James KANG and Chi Yeong YUN v Regina

Court of Criminal Appeal (NSW)|2006-05-03|Before: McClellan CJ, Hall J, Latham J, Clellan CJ

The applicant's case on sentence consisted of a number of testimonials together with the evidence of Mr Han. The applicant himself did not give evidence. Additionally, the presentence report in relation to this applicant was prepared without the benefit of a statement of facts. The report was based upon information provided by the applicant and the applicant's Senior Pastor at the Open Door Church. It related little more than the applicant's personal circumstances and his attitude towards the offence. Thus, his Honour appears to have said all that could be said in regard to the applicant's subjective case. 23 In the case of the applicant Kang, the Judge noted that he was 21 years of age at the time of sentence and had arrived in Australia in 1993 with his parents and young sister. It was further noted that he came from a supportive and loving family, was educated at high school and on one occasion was suspended for three days because of bullying behaviour. The information given to the Probation and Parole Service for the purposes of the presentence report was accepted by the Judge, as was the applicant's evidence as to his work experience and his attempts to further his employment prospects. Later, at page 6 his Honour notes that the applicant "has worked hard for his church devoting his weekends to it and teaching Bible studies to high school students. I accept that he is well regarded by his peers in the church." 24 The report of Dr Lennings and the tender of a number of testimonials in the applicant Kang's case were referred to by the Judge, although the contents of those documents were not extracted or summarised. However, it appears from Dr Lennings' report that all of the information he obtained, relative to this applicant's personal circumstances, was provided by the applicant himself. The Probation and Parole report was also prepared from information supplied by the applicant (excluding the depositions and police facts). The applicant's evidence before his Honour consisted largely of a repetition of the contents of all these documents. In short, there is no basis for concluding that his Honour overlooked any aspect of this applicant's subjective case.

(iii) The Judge Erred in Giving Insufficient Weight to Pre Sentence Custody in relation to General and Specific Deterrence. 25 This ground relies upon submissions made to the Judge by counsel then appearing for the applicants. Essentially, the submissions were that the arrest, charging and pre-sentence custody in each case had satisfied almost entirely the requirement that specific and general deterrence be reflected in the sentences imposed. Counsel maintained that the response to the incident by police and the courts and the consequent hardship, shame and embarrassment visited upon the applicants, had sent a salutary message to the Church community and the Korean community in which the applicants moved. For these reasons, and taking into account the applicants' subjective circumstances, there was ample scope, according to counsel, for the imposition of a non-custodial penalty or one of periodic detention. 26 I have already observed that his Honour made express reference to the pre-sentence custody in respect of each of the applicants. It is also apparent from a reading of the transcript of 28 July 2005 that his Honour was alive to the applicants' submissions in this respect and that he was troubled by the suggestion that general deterrence in particular could be wholly satisfied by the custodial history of the matter. His Honour accepted the submission that specific deterrence had been realised. The ultimate resolution of this issue found expression in the remarks on sentence at pp 8-10 :- Objectively, there can be no doubt that each of the prisoners has a very strong case subjectively for leniency and for the non imposition of a custodial sentence. However sad it may be that the elders of a community, be it religious or ethnic or both, together feel that the cultural values of their community are being eroded, whatever the reason, the steps that can be taken to reverse that imagined trend are limited to those that are legal. It cannot be countenanced that to try and protect those values that are treasured by the particular group that people be permitted to break the laws of our whole society. Women can no longer be coerced in this country by their elders beating them in the way this victim was beaten to try and make them conform to values which they do not regard as highly as do those elders. The victim is an adult able to make her own decisions. Two days later the prisoner Kang on his evidence, because the victim was not changing quickly enough, deliberately went to her home and smashed her portable CD player. This was done in my view to terrorise her and try to make her more compliant. While it is a well recognised part of pastoral care to try and ameliorate and stop unhappiness between members of a family group, and to try and uphold family values and respect for those values, it cannot be done in the way it was done in this case. The victim showed great courage in coming forward and complaining to the police. It must in my view be made clear that the type of conduct indulged in on this occasion for the reason advanced will be met by custodial sentences being imposed by the court. It is for this reason that in my opinion having considered all the options regarding sentence for this offence, taken in its context the evidence shows the seriousness that requires the imposition of a full-time custodial sentence. 27 These remarks are equally apposite to the Judge's assessment of the objective gravity of the offences and the alleged manifest excess of the sentences imposed. They demonstrate nonetheless that his Honour was of the view that the criminality inherent in the offences called for the imposition of a custodial sentence, notwithstanding powerful subjective features and some presentence custody, which may have contributed somewhat to the realisation of general deterrence. In my opinion, his Honour was entirely justified in his assessment of the objective gravity of the offences. Moreover, it was well within his Honour's sentencing discretion to determine that the presentence custody could not satisfy the need for general deterrence, nor sufficiently reflect the objective criminality of the offences. 28 Subject to a concession by the Crown on the hearing of the appeal as to the length of that custody in the case of the applicant Yun, this ground fails. That concession arose from a submission by counsel for the applicant Yun, drawing attention to the fact that the applicant did not enter bail when it was granted on 21 September 2004 . There were in fact six days of presentence custody between the grant of bail and the entry into bail, which was not taken into account on sentence. Accordingly, the applicant should receive the benefit of those six days.

(iv) The Judge Erred in Failing to be Satisfied that the Applicant Kang Would not Re-offend. 29 His Honour's finding in this respect should be placed in context. At page 6 of the remarks on sentence the following appears:- Two nights later [he] went to the home of the victim and because she was not changing her ways quickly enough, on his evidence deliberately in front of her smashed her CD player. This was no doubt done to underline the lesson of the earlier beating. It was after this incident that she went to the police. He is a young man, who it would appear is well capable of acts of violence. I am not prepared to say of his conduct that he is unlikely to offend again, but he obviously because of his age and background is a good prospect for rehabilitation. 30 The submission in support of this ground maintained that there was a fundamental inconsistency between a finding that the prospects of rehabilitation were "good" and a failure to be satisfied that the applicant would not reoffend. For my part, I see nothing inconsistent or remarkable in his Honour's observations. It should be borne in mind that the report under the hand of Dr Lennings included a representation by the applicant that "aggression is absolutely uncharacteristic of him". The applicant reported "no prior episodes of any violent behaviour" to Dr Lennings. These statements appear to be at odds with the applicant's own evidence in the course of the sentencing proceedings, wherein he acknowledged prior episodes of bullying at school. In those circumstances, his Honour was merely expressing a doubt that the applicant would refrain from violence in the future, whilst recognising that the applicant's youth and background militated against future criminal conduct. (v) Disparity between the Sentences Imposed on the Applicant Kang and the Co-Offender Lee Gave Rise to a Legitimate Sense of Grievance. 31 The sentence imposed on the co-offender Lee was one of six months imprisonment in respect of the assault occasioning actual bodily harm in company offence. The submission on this ground maintained that there was no relevant difference in the criminality demonstrated by the applicant and the co-offender Lee, or in the subjective case advanced on behalf of each of them, which could account for a difference in penalty as great as three months. In effect, the applicant submits that the sentence imposed for the destruction of property charge should have been wholly concurrent with the sentence imposed in respect of the assault charge. As to the exercise of the judge's discretion in determining the question of accumulation or concurrency, see below. 32 The roles played by each of the offenders in the commission of the offences warrants some attention. The Judge found that the applicant Kang took directions from the applicant Yun, insofar as the victim had rebuffed any approach by Yun to meet with him to discuss her behaviour, and the applicant Kang's relationship with the victim was critical to securing the victim's attendance at Waitara railway station, so that she might be taken to the meeting place which had been prearranged by the applicant Yun. The co-offender Lee was recruited by the applicant Kang because the former was licensed and had access to a vehicle, unlike the applicant Kang. Thus, there was a clear hierarchy in terms of the influence that was brought to bear upon the victim. The victim knew the applicant Yun as a friend of her parents and was already hostile towards him prior to the commission of the offences ; the victim had known the applicant Kang, who was relatively close in age to the victim, for a period of some three to four years prior to the commission of the offences ; the victim did not know the co-offender Lee (and he did not know the victim), whose role was initially no more than providing the means of transport. There was no substantial difference between the applicant Kang and the co-offender Lee in terms of the physical assaults each of them perpetrated upon the victim. 33 Both Kang and Lee (aged 21 and 22 years respectively) were members of the Open Door Church and subject to the supervision of the applicant Yun. Neither had any criminal history and were otherwise of good character. The Judge also found, consistent with the finding made in relation to the applicant Kang, that the contrition demonstrated by the co-offender Lee was tempered by a less than honest account of the extent of his involvement in the principle offence. However, the Judge found that the co-offender Lee was unlikely to reoffend, whereas his Honour was unable to form that opinion in relation to the applicant Kang. 34 In my opinion, the Judge was entitled to differentiate between the applicant Kang and the co-offender Lee on the basis of their respective roles in securing the victim's attendance at the meeting with Yun, disregarding the commission of an additional offence by the applicant. Moreover, his Honour's assessment of the respective prospects of rehabilitation is one which should not lightly be set aside and provided a further basis for differentiation between them. The applicant has failed to demonstrate any error in his Honour's approach to sentence on this ground. (vi) The Sentences are outside the Appropriate Range for the Circumstances of the Particular Case and Outside Commonly Accepted Sentencing Patterns. (vii) The Sentences were Manifestly Excessive. 35 It is convenient to deal with these two grounds together. To the extent that the applicant's argue that the sentence imposed on each of them with respect to the assault charge is beyond the sentencing range for offences of that type, one only need consult the JIRS statistics to put that argument to rest. Half of the sentences imposed for like offences on indictment in the years between December 2001 and September 2005 were full-time custodial sentences, and 61% of those were sentences of 12 months imprisonment or less. 36 The applicants sought to rely upon a decision of this court in R v Davis [2004] NSWCCA 310 in order to demonstrate that the sentence imposed on each of the applicants was manifestly excessive. This decision was brought to the attention of the Judge in the course of submissions on sentence and distinguished by the Crown's representative. A sentence of four years imprisonment with a non parole period of nine months imposed upon the applicant in Davis on a charge carrying a maximum penalty of 25 years imprisonment was set aside by this Court and a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 was imposed in lieu. Ms Davis (aged 24) was one of four people who took and detained a young mother, who was related to her de facto spouse (a co-offender). The victim of the offence had moved to Inverell to live with a man who was considered disreputable and had abandoned her three-year old son. The party drove to Inverell from Armidale with the intention of returning her to her home. In the course of the journey back to Armidale, the victim was punched once to the side of the face by the applicant's de facto and kneed to the stomach by the applicant. Upon arrival, the applicant and her partner encouraged the victim to make phone calls to the police and to her family. 37 In the course of the judgment, Grove J (with whom Simpson J and Shaw J agreed) commented that, whilst "general deterrence was of importance and … the enforcement of cultural mores must occur within the confines of the law, [nonetheless] …. there was no real attempt to continue the detention … It does not undermine the seriousness of the breach of the law to observe that there were elements of farce to this offence". (pars 24, 25) 38 The applicant's submission on this ground seeks to draw a comparison between the circumstances in Davis and the circumstances of the instant matter, insofar as the applicant in Davis and the applicants before this Court were not motivated by malice, but by a belief in the values of obedience towards, and respect for one's cultural mores. Be that as it may, Davis was a very different case from the present, as the above summary makes clear. There was nothing farcical about the sustained and repeated assaults upon the victim in this matter over a period of some hours in a dark and lonely location. Colour photocopy photographs of the victim's injuries (Exhibit C2 before the Judge) were made available to the Court. The full extent of her injuries is apparent from the deep and extensive bruising over the victim's arms, legs and body. I do not find it at all surprising that his Honour rejected any analogy between the circumstances in Davis and the very serious offence of assault with which he was concerned. I am not persuaded that the sentence imposed on each of the applicants in respect of the assault charge was beyond the range appropriate to the circumstances of the offence, such that they indicate latent error. 39 It remains to deal with the issue of manifest excess in respect of the aggregate sentence imposed upon the applicant Kang. The applicant submits that the accumulation of the sentence imposed for the malicious destruction of property charge wholly upon the sentence imposed in respect of the assault charge has produced an aggregate sentence which is manifestly excessive in all the circumstances. I do not agree. His Honour was justified in finding that the destruction by the applicant of the victim's portable CD player "was done … to terrorise her and try to make her more compliant" (ROS p 9). As such, this offence represented a discrete form of criminality. The applicant has not demonstrated any error in the exercise of the Judge's discretion in this regard. 40 I return to the concession made by the Crown that a period of six days presentence custody was not taken into account when sentencing the applicant Yun. Accordingly I propose to grant leave, and allow the appeal to the extent necessary to adjust the sentence imposed upon him. 41 I propose the following orders :-

With respect to the applicant Kang, leave to appeal is granted but the appeal is dismissed.

With respect to the applicant Yun, leave to appeal is granted, the appeal is allowed. The sentence imposed on 26 August 2005 is quashed. The applicant is sentenced to 12 months imprisonment, to date from 18 June 2005, expiring 17 June 2006.

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CITATION: James KANG and Chi Yeong YUN v Regina [2006] NSWCCA 187

Markarian v The Queen [2005] HCA 25 CASES CITED: R v Gallagher (1991) 23 NSWL 220 R v Davis [2004] NSWCCA 310

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