

   The conversation on 10 August 2015 with Mr Kang in South Korea is arguably consistent with Mr Park having already decided to kill the deceased and take his money. Mr Park had never owned a car, as her Honour pointedly observed, and had no funds of his own at the time from which he could have sourced anything approaching thousands of dollars. The events that later occurred were entirely consistent with the conversation some week or so earlier. Indeed, as far as the evidence went, the conversation is otherwise inexplicable. Mr Park’s further dealings with Mr Kang, and his contact with another acquaintance thereafter indicating that he would be closing bank accounts and advertising “his” car for sale further support the proposition that Mr Park anticipated that he would shortly come into funds and have a car that he could sell. The subsequent sale of the deceased’s car assists the inference that his plan to kill the deceased had clearly predated the commencement of the period within which the murder later occurred.

5. [9]

   Mr Park’s withdrawals from the deceased’s bank account are also consistent with a pre-existing plan to kill him. Although the speed with which the first two withdrawals occurred, being in the early hours of the morning of 19 August 2015, might on one view suggest an opportunistic and unplanned killing, in which the murderer took advantage of a spontaneous crime, that could not have been so in the present case. That is because the withdrawals occurred at a teller machine in which Mr Park gained access to the account of the deceased using his PIN. Although Mr Park argued that he obtained the information about the PIN by chance, suggesting that he saw the deceased using the number and that he remembered the sequence, it was clearly open to her Honour to reject that as unlikely and to consider that he acquired the relevant number from the deceased by some more occult means with a view to using it after his death.

6. [10]

   In order to sell the deceased’s car, Mr Park effectively adopted the deceased’s identity and utilised the documents in the deceased’s possession, such as the registration papers and his driver licence, to do so. It is highly unlikely that Mr Park would have been speaking of selling the deceased’s car in the week or so beforehand if he had not at that early stage organised the acquisition of the necessary papers or had a reasonable expectation that he would have them. Perhaps most obviously, if Mr Park’s references to selling a car were in truth references to the deceased’s car, the sale of the vehicle would have been practically impossible or at least difficult if the owner were still alive and using it. The car was in fact finally sold on the afternoon of 19 August 2019 after a series of inquiries with dealers that would appear to have commenced only some four and a half hours beforehand. The manner in which this relatively sophisticated transaction occurred is arguably inconsistent with a spontaneous decision to offer the car for sale.

7. [11]

   On 20 August 2015, Mr Park somehow managed to withdraw the sum of $49,000 from the Commonwealth Bank. That transaction would necessarily have been an over-the-counter transaction with a teller. How Mr Park was in the circumstances able to effect it without raising any suspicion or closer examination by the bank is unknown. Within ten minutes of that transaction Mr Park had withdrawn a further $1,000 from a teller machine at the same bank.

8. [12]

   It is important to understand that her Honour’s comments and findings about the extent of Mr Park’s premeditation have to be considered in the context of the events that led to and culminated in the commission of the offence with which Mr Park was charged and to which he pleaded guilty. Her Honour’s assessment that there was a powerful case for Mr Park’s premeditation to a significant degree is not to be judged by reference to an empirical standard but by a consideration of what Mr Park himself did in the time period in question.

9. [13]

   Mr Park gave evidence at the sentencing proceedings at some length. In summary, his evidence was to the effect that a fight broke out between the two men when Mr Park returned from a trip to a convenience store to buy cigarettes. His evidence included the following answers:

10. [14]

    Mr Park then said that he became angry because his status as an unlawful resident in Australia had been revealed so that everything he had been telling the deceased “had been a lie that was exposed”. That included where he worked, what kind of visa he had, that he had a lot of money, and that he had been working in a restaurant to get a sponsor for his citizenship. He said that when these lies were exposed he was “fully angry that my life become – got busted”. He said the deceased thereafter talked down to him.

11. [15]

    Mr Park said that the fight continued for about thirty minutes. He said:

12. [16]

    Mr Park went on to say that he was “like really totally angry” and it “was out of control so I was thinking nothing really”. He also said he was panicking because he had lost control.

13. [17]

    If one were to accept this version of events it could support an inference or a finding that the death of the deceased arose as the result of Mr Park losing control in the way that he claimed and without premeditation. However, her Honour dealt with Mr Park’s version of what occurred at [46] of her remarks on sentence. Her conclusion was clearly open to her. This is apparent from what her Honour said in the following paragraphs:

14. [18]

    It is important to bear in mind the difference between premeditation to a significant degree on the one hand and the formation of a sophisticated and guileful plan on the other hand. It seems clear that Mr Park’s activities, including his conversations, that came to light after the murder were not performed by an offender with a keen eye for self-preservation. The conversation concerning the suitcase is perhaps the best example of this. However, as apparently guileless as Mr Park’s activities appeared to be, they are entirely consistent with a plan, formed well in advance, to murder the deceased and steal his assets. Her Honour’s rejection of Mr Park’s curious versions of what occurred is unexceptionable. Her Honour’s characterisation of Mr Park’s activities as consistent with premeditation to a significant degree is equally difficult to fault.

15. [19]

    I would reject ground 1.

Ground 2

1. [20]

   At [47] of her remarks on sentence her Honour said this:

2. [21]

   Mr Park contended that an offence involving premeditation, even premeditation for financial reward and involving a level of brutality does not necessarily elevate the objective seriousness of the offence above the mid-range. He relied upon a comparison with a series of cases in order to make good that submission.

3. [22]

   In R v Nguyen [2006] NSWSC 850, R S Hulme J sentenced an offender for murder after a trial. The motive for the crime could not be established but his Honour concluded that the offence was a premeditated and cold-blooded execution. His Honour concluded that the offence was above the middle range of objective seriousness and sentenced the offender to imprisonment for 31 years with a non-parole period of 23 years. On appeal, this Court found error in the assessment of objective seriousness: Nguyen v R (2007) 180 A Crim R 267; [2007] NSWCCA 363 at [138] – [144]. The offender was re-sentenced to a term of imprisonment of 27 years and 4 months with a non-parole period of 20 years.

4. [23]

   Smart AJ indicated at [143], with which Mason P and Adams J agreed, that an “intention to kill and premeditation are usual elements in a murder of mid range objective seriousness”. It may with respect have been the view of the Court that those elements were not unusual elements in a murder of that seriousness, but that is not the way in which it was expressed. Be that as it may, the case remains instructive for present purposes both with respect to the level of violence involved in the death of the victim and the sentence imposed by this Court in those circumstances.

5. [24]

   In R v Campbell [2010] NSWSC 995, Latham J sentenced the offender after trial to a term of imprisonment of 33 years with a non-parole period of 24 years. That was a case in which the offender pushed his then wife off a cliff during a planned camping trip in the Royal National Park. The offence involved a high level of planning and the hope of financial gain. At [43] her Honour said this:

6. [25]

   In R v Di Cianni and Pintabona [2013] NSWSC 1328, R S Hulme AJ sentenced the offender to an overall sentence of imprisonment for 34 years with a non-parole period of 30 years for two murders. His Honour sentenced the offender to individual sentences of imprisonment of 24 years partially accumulated. The offender was convicted after a trial of a highly planned murder of a business partner and the killing of that man’s brother so as to facilitate the former offence. His Honour found that both offences were marginally above the mid-range of objective seriousness:

7. [26]

   Mr Park also referred to R v Naismith [2000] NSWSC 1024 in which Dunford J sentenced an offender convicted after trial for two murders involving a plan borne of revenge concerned with drug dealings. Following the murders, the offender took the victims to nearby sand hills and burnt their bodies. His Honour imposed two wholly concurrent sentences of 33 years imprisonment with non-parole periods of 25 years. At [14] his Honour characterised the offences as “objectively very serious”. (The imposition of concurrent sentences for two murders is in any event a misapplication of the totality principle. The sentence for one murder clearly cannot ever contemplate the criminality in another murder).

8. [27]

   Mr Park also drew attention to R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979. In that case, Mr Rawlinson was sentenced after trial for murder to imprisonment for 36 years with a non-parole period of 27 years. The deceased was killed pursuant to a joint criminal enterprise that involved a plan to enter her home in suburban Corrimal while she was asleep upstairs and set her bedroom alight with the assistance of petrol that was ignited as the result of which she was incinerated. My view of the objective seriousness of that crime was described at [158]:

9. [28]

   More recently in R v Afu; R v Caleo (No 17) [2018] NSWSC 1127, R A Hulme J sentenced Mr Afu after trial to imprisonment for 20 years with a non-parole period of 15 years for murder. Whilst a feature of that case was the relevance of different sentencing patterns adopted at the time of the murder (1990), his Honour’s description of the objective seriousness of the crime is instructive:

10. [29]

    Mr Park contended that these cases are examples of premeditated murders of similar or greater seriousness than his offence in which the sentences imposed were less, and in some case markedly less, than the sentence imposed upon him. He challenges her Honour’s assessment of his crime as significantly above the mid-range of objective seriousness having regard to these comparisons. He submitted not merely by reference to these comparative cases but more generally, that the subject offence was not above the middle level of objective seriousness and certainly not significantly so as to elevate it into a category just below offences in the worst category requiring sentences of life imprisonment.

11. [30]

    The Crown in response referred to Lees v R [2019] NSWCCA 65 at [55]:

12. [31]

    To like effect in Salafia v R [2015] NSWCCA 141 at [90]:

13. [32]

    The Crown also very helpfully made reference to what Latham J herself had had to say in R v Wiggins [2018] NSWSC 1142, a case in which the offender was found guilty of the shooting murder of a person who he believed had been responsible for his friend’s death. He was sentenced to a non-parole period of imprisonment of 24 years and 6 months with a balance of term of 8 years and 6 months. Her Honour said this at [19]:

14. [33]

    Her Honour concluded in that case that the offence fell within the upper range of objective gravity.

15. [34]

    It is precisely because the assessment of the objective seriousness of an offence is an evaluative discretionary matter that reference to previous decisions in similar cases is so fraught with difficulties. As even the limited reference to the cases cited above shows, there does not appear to be any reliable relationship that can be observed to exist between an assessment of any particular degree of objective seriousness and the sentence imposed. Some cases described as well above the mid-range are associated with sentences that are smaller than the present case. Campbell is perhaps an important example of that. Correspondingly, many cases in which the facts appear to be the equivalent of the present case are described as in the mid-range of objective seriousness. Nguyen is an example of that, and yet the sentence ultimately imposed in Nguyen was not significantly dissimilar to the sentence imposed in Campbell.

16. [35]

    The manner in which her Honour expressed her assessment is necessarily imprecise. It is open to the interpretation that she found that it was above the mid-range, and not marginally so, but no higher than that; certainly not at or near the highest range of objective seriousness. Such an assessment was open to her Honour, although because minds may differ about assessments of this nature (within legitimate bounds), it would also have been open to her Honour to have found that the objective seriousness was within the mid-range.

17. [36]

    Accordingly, in the present case, it cannot be said that her Honour erroneously characterised the offence as significantly above the mid-range of objective seriousness. As the authorities make clear, that assessment is difficult to challenge given the idiosyncratic way in which judges are permitted to exercise their sentencing discretions. Having considered the facts in this case in detail, and accepting that every case of murder is serious, the comparative exercise that her Honour was required to undertake in order to assess where in the range of seriousness this case fell cannot be said to have miscarried. Without attempting to be prescriptive, factors that could be present in cases described as significantly above the mid-range might include gratuitous cruelty, contract killings, causing death in a way likely to cause excruciating pain or agony or particularly doing so in order that the process of dying occurs over an extended period or where the victim might have had undue time to contemplate the terror of what was coming. Her Honour found that the deceased was killed as the result of a vicious attack as he was pursued through almost every room in the house, as suggested by the presence of his blood throughout the premises. Her Honour’s opinion that the death of the deceased was committed in circumstances that elevate the offence committed by Mr Park to a level significantly beyond the mid-range of objective seriousness cannot therefore be criticised.

18. [37]

    This ground of appeal is not made out.

Ground 3

1. [38]

   However, I am of the view that her Honour’s sentence is manifestly excessive.

2. [39]

   It is unnecessary for present purposes to include specific or detailed references to the relevant authorities. It is uncontroversial that demonstration of manifest excess requires satisfaction that the sentence imposed is unreasonable or plainly unjust. I consider that Mr Park’s sentence was unreasonable and plainly unjust.

3. [40]

   Her Honour detailed Mr Park’s relevant subjective features in her remarks on sentence as follows:

4. [41]

   I consider that Mr Park’s relative youth, his complete absence of any criminal record, and his genuine remorse are factors militating in favour of a lesser period of imprisonment. Mr Park is also not characterised by her Honour as presenting a discernible prospect of future dangerousness although that remains to be seen. Her Honour considered that his rehabilitation prospects were moderate.

5. [42]

   It is clear that the starting point for her Honour’s consideration of Mr Park’s sentence was an undiscounted term of 40 years. The head sentence of 36 years after a 10 per cent discount for his plea remains above what I consider to be a reasonable or just sentence for this offence. A non-parole period of 27 years is significantly out of step with the sentence imposed by her Honour in Campbell. The sentence is the same as the sentence imposed upon Mr Rawlinson for a sophisticated plan with others to cause death, the terrifying circumstances of which are difficult to imagine.

6. [43]

   In my opinion, ground 3 is made out.

Resentence

1. [44]

   I am satisfied that some other sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912. Having regard to my conclusions, it is necessary that Mr Park be resentenced afresh in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

2. [45]

   I accept her Honour’s analysis of Mr Park’s subjective case. No submissions were received in this Court that her Honour’s findings in that respect were erroneous and I adopt them.

3. [46]

   In my opinion Mr Park’s offence is above the mid-range of objective seriousness for offences of murder. It was premeditated and planned, albeit somewhat haphazardly. The death of the deceased was violent but not in a way that sets it apart from cases coming before this Court with unfortunate regularity. Mr Park is from a non-English speaking background and the sentencing proceedings appear to confirm that his level of English is low. He might be expected to find that his time in an English speaking gaol will be more difficult as a result.

4. [47]

   Her Honour did not find special circumstances for the reasons that she explained. I would also adopt her Honour’s reasoning in that respect. I am correspondingly in no better position than her Honour to make an assessment of Mr Park’s prospects of rehabilitation. A discount of 10 per cent for the utilitarian value of the plea of guilty remains appropriate.

5. [48]

   The offence is in my view a proper vehicle for general deterrence. The fact that it was planned and perpetrated with a view to financial advantage is alone sufficient to require significant denunciation. Some degree of special deterrence is also appropriate having regard to the uncertain nature of Mr Park’s post-release prospects.

6. [49]

   In all of the circumstances I consider that the following orders should be made:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed upon Tai Jin Park by Latham J on 30 June 2017.

   4. (4)

      In lieu of the sentence imposed by Latham J, sentence Tai Jin Park to a non-parole period of imprisonment of 21 years and 6 months to date from 26 August 2015, expiring on 25 February 2037, with a balance of term of 7 years and 3 months expiring on 25 May 2044.

   5. (5)

      The first day upon which Tai Jin Park will become eligible for parole is 26 February 2037.

7. [50]

   R A HULME J: I agree with Harrison J.

8. [51]

   I wish to add a comment about one of the cases his Honour has mentioned, Nguyen v R (2007) 180 A Crim R 267; [2007] NSWCCA 363. Mr Park relied upon a statement there made by Smart AJ (at [143]): "An intention to kill and premeditation are usual elements in a murder of mid range objective seriousness".

9. [52]

   It is unfortunate that the statement has been taken out of context and has been misconstrued as indicating that the presence of these two matters indicates that a murder offence falls within the mid-range of objective seriousness. That may be the way R S Hulme AJ regarded the statement in his reference to it at [37] of his judgment in R v Di Cianni and Pintabona that Harrison J has set out above at [25].

10. [53]

    In the present case, Mr Park sought to characterise it as a statement that "offences of murder involving premeditation and an intention to kill are in the middle range" (10.5.19 at T6.20). But Smart AJ cannot be taken to have been conveying a proposition so broad. The context in which he made the statement indicates that he was not. That context indicates that the two features mentioned can be found in a middle of the range offence; in other words they are not unusual elements of such an offence. The fact that his Honour cannot have intended any more than that is exemplified by the fact that those features are also often part of the objective facts in offences in the worst case category.