R v Gil Bum YUN

Supreme Court of NSW|2006-04-11|Before: Newman AJ

CITATION : R v Gil Bum YUN [2006] NSWSC 258

CATCHWORDS : Criminal law - Murder - Standard non-parole period - Intent

Crimes Act (1900) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Evidence Act (1995)

R v GJ Davies [2004] NSWCCA 319 R v Henry (1999) 49 NSWLR 346 CASES CITED : R v Mirzaee [2004] NSWCCA 315 R v Pellew [2004] NSWCCA 434 R v Way (2004) NSWLR 168

PARTIES : Regina Gil Bum YUN

COUNSEL : Ms. E. Wilkins (Crown) Mr. K. Buckman (Prisoner)

SOLICITORS : Ms. S. Saill (Crown) Mr. J. Doolan (Prisoner)

11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: The prisoner, Gil Bum Yun, is to be sentenced today for the murder of Sun Chun Zhe, following his conviction for that crime by a jury on 20 October 2005. That conviction followed a trial which had commenced on 26 September 2005. 2 The maximum penalty prescribed by the Crimes Act 1900 for the crime of murder is life imprisonment. 3 Under the Crimes (Sentencing Procedure) Act 1999 the standard non-parole period of twenty years for murder is stipulated. I shall return to the provisions of that Act later in these remarks. 4 First, it is my task to find the objective facts relating to the subject crime. In so doing, I have applied the criminal standard of proof, namely, proof beyond reasonable doubt. The findings of fact which I make must not be inconsistent with the verdict returned by the jury. 5 I find the facts as follows:- 6 Approximately a month prior to the evening of 30 April 2003 and 1 May of that year the deceased and his wife, Laner Jin, had moved into a flat at 2/14 Beaumont Street, Campsie. At the time they moved into that flat, the prisoner and his mother, Choi Myung Ja, were already residing there. At all material times thereafter the four remained in residence at those premises. 7 On 30 April 2003 the prisoner was celebrating his birthday. Initially, those celebrations were held at the unit 2/14 Beaumont Street, Campsie. Not only were the residents of the unit present at that celebration, but also one Ki Dong Kim was present. All the persons I have named so far are of Korean extraction. For convenience I will refer to them by one name only during the course of these remarks. 8 After ingesting alcohol, as well as eating food, for some hours the men departed the unit to go to a local karaoke bar at Campsie. At those premises they continued to ingest alcohol. After spending some hours at the karaoke bar the group then moved to a local hotel or club. Once they had reached those premises they continued to consume alcohol and the prisoner and the deceased played poker machines. After spending some time at those premises the group left, with the intention of returning to their respective homes. 9 While the evidence given at the trial lacks sufficient clarity to make exact findings as to the time actually spent by the group drinking and eating at either 2/14 Beaumont Street, Campsie, the Karaoke bar or the hotel or club, I have no doubt that they ingested a considerable amount of alcohol over a period of some six or seven hours. 10 When the group left the hotel or club, one of them, Mr Ki Dong Kim, said that the deceased and the prisoner began to argue. His evidence was (and it was given by way of a statement tendered which was not tested in cross-examination) that when the three of them reached Beaumont Street, Campsie, the argument between the deceased and the prisoner had elevated into a fight. The fight initially involved the use of fists and Kim indicated that the prisoner, who was both younger and larger than the deceased, was winning the contest. 11 Eventually, the deceased fell to the ground, according to Kim, near the driveway of Kim's unit, which was situated at number 6 Beaumont Street. Kim said that he then started to push the prisoner away from the deceased. The deceased ran from the immediate area once he had regained his feet, but returned shortly thereafter carrying a round wooden stick roughly 50 centimetres in length. By this time the group had moved to the opposite side of Beaumont Street. Kim stated that the deceased began to strike the prisoner with the stick. Kim attempted to intervene to stop the fight but he himself finished up being knocked to the ground, receiving injuries to his elbow and a cut to his lower lip. 12 He then saw the pair, that is the prisoner and the deceased, moving towards their residence at 14 Beaumont Street. It was Kim's evidence that he believed that the deceased had thrown the stick away at this time. Kim then went to his own premises and saw nothing else occur between the prisoner and the deceased. 13 Later that evening he heard police and ambulance sirens and went to investigate why this was so. After some confusion as to his role in the altercation which had occurred, he eventually gave a statement to the police at Campsie Police Station, which statement was the one tendered in evidence. 14 Another two persons of Korean extraction, Dong Ho Lim and his wife Eun Nim Choi, lived in a unit at 2-4 Beaumont Street. On the subject evening the pair were entertaining friends at their flat. At about midnight they heard the sound of a fight taking place outside. Mrs Choi heard somebody call out in Korean "Today is my birthday, do you want to die today?". After hearing that statement Mrs Choi went onto the veranda of her flat to join her husband and saw the accused fighting the deceased. She also saw a third man who was not wearing a shirt - presumably Mr Kim. It was her evidence that the prisoner was winning the fight, continually punching and kicking the deceased. The kicks apparently took place after the deceased had fallen down in front of number 6 Beaumont Street, Campsie - the position where Mr Kim had identified him hitting the ground. Mr Lim had called out to the combatants in Korean to cease fighting otherwise somebody might report their activity to the police. He, like his wife, was of the view that the prisoner appeared to be winning the fight. 15 A Mrs Essenyel and her daughter, a Ms Mete, who lived at unit 1/6 Beaumont Street gave evidence which was contrary to evidence given by other witnesses. Mrs Essenyel deposed that she saw the prisoner hitting two other men with a stick. On the other hand, her daughter believed that it was a man with no shirt (on the evidence presumably Mr Kim) approaching two other men with a stick; a stick which he ultimately threw to the ground. I have drawn no conclusions as to ultimate fact as a consequence of the evidence of either Mrs Essenyel or her daughter. 16 Another resident of number 6 Beaumont Street, Campsie, a Mrs Joung, also gave evidence of her observations made on the subject evening. I should say that she was both a reluctant and difficult witness. While I do not rely upon her observations of the altercation because of this fact, I do accept that after the deceased had finally fallen onto the street she heard the prisoner say that his temper was bad, that is the prisoner's temper. Indeed, I might say, it was the prisoner who asked Mrs Juong to call the ambulance. 17 A witness of importance was the deceased's wife, Laner Jin. Having given evidence of the celebrations held earlier in the evening relating to the prisoner's birthday, she deposed that at about midnight on the subject night she heard noise coming from the lounge room area of the unit. I should add that the unit itself is quite small. On investigating, she saw the prisoner struggling with his mother. The prisoner had a knife in his hand. He appeared angry and ultimately pushed his mother away. He then said "I will kill Sun Chul" - this being one of the names by which the deceased was known. He then left the unit through the front door. When the door was opened Mrs Jin saw her husband outside. She followed the prisoner. When she reached the footpath she saw the prisoner with a knife in his hand grab the deceased's arm. The prisoner said "Old bro, are you dying? are you dying?." The deceased said "Please save me. Please take me to a hospital." He then collapsed. Mrs Jin went to assist her husband. When she was so doing she heard the prisoner say "Older Bro, please wake up." Let me say that I accept Mrs Jin as a reliable witness of truth. 18 Shortly before the deceased collapsed, Mrs Choi and Mr Lim, to whom I have made reference earlier, saw the deceased staggering, moving towards their premises. Mr Lim deposed that he saw that the prisoner was walking closely behind the deceased, holding a knife and using it in a stabbing motion very close to the deceased's body. 19 When ambulance officer's arrived on the scene they transported the deceased to Canterbury Hospital (which is only a very short distance from the scene) and from there the deceased was taken to Royal Prince Alfred Hospital but, following him suffering a cardiac arrest, he could not be revived, dying at about 12.30am on 1 May. 20 Dr Duflou, forensic pathologist, gave evidence of his findings on autopsy. He deposed that the deceased had died as a consequence of suffering three stab wounds to the chest, which was consistent with either three separate stabbings or a knife having moved within his body three times during the struggle after the initial stabbing. He also found a wound at the back of the deceased's neck which was consistent with having been inflicted by a knife. Furthermore, he found the presence of injuries to the deceased's chest, including a broken rib and abrasions to various parts of his body, which were consistent with the deceased having been involved in an altercation. In short, it was Dr Duflou's evidence that the deceased died as a consequence of stab wounds. 21 The prisoner, in accordance with section 184 of the Evidence Act 1995, made three written admissions which he confirmed orally in court. They were:-

"1) That during the course of an argument with Chun Suh Zhe (the deceased) on the night of 30 April 2003 he, Gil Bum Yun, obtained a knife from the kitchen of 2/14 Beaumont Street, Campsie;

The knife obtained by him was the knife that caused the wounds to the chest of Chun Suh Zhe and

That he, Gil Bum Yun, was holding the knife at the time wounds were occasioned to the chest of Chun Suh Zhe." 22 I should add that the prisoner gave evidence on his own behalf. During the course of that evidence he deposed to a situation in which he claimed that he had been acting in self-defence at the time of the subject incident. The jury's verdict indicates that his evidence in this regard was rejected. 23 What then are my findings of fact? On the evidence of Mrs Jin and Mrs Choi, I am of the view that, prior to the stabbing of the deceased, the prisoner had formed an intention to kill. The last of these threats was made within a very short time of the prisoner stabbing the deceased. The jury's verdict indicates that they did not accept the prisoner's evidence that the stabbing occurred as a result of either an accident or an action taken in self-defence. In the light of the threats he made and the fact that the deceased suffered at least two stab wounds - the wounds in the chest either being the result of three stab wounds or one stab wound and other wounds created by the subsequent movement of the knife within the deceased's body - and the wound to his neck, when coupled with the threats he made, lead me to the conclusion that at the time when the prisoner stabbed the deceased he intended to kill him. The fact that the prisoner was intoxicated (as I believe he was) at the time when the stabbing took place is of no assistance to him (see R v Henry (1999) 49 NSWLR 346 at 384-5 per Spigelman CJ). 24 Under the Crimes (Sentencing Procedure) Act 1999, to which I will hereafter make reference to as the Act, this crime having been committed after 1 February 2003, I am required to make an assessment of the objective seriousness of the offence in terms of a range of seriousness. In my view, the fact that the prisoner intended to kill the deceased, as I have found, places this crime somewhere between the mid-range of seriousness and a higher range. The ramifications of this finding I will discuss later in these reasons. 25 I now turn to the subjective matters raised in relation to the prisoner. In this regard, in so far as the prisoner bears an onus of proof, the standard of proof I have applied is a balance of probabilities. 26 The prisoner is a young man, having been born in China, of parents of Korean extraction, on 29 March 1973, making him now thirty-three years of age. I should add that at the trial there was some confusing evidence given as to whether or not his birthday was in March or April, but for the purposes of sentencing that confusion is of no importance. 27 Having been brought up in China and having attended school there the prisoner entered this country in 2000. He is an illegal immigrant, having entered this country under a forged passport and thus holding no valid visa. The Department of Immigration is now aware of this fact. However, for the purposes of sentencing, the fact that he is an illegal immigrant and liable to deportation is not a matter which I should take into account in determining sentence (see R v Mirzaee [2004] NSWCCA 315). 28 He has no criminal record in this country. In fact, the evidence produced would indicate that he has worked hard since his entry to this country, particularly as a tiler. Accordingly, this conviction, for the purposes of sentencing, is the only black mark on his character. I stress that I have not used the fact that he is an illegal immigrant in any way adverse to the prisoner when considering sentence. 29 Contrary to the Crown's submission, I am of the view that the prisoner is truly remorseful for his actions. The deceased, while older than the prisoner, was a good friend. Indeed, in the aftermath of the stabbing his statements, as deposed to by Mrs Jin, and his request to Mrs Yun to ring an ambulance, are consistent, in my view, with remorse. 30 In the course of sentencing proceedings evidence was given by a clergyman, Jai Chun Song, of, firstly, remorse expressed by the prisoner for his actions and secondly a sum of money paid by the prisoner to the deceased's family as recompense for his crime. Enquiries made by police after the initial sentencing hearing confirmed that Mrs Jin had received money from the prisoner. There is some doubt as to the amount actually paid by the prisoner, but it appears to be at least eight thousand dollars. The importance of this payment by the prisoner is that it underscores the fact that he is truly remorseful for his actions.

31 Additionally, in a handwritten statement tendered in the sentencing proceedings, the prisoner has expressed sorrow for not only his actions in causing the death of the deceased, but both sorrow and sympathy for the deceased's wife and his family in China. 32 It is also the fact that the prisoner will experience hardship above the norm during the term of his imprisonment. I say this because he is a long way from home, China, and his relations and he will thus lack the support which many prisoner's have from family. 33 A report from a psychologist, Ms Katie Seidler, indicates that the prisoner is depressed following his incarceration. More importantly, she is of the view that the prisoner would not be a person likely to re-offend on release. I have no doubt that this is so. Accordingly, this is a matter which I have taken into account in determining sentence. 34 In short, the prisoner presents as a person of prior good character who, prior to the commission of this offence, had during his time in this country worked hard and well as a tiler. He is not a person who is likely to re-offend. He is a person who will find incarceration more difficult than most for the reasons I have expressed and I accept that he is depressed as a consequence of his incarceration. Furthermore, as I have said, I accept that he is truly remorseful for his actions. 35 As I mentioned at the outset of these remarks, this case falls within the provisions of the Crimes (Sentencing Procedure) Act 1999, which apply to crimes committed after 1 February 2003. In particular Part 4 Division 1A and sections 3A, 21A, 54A and 54B apply to the sentencing of this prisoner. These sections require the Court to determine first, whether the offences were in the mid-range of objective seriousness or above that standard. The reason why this is so is because the Act created the concept of standard non-parole periods in this State. Under the legislation the standard non-parole period is applicable to offences which fall within the mid-range of objective seriousness of an offence. As I have already stated, I have found that the commission of this crime falls somewhere between the mid-range of objective seriousness and a higher category. 36 I now turn to an analysis of the Act and the decisions of the Court of Criminal Appeal in R v Way and R v Pellew. 37 The provisions of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 have been the subject of recent decisions of the Court of Criminal Appeal (see R v Way (2004) 60 NSWLR 168 and R v Pellew [2004] NSWCCA 434). In Pellew, Simpson J (who had been a member of the court in Way) summarised the following propositions emerging from Way and subsequent cases as follows:- "(i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]); (ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]); (iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]); (iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus , the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]); (v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (para [101]); (vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]); (vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]; see also R v GJ Davies [2004] NSWCCA 319). Finally, it is to be observed that there is nothing in Division 1A that compels a court which finds that an offence is in the mid range of objective gravity to fix the standard non-parole period in respect of that offence. Possible reasons for departing from the standard non-parole period are extensive, as s 21A makes clear." 38 Thus, in considering sentence, I have taken into account the mitigating factors in accordance with S21A of the Act. However, having fully taken into account those matters, I am of the view that this is a case where the standard non-parole period should be applied. The matters in mitigation, in my view, are sufficient for me not to impose a sentence of greater severity than the standard non-parole period set out in the Act, namely, a non-parole period of twenty years. It follows that if the mitigating factors were not of the strength that I have found, that the non-parole period which I would have set would have been longer than the standard period stipulated by the Act. I make this observation because of my finding that objectively this crime falls somewhere above the mid-range in terms of culpability. 39 The prisoner's sentence will date from the time he went into custody, namely, 9 May 2003. Accordingly, the prisoner is sentenced to a non-parole period of twenty years, commencing on 9 May 2003 and expiring on 8 May 2023, when the prisoner will be eligible for release on parole. The additional term, in accordance with s44 of the Act, is of six years and eight months, commencing on 9 May 2023. **********

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