Chung v Regina

COUNSEL: (A) W Terracini SC (C) Ms D Woodburne

SOLICITORS: (A) Greenfield Lawyers (C) S Kavanagh

McCLELLAN CJ at CL HISLOP J SMART AJ

Tuesday, 22 May 2007 Patrick CHUNG v Regina

JUDGMENT 1 McCLELLAN CJ at CL: It may be accepted that the breakdown of a relationship can lead to hurt and feelings of anger in one or both of the parties. Where a breakdown does occur adjustments will be necessary for all members of the family.

2 Notwithstanding the difficulties which the parties may experience, the law cannot allow a party to express their anger in physical violence. When, as happened in this case, that violence results in very significant injuries, a lengthy prison term is almost inevitable. A civilised society cannot tolerate its citizens expressing their feelings of anger and frustration through acts of violence upon others.

3 I agree with Smart AJ and the orders he proposes.

5 SMART AJ: The applicant, Patrick Chung, seeks leave to appeal against the sentences of imprisonment, imposed upon him after a trial on these offences: (a) break and enter a dwelling house - fixed term of 4 years from 6 July 2006 to 5 July 2010 (maximum penalty - 25 years imprisonment), and (b) maliciously inflict grievous bodily harm with intent - non-parole period of 10 years from 5 January 2007 to 4 January 2017 with a balance of term of 4 years expiring on 4 January 2021 (maximum penalty 25 years imprisonment) the offence attracts a standard non-parole period of 7 years imprisonment. 6 The total of the fixed term and non-parole period was 10½ years and the sentences overall totalled 14½ years.

7 Briefly put, the Crown case was that the applicant, knowing his ex-wife was at work and that a male friend of his wife, Mr Pan, was there forcefully broke into her apartment to gain access to his two daughters, in an uncontrollable rage savagely assaulted Mr Pan, caused severe injury to Mr Pan's right eye and enucleated his left eye resulting in Mr Pan enduring much pain and suffering and becoming totally blind. The jury by their verdicts of guilty accepted the Crown case. The applicant believed that his ex wife was having an affair with Mr Pan who was now looking after the applicant's daughters. The ex-wife and Mr Pan denied any improper or questionable conduct and any intimate relationship.

8 The full facts are somewhat more complicated and are taken principally from the sentencing remarks of the trial judge. There was no challenge to the judge's findings.

9 The applicant and Sally He were married and had two daughters. After he and his wife separated in January or February 2005 a custodial agreement was reached whereby the applicant had custody of their two daughters from Sunday until Tuesday and Ms He had the children for the remainder of the week.. That arrangement had been in place since March 2005. Prior to the separation the applicant and Ms He became acquainted with Mr Pan, the victim. She was a nurse and had cared for Mr Pan's elderly mother. When the marriage broke down, Ms He turned to Mr Pan for assistance. He was well known in the Chinese community for assisting needy members of the community through a corporation. It lent her a sum of money and assisted her to lease rental premises. The lease was in the name of Mr Pan as she did not have the necessary credit references. She called upon Mr Pan on occasion to assist her daughters with their homework. Her English was limited. The elder daughter said that he provided her with assistance and attended the Hurstville apartment on special occasions which she described as rare.

10 On Saturday, 7 January 2006 the elder daughter decided that she did not want to go to her father's home the following day and telephone calls were made to the applicant's mobile phone leaving messages to that effect. Further attempts to contact the applicant on the Sunday were unsuccessful. The applicant said that he did not receive any messages and that he was expecting the children to be dropped off at 8.30am in the normal course. When the children did not arrive he drove to the Hurstville apartment block, pressed the buzzer near the security door but no-one answered. His telephone calls to the apartment were not answered. He made contact with a woman who had in the past cared for the children, but they were not with her. He drove to one of the nursing homes where his ex wife worked, but could not see her car. He contacted her by telephone but could not extract from her the whereabouts of the children. He went to Earlwood Police Station, which was closed, and then to Marrickville Police Station. He spoke to Constable Hawes, whom he said, contacted his wife and his elder daughter and told him that he could go to the apartment. Const. Hawes declined to accompany the applicant to the apartment.

11 After Ms He had been telephoned she became concerned that questions might arise over her leaving the children alone in the apartment. She contacted Mr Pan and requested him to go and stay with the girls until the police arrived. There was some ambiguity in the elder daughter's evidence as to the time of Mr Pan's arrival but he was not at the apartment when Ms He left for work.

12 The applicant returned to the apartment block, gained entry via the then unlocked security door and went up to the apartment occupied by Ms He. He says that he knocked on the door but his elder daughter said that he banged on the door. The elder daughter opened the door but the safety chain was across the door.

13 The applicant and his elder daughter gave slightly different accounts of the conversation which followed. The judge found that at the time the applicant attended the apartment he knew that the elder daughter did not wish to go with him that day. The applicant said that when outside the door to the apartment he could not hear his younger daughter. The applicant forcibly broke into the apartment.

14 The judge said that the jury found, in accordance with the overwhelming weight of the evidence, that the applicant knew of the attendance of Mr Pan at the apartment prior to his (the applicant's) arrival there and that the applicant worked himself into a rage.

15 The judge held that on entering the apartment the applicant quickly went towards Mr Pan and in a fit of uncontrollable rage punched him. A fight ensued with the two men punching and clawing at each other's faces. While they were still standing the applicant inserted his finger into Mr Pan's right eye socket in an attempt to remove the eye, causing severe injury to that eye and eye socket. This caused severe injury and severe pain to Mr Pan. The judge found that the applicant attempted to injure Mr Pan's left eye while they were still standing. Mr Pan fell to the ground. The applicant also went (or fell) to the ground. Mr Pan was on his back with the applicant above him. The applicant continued his assaults upon Mr Pan's left eye, intent on removing it from its socket by the use of his fingers. The applicant, using considerable force, succeeded in gouging out the left eye. The applicant persisted despite Mr Pan's pleas to stop, the applicant stating "I will only go to gaol for a short time."

16 The judge held that it was open to the jury to find that the applicant attacked Mr Pan with intent to cause him really serious bodily injuries. It would have been surprising if the jury had not done so. The judge said, "He did not care about the consequences of his initial actions. He was intent on seeking revenge for a perceived wrong. His daughters were with Mr Pan and not him."

17 The judge found that the attack upon Mr Pan was savage and remorseless and that the assault was unrelenting until the applicant "realised the extent of the injuries he had caused, that is when he saw the extent of the blood over the victim and the floor, the walls, himself and he saw Mr Pan's eyeball lying on the carpet." The judge, after considering the undisputed medical evidence of the force required to damage the right eye and enucleate the left eyeball entirely, described the crime as one "of great brutality". As a result of the applicant's attack Mr Pan lost his left eye, lost the sight in his right eye and is totally blind. He suffered excruciating pain. He now depends on others to assist him with his daily living.

18 At the time of the assault Mr Pan was about 54 years of age and the applicant was 40, having been born on 7 July 1965.

19 The judge found that the further attack upon Mr Pan which resulted in the loss of the left eye amounted to gratuitous cruelty and was thus an aggravating factor; it being the only matter of aggravation.

20 In mitigation the judge took into account: (a) the applicant does not have any prior criminal antecedents (b) he is unlikely to re-offend (c) he has good prospects for rehabilitation having regard to his age and antecedents (d) there was minimal planning; the offences were opportunistic

(e) he co-operated with the police at the time of his arrest

(f) he made admissions during the record of interview.

21 The judge was not satisfied that the applicant was remorseful and contrite about the injuries he had inflicted on Mr Pan nor the latter's plight now that he had lost his sight. She commented that from the outset the applicant has attempted to lay the blame for the offences at the feet of Mr Pan. At the time of his arrest and during the record of interview the applicant blamed Mr Pan for ruining his life. The judge further commented that when giving evidence the applicant displayed great distress when speaking of the breakdown of his marriage but the same distress was not displayed when he was asked how he felt about the injuries he had inflicted upon the victim. The judge thought that his distress was as a result of facing a lengthy custodial sentence and losing access to his daughters.

22 The judge noted that the applicant was born in Vietnam and that his family migrated to Australia in 1979 and that he described his upbringing as caring and supportive. He had had a variety of jobs over the years. Despite the changes he seems to have been in virtually continuous employment. The judge took into account evidence and references that the applicant's actions were out of character.

23 It was held, correctly, that in this instance the offence of break, enter and inflict grievous bodily harm was not as serious as maliciously inflict grievous bodily harm with intent. She held that the former offence deserved punishment separate from the latter, but she was careful not to punish the offender twice as she recognised the common element of maliciously inflicting grievous bodily harm in both offences and that the offences were committed in the course of one criminal episode. She had regard to the principle of totality. She held there were differences in conduct involved in the two offences. The partial accumulation lengthened the overall period in prison by 6 months and the total sentences by the same period.

24 The judge held that the instant offence of maliciously inflicting grievous bodily harm with intent fell at the upper end of the scale of offences of this kind. She found special circumstances in that there would be a need for a lengthy period of supervised parole to assist the offender re-integrate into society, this was his first time in custody and there was a partial accumulation of the sentences.

Appeal Ground 1 - Her Honour Erred in Giving Little or No Weight to the Applicant's Prior Good Character.

25 The applicant relied on this passage in the sentencing remarks: "The offender has, as I have said, no prior criminal antecedents. References have been tendered that these offences are out of character with a man known to employers and friends as a kind and helpful person. His sister gave evidence that his actions were out of character. It of course goes without saying that there is always a first time that a person commits a crime and this just happens to be one of those occasions. Unfortunately his offending is not of a minor nature." 26 It can be accepted that the "otherwise good character" of a person found guilty of serious offences must be taken into account in the sentence imposed and that "good character" is not merely the absence of prior convictions but the person's general morally good character as distinct from that of a "morally neutral or bad" person. See Ryan v The Queen (1999) 198 CLR 267 at [23] and [25] per McHugh J, and at [67] and [68] per Gummow J and Melbourne v The Queen (1999) 198 CLR 1 at [23] per McHugh J.

27 The applicant complained that the judge made no findings as to what weight was given to the applicant's prior good character. It was further submitted that the judge when stating that "… there is always a first time that a person commits a crime and this just happened to be one of those occasions. Unfortunately his offending is not of a minor nature" fell into error and gave less weight to the applicant's prior good character because of the seriousness of the offence.

28 In my opinion the applicant has sought to deduce too much from the passage quoted earlier from the sentencing remarks..

29 It is true that the judge made no findings as to what weight was given to the applicant's prior good character. She took his prior good character into account remarking both upon the absence of any prior criminal antecedents and the effect of the references and the evidence before her. They pointed to positive good character. Later, she stated that she had regard to the objective seriousness of the offences and the offender's subjective features.

30 As the joint judgment of McHugh, Hayne and Callinan JJ pointed out in R v Pearce (1998) 194 CLR 610 at [46], sentencing is not a mathematical process. This was affirmed by McHugh J in Ryan at [33]. He pointed out that various factors have to be weighed and that the "otherwise good character" of the prisoner was one of them. It is a mitigating factor. He continued: "But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance." 31 In that case, speaking in the context of the sexual assault of young boys by a person in a position of trust and community confidence, McHugh J said: "The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process." 32 Some serious offences, for example murder, are committed by people without any previous convictions and who are persons of prior good character. An important and often a dominating factor is the gravity of the offences. 33 In the passage earlier quoted the judge was saying no more than the applicant was a person of prior good character who had committed very serious offences and that the gravity of the offences was the most important factor in the sentencing exercise she was undertaking. That is not objectionable.

34 The applicant's argument on analysis is that the length of the sentences bespeaks insufficient weight being given to the applicant's prior good character.

35 Even if, contrary to the evidence, there had been a relationship between Ms He and Mr Pan, the offences were of the gravest character.

36 Questions of weight are primarily for the sentencing judge and the circumstances in which matters of "weight" will justify intervention by an appellate Court are confined (per Spigelman CJ in R v Baker [2000] NSWCCA 185 at [11].

37 The Crown was prepared to accept the applicant's contention that the offence committed by the applicant was not in a category of case as to which the Courts have said that less weight should be given on sentence to evidence of good character.

38 The real difficulty which the applicant faces is the gravity of his criminality. His conduct towards Mr Pan was little short of barbarous and reminiscent of medieval times. When the gravity of the applicant's criminality is taken into account it cannot be said that insufficient weight was given to his prior good character. Appeal Ground 1 fails.

Appeal Ground 2 - The sentences imposed by her Honour are manifestly excessive. 39 The applicant submitted that the sentences imposed were so disproportionate to the circumstances in which the offence of maliciously inflict grievous bodily harm with intent occurred as to lead to the conclusion that the exercise of the sentencing discretion miscarried.

40 The applicant relied on the statistics as to manslaughter issued by the Judicial Commission, emphasising that the penalty imposed was over twice the mean of the sentences imposed for manslaughter. This is not a valid comparison. The focus should be on the facts of the present case. 41 Again the applicant relied on his prior good character during his 40 years. He pointed out that the offences occurred against the background of a marriage breakdown with minimal planning. It was submitted that the judge's description of the offences as "opportunistic" should be replaced by the word "spontaneous". The applicant emphasised the mitigating factors earlier narrated.

42 It was further submitted that the judge, while taking most of these matters into account failed to give all these matters sufficient weight so that her sentencing discretion miscarried to make the total sentence disproportionate to the circumstances of the offence, such disproportion resulting in the sentence imposed being unreasonable and unjust.

43 I am unable to accede to this submission. While the sentences in aggregate are stern the criminality on the applicant's part was so grave as to warrant them.

44 I do not doubt that the applicant was deeply affected by the breakdown of his marriage but his response in mounting such a ferocious attack on Mr Pan evinced a high order of criminality. Appeal Ground 2 fails.

45 Because of the length of the sentences I would grant leave to appeal but the appeal should be dismissed.

46 I propose the following orders: 1. Leave to appeal against sentence granted 2. Appeal against sentence dismissed

47 McCLELLAN CJ at CL: The orders of the court will be as proposed by Smart AJ. **********

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