R v Kyu Hyuk Kim [1999] VSCA 65

40. On the Tuesday, the applicant was again contacted by Leon In who inquired about his father's whereabouts. Ultimately, at the son's suggestion, a missing person's report was filed at a police station with the applicant's knowledge and approval. The applicant also received a similar inquiry from the deceased's brother-in-law, whom he told that he had not seen Mr In. When the brother-in-law suggested that he would deliver some blankets that had been ordered by Mr In, the applicant sought (unsuccessfully) to dissuade him from coming.

43. During the following few days the applicant told friends and relatives of the deceased who were becoming concerned about him, that he did not know where the deceased was, but suggesting to some that he may have gone interstate and that they should look at the airport. This was part of his deliberate plan to deceive those close to the deceased into believing that he had left Melbourne. To the deceased's son, who was telephoning the applicant two or three times every day, he suggested that his father could have gone on a trip or on a holiday in order to get away. Not surprisingly, Mr In's mother was becoming distressed about the disappearance of her son. She spoke with the applicant about it on Wednesday, 20 March 1996. At Kang's suggestion, the applicant told her a callous lie that there may have been an accident involving her son and that he would search for evidence of it in the Footscray area.

46. On that Wednesday, Kang became concerned about some of the items that were used by them in transporting the body, such as the sheets, some plastic bags and the car mat which had been left in the vicinity of Mr In's body. The applicant arranged for them to drive to the site in Kang's car. Prior to setting out for the Dandenongs, he had purchased three pairs of rubber gloves from the local supermarket. When he was later questioned about them, he could not provide an explanation as to why they were purchased. Kang said that the applicant was dressed in white during this trip, which he used as an excuse not to handle any of the items or the body. The potentially incriminating objects were, however, collected and disposed of in the McDonald's carpark at a considerable distance from the Dandenongs.

49. The applicant continued lying to those who inquired of him as to Mr In's whereabouts, planting in their minds the notion that he had gone away. Thus, on Friday, 24 March 1996, the applicant lied to the deceased's sister and the deceased's brother when they visited him at his office with their mother, suggesting that Mr In might be having a good time with his girlfriend.

52. On Sunday, 24 March 1996, the deceased's car was located in a long-term carpark at the Melbourne airport. On being informed of this by Leon In, the applicant used that fact as confirmation of his theory that Mr In had left Melbourne. He said to the deceased's son: "Oh, that's good, at least we know he has gone somewhere and it takes the heat off me."

55. On Monday, 25 March 1996, the applicant was interviewed by the police about Mr In's disappearance and, according to the learned sentencing judge, he revealed himself to be a glib and accomplished liar. Apart from lying about his knowledge of Mr In's whereabouts, he lied about his movements on Monday afternoon and, as the learned sentencing judge found, he:

"continued to advance the falsehood of a rumour that the deceased had a mistress in Korea by whom he had a baby daughter. The sheer audacity of [his] lying is exemplified by [his] assertion, in explanation for the cleaning of the carpet that on the Monday, when [Mr In] was going out, he said: 'Bloody carpets blood filthy, get it cleaned. We should keep the place clean.'"

59. The applicant is an Australian citizen now aged 35 years. He was born in South Korea. He is married and he and his wife have a three year old son. Because of the marital disharmony between his parents, he and his sisters were raised by their grandparents. He came to Australia in 1977, but because of family disruptions, he was often left alone. During this time, he attended a local high school where, in 1980, he completed Year 12. In 1981, he studied for a mechanical engineering degree, although later he deferred it. Between 1979 and 1981 he worked on a casual basis with McDonald's and, due to his skills and enthusiasm, in 1981 he was promoted to manager of a McDonald's restaurant. Later still, he completed three part-time courses with the Australian Institute of Management and, in 1984, obtained a position with the National Mutual Permanent Building Society. In 1989 he commenced employment at Mr In's company.

62. In his carefully reasoned sentencing remarks, his Honour said that although the applicant was not to be punished for his lies, his deceitful conduct demonstrated his ongoing and single-minded purpose of covering up the crime of murder. His Honour also found that the applicant's conduct disclosed a series of calculated actions which were designed to ensure that the perpetrator of the crime escaped detection. On the question of remorse, the learned sentencing judge found that the applicant's belated expression of contrition related primarily to the effect his conduct had on his wife and son, and was also directed to the duration of his impending sentence. In my view, these findings were clearly open to his Honour.

65. But his Honour also found numerous and powerful matters going to mitigation. The principal ones were the applicant's good character prior to the commission of the offence, his excellent prospect of rehabilitation and his success in improving himself while in prison.

68. His Honour considered the offence to be a serious one, given that it carries a maximum penalty of 20 years' imprisonment. In light of that, the applicant's conduct after the murder of Mr In as determined by his Honour, called for a sentence which reflected an appropriate degree of denunciation and general deterrence. It is not surprising, therefore, that in his sentencing remarks his Honour said that any sentence that was to be imposed upon the applicant should be seen as deterring others from undertaking activities such as those of the applicant which are "aimed at subverting the proper administration of criminal justice". In my view, his Honour was perfectly entitled to have regard to the necessity for general deterrence in this case. It is also clear from the sentencing remarks that his Honour balanced these considerations (namely, general deterrence and the seriousness of the offence) with the applicant's prospects of rehabilitation, and other matters favourable to the applicant, taking into account the sentencing principles enunciated in the Sentencing Act 1991.

71. Mr Tehan QC, who appeared with Mr Clarebrough for the applicant, put forward a number of considerations in support of the single ground on which he relies.

74. First, it was contended that the learned sentencing judge failed to accord due weight to a number of matters, resulting in the sentence being manifestly excessive. Those matters were:

(a) the judge's own finding that the applicant had excellent prospects of rehabilitation;

(b) the powerful evidence going to his good character;

(c) the three years which the applicant had spent in custody, during which his son was born and he himself faced two trials.

80. In my view, it is plain that his Honour took these matters into account when considering what sentence should be imposed. The evidence relating to the hearing of the plea in mitigation and the sentencing remarks make that quite clear. The only question that can arise is whether his Honour gave sufficient weight to those matters. Mr Tehan did not point to any part of his Honour's reasoning which establishes this. In essence, he was driven to say that had those matters been given due weight, a lesser sentence would have been imposed. Such an argument is, in my view, circular and is, in reality, a re-statement of the claim that the sentence is manifestly excessive.

83. It was further submitted that to the extent that the applicant engaged in deceptive conduct in order to avoid his own apprehension for the offence of murder, this should have been regarded by his Honour as an "ameliorating feature". The applicant's case, however, was that Kang was the killer. Thus, on his own case, the applicant sought to conceal the fact of the murder and thereby impede the apprehension of another. That is sufficient in the circumstances to constitute the necessary elements of the offence under s.325 of the Crimes Act (R v. Middap (1992) 63 A.Crim.R. 434,443). The fact that the applicant practised deceit for the dual and inseparable purpose of protecting the killer, as well as to avoid being arrested himself and charged with murder, does not, in my view, constitute, in this case, an ameliorating factor.

86. It was also submitted by Mr Tehan that since the offence of which the applicant was found guilty was not contested at trial in the sense that counsel ultimately urged the jury to find him guilty of accessory after the fact of murder, some discount should have been given for that, but his Honour failed to do that. Reliance was placed on R. v. Muschialli (Court of Criminal Appeal, unreported, 25 September 1989). In that case, there was an offer by the accused before trial to plead guilty to the offence of which he was ultimately convicted. Here, on the available material, the forensic decision made by the applicant's counsel to urge the jury to find his client guilty on the lesser charge did not give rise to the well known factors which often justify a sentencing discount consequent upon a plea of guilty - see R v. Dunn [1998] 1 V.R. 645, 648-9; R v. Duncan [1998] 3 V.R. 208, 214-215. It has not been suggested, for instance that the conduct of the trial was materially altered by reason of this urging by the applicant's counsel. In my view, this point has no merit.

89. It was further contended by Mr Tehan that there is no tariff for this offence. He said two things followed from that. The first is that his Honour erred in having regard to what he called a tariff. What his Honour in fact said was that:

"In passing sentence upon you, I must also have regard to the general tariff for this offence exemplified by the cases to which I have been referred by counsel."

93. In my view, all his Honour meant was that he was having regard to the sentences which were passed in the cases which were referred to him by counsel for the applicant.

96. The second is that since there is no tariff for this offence, it is not helpful to contend that a particular sentence is either within or outside the range open for the offence. Assuming Mr Tehan is correct in his contention that there is no tariff for this offence, the question still remains whether the sentence is manifestly excessive.

99. It is trite that the question of whether a sentence is manifestly excessive does not admit of much elaboration: (see R. v. Cardona [1998] 2 V.R. 126, 135). The question for this Court is not whether it would itself have imposed a different sentence in this case, but whether the sentencing discretion, which is by law vested in the sentencing judge, has been properly exercised. In considering this question, it is relevant to have regard to the fact that the maximum penalty for this offence is 20 years' imprisonment, the applicant's callous and cynical conduct, his lack of contrition and the need for general deterrence. Regard must be also had to the strong mitigating factors operating in the applicant's favour. Moreover, these matters were considered and weighed up by a judge who has considerable experience in the criminal law. In the circumstances, it is my view that the sentence was not only not excessive, but was balanced.

102. For completeness I mention an argument put by Mr Tehan in the afternoon to his contention that there was no tariff for this offence. He claimed that the sentence here is excessive, bearing in mind the sentences imposed in relation to this offence in a number of other cases. He referred in particular to R v. Dow (unreported, Court of Appeal, 20 June 1995) where the applicant was sentenced to seven years' imprisonment with a non parole period of five and a half years. In that case, there was a most brutal mutilation of the corpse and the applicant there had a large number of prior convictions relating to physical violence. By contrast, it was said, no such brutality was exhibited to the body in this case and importantly, the applicant was of good character prior to the commission of the offence and had excellent prospects of rehabilitation. Thus, Mr Tehan claimed, the sentence here should have been much less than seven years. This argument, however, overlooks a number of matters, quite apart from the fact that each case must be decided on its own facts. First, the difference in the disrespect shown to the corpse in Dow and by the applicant here, is only one of degree. Secondly, in imposing the sentence in Dow, the court took into account the fact that he had an extremely deprived background, that he pleaded guilty to the offence, and that he was to serve the sentence in protective custody. Next, the behaviour by the applicant was callous and cynical. Moreover, in Dow, the gap between the head sentence and the non parole period was eighteen months; here it is two years.. In my view, therefore, there is no substance in this alternative submission made by Mr Tehan.

105. In my view, in the light of the circumstances to which I have already referred, his Honour's sentencing discretion has not miscarried and the application should be refused.

110. I agree that the application should be refused, and I do so substantially for the reasons assigned by Chernov, J.A.

118. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.