R v Lee

KT v R [2008] NSWCCA 51 Postiglione v The Queen (1997) 189 CLR 295 R v AJP [2004] NSWCCA 434 R v Borkowski [2009] NSWCCA 102 CASES CITED : Louizos v R [2009] NSWCCA 71 R v Simon [2005] NSWCCA 123 R v Way (2004) 60 NSWLR 168 R v Wong [2010] NSWSC 171 Tatana v R [2006] NSWCCA 398

PARTIES : Regina Michael Lee

COUNSEL : Mr J Kiely SC Mr P Hamill SC

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Remarks on Sentence 1 HIS HONOUR: Michael Lee (the offender) pleads guilty to the murder of Joon Yup Lee (the deceased) on 20 March 2008. The maximum penalty for the crime of murder is imprisonment for life. A standard non-parole period has been prescribed of twenty years imprisonment. 2 The offender asks that an offence of having assaulted Sul Yoon on the same date which is included on a Form 1 be taken into account upon sentence. This is an offence contrary to s 61 Crimes Act 1900 which attracts a maximum penalty of imprisonment for 2 years. At his request I will do so. It is an agreed fact that both offences occurred shortly before 1am on 20 March 2008.

3 The deceased died as a result of a knife wound to the heart which was inflicted by Ivan Wong (the co-offender). At the time of his death, the deceased was 19 years old. 4 As questions of parity and proportionality with the sentence imposed upon the co-offender are important considerations in my sentencing task, it is convenient to record the co-offender's sentence here. The co-offender was sentenced by Buddin J on 10 March 2010: see R v Wong [2010] NSWSC 171. He had pleaded guilty to the murder of the deceased and to a charge of wounding Jung Ho Song with intent to inflict grievous bodily harm upon him contrary to s 33(1)(a) Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment and a standard non-parole period of 7 years applies. When sentencing the co-offender for the s 33(1)(a) offence, an offence on a Form 1 of having on the same date assaulted Sul Yoon, was taken into account by his Honour. The following sentences were imposed: For the offence contrary to s 33(1)(a), the co-offender was sentenced to a non-parole period of 4 years 6 months imprisonment to commence on 20 March 2008 and to expire on 19 September 2012 with a total sentence of 6 years imprisonment to expire on 19 March 2014. For the offence of murder, the co-offender was sentenced to a non-parole period of 14 years imprisonment to commence on 20 September 2009 and to expire on 19 September 2023 with a total sentence of 19 years 6 months imprisonment to expire on 19 March 2029. The total effective non-parole period was 15 years 6 months imprisonment and the total effective sentence was imprisonment for 21 years. The co-offender will be eligible for release on parole on 19 September 2023. 5 During the sentencing proceedings before me a statement of agreed facts was tendered and marked as exhibit A1. Agreed Facts 6 The agreed facts are: "The [deceased], Joon Yup Lee, and two friends, Sui [sic] Yoon and Jung Ho Song, had attended the Hungry Jacks restaurant in George Street Sydney. A friend of the offender, Ivan Wong ('the co-offender') was present at Hungry Jacks at the same time. The co-offender became angry because he thought that Mr Song had stared at him. The co-offender called the offender on his mobile telephone and told him "Fight, come over to Hungry Jacks." The offender then attended Hungry Jacks. The offender called another friend and asked her to bring him a hammer. The hammer was delivered to him shortly after he had made the request.

The offenders waited for the [deceased] and his friends outside of Hungry Jacks. The offenders were armed - the offender with the hammer and the co-offender with a knife.

The [deceased] and his friends left Hungry Jacks and commenced to walk across the road. They were followed by the offenders to the World Square shopping centre. Once they were in the shopping centre the offender called out to and confronted the [deceased's] group. He asked Mr. Song why he had stared at the co-offender and said that he should show some respect and apologise to the co-offender. Mr. Song responded by saying that he was sorry.

The offender then said "You don't see this" at which time the offender took [the co-offender's] arm and showed the victims the knife with the blade open in the hand of [the co-offender]. The offender then showed the Korean men the brown paper bag he was carrying and said "You don't see this". He opened the bag and showed Song the handle of the hammer in the bag.

[This action of showing the knife to the Korean men placed Mr Yoon in fear and constitutes the act giving rise to the offence of assault on the Form 1.]

The offender then said in English "Are you Korean?" He repeated the words in Korean "Are you Korean?"

Immediately, following this question, the co-offender suddenly raised the knife and stabbed Mr Song once to the chest causing a wound. The co-offender has pleaded guilty to an offence under s. 33 of the Crimes Act 1900 arising from this stabbing.

The Korean men had never seen the offenders prior to that evening -did not know them and did not know of any reason for the attack by [the] co-offender on Hung Song [sic] apart from Hung Song having allegedly stared at the co-offender at Hungry Jacks earlier that evening.

Following the stabbing of Song the three Koreans backed off. The co-offender also stepped back a short distance. The co-offender then swung the knife at the Korean men after he had stabbed Hung Song.

The [deceased's] group immediately ran away. The offender and [co-offender] chased them. The [deceased] separated from his two friends and ran into an arcade in World Square known as Liverpool Lane. Two closed circuit television ('CCTV') cameras captured the events that followed…

The [deceased], whilst being chased down the arcade, was around half way down the arcade when he slipped and fell to the ground. The offender approached him and immediately tried to kick him. The offender raised the hammer over his shoulder and attempted to strike the [deceased] but the hammer appeared to slip from his grasp. Around 2-3 seconds later the co-offender, who had been chasing the [deceased] down the arcade, joined the offender in the assault on the [deceased]. He stabbed the [deceased] four times. The offender was present when this happened. The CCTV footage may show that the offender was holding the [deceased] when he was stabbed by the co-offender.

After the [deceased] had been stabbed four times he attempted to get up from the ground. The offender picked up the hammer and struck the [deceased] causing him to fall back to the ground. The [deceased] then got up and ran from the scene.

The [deceased] was chased from the arcade by the offenders. The [deceased] ran into Liverpool Street where he collapsed. A short time later he was taken by Ambulance to hospital. He died at 2.25 am, the morning of 20 March 2010 [sic].

A post mortem report disclosed that he suffered four stab wounds: (i) A wound to the left anterior chest which pierced the intercostal muscle, the heart and diaphram (sic) and went into the liver. The wound was 250-300 mm deep. This was the fatal wound. (ii) A wound to the right middle back which went through soft tissues and into the right kidney capsule. It was 20-25cm deep. (iii) A wound to the left superior back which extended through soft tissue above the rib cage. It was 15-20cm deep. (iv) A superficial stab wound to the right thigh which penetrated the skin to the underlying muscle. The direct cause of death was identified as a 'stab wound to the heart'. A number of small bruises were noted which were consistent with blunt force trauma. At the committal hearing the pathologist agreed that none of the bruises were significant and none could be identified as having been caused by a hammer blow. The pathologist was able to come to the firm conclusion that there had been no hammer blows to the head. The offenders left the scene in a taxi. They were arrested in Redfern at about 1-20am. At the time of their arrest the offender was in possession of a hammer and the co-offender was in possession of the knife. In spite of receiving the advice of a lawyer, the offender participated in a lengthy record of interview with the investigating police. The interview commenced at about 9-10 am and concluded at about 12-49pm on 20 March 2010 [sic]. The offender then attended the scene with police and showed them the location where various of the incidents took place. The 'walkthrough ' commenced at around 3-50 pm and concluded at around 4-40 pm that same day. The offender expressed some remorse in the course of the interviews with police, was very co-operative with them and assisted the investigation in a significant way. Subsequent DNA analysis showed the presence of the deceased's blood on the knife. The analysis of the hammer was unsuccessful. The deceased's blood was also identified on the offenders [sic] jeans."

7 The material tendered by the Crown included CCTV footage of the events in World Square, CCTV footage at the Hungry Jacks restaurant, the transcript and DVD of the offender's interview with police and the DVD and transcript of the 'walk through' interview. At the invitation of the Crown and Mr Hamill SC, I have viewed all of this material. 8 The offender gave evidence during the proceedings on sentence. The following background material is drawn from his evidence and from a report of Sam Borenstein, clinical psychologist. The offender was born on 23 November 1989 in Chaoyang China and was 18 years of age at the time of the commission of the offence. He has a younger sister by four years, who is a student. The offender's family came to Australia as business migrants in 2002 when the offender was 12 years old. Upon arriving in Australia, the family lived at Lindfield and the offender studied intensive English at Chatswood. During his secondary education the offender attended three high schools as his family moved house. The offender described his family life as being harmonious and caring. He commenced year 12 but did not sit for the Higher School Certificate. He left home at the beginning of his final year as he believed he could take care of himself. He told Mr Borenstein that he failed to complete year 12 as he was mixing with the "wrong crowd". When he left school, he worked up to seven days per week for a clothing retailer. Mr Borenstein reports that the offender did not use drugs but did drink alcohol on weekends. On the night of the offence, he had been attending a karaoke bar with friends and had consumed alcohol but was uncertain as to the exact amount. The psychologist states that "Though intoxicated, [the offender] has clear recall of the events [and] accepts full responsibility for his actions." The psychologist asked the offender whether he had problems with people of Korean culture to which he replied "No, I have a lot of Korean friends." He told the psychologist that he had requested the hammer as it was his intention "to scare these people off." 9 The psychologist was of the opinion that the offender had expressed genuine guilt and remorse and presented as being resigned to the consequences of his actions, understanding the need to be held accountable. Mr Borenstein considered that the offender does not have an obvious psychological disorder and "was not subject to any particular stressors except that represented by the fact he was living independently away from home, which provided him freedoms beyond that which he was used to." Mr Borenstein opined that the offender: "Was responding from a position of increased freedom without the necessary emotional maturity to benefit from same. He was party to a relationship with a girl. His parents had little awareness of his actions at that time.

I believe the prospects for Mr Lee's rehabilitation are very positive and the risk of re offending to be negligible." 10 During submissions on sentence it became apparent that the question of the offender's intention at the time of the commission of the offence was in dispute. The Crown contended that the offender had the intention to kill or to inflict grievous bodily harm on the deceased whereas Mr Hamill put to me that the court would not find that the offender had either intention. Mr Hamill submitted that the offender was guilty of murder on the basis of extended common purpose (or joint criminal enterprise) to assault the deceased and was aware of the possibility that the co-offender would act as he did. 11 The Crown did not contend that the offender's level of culpability in the commission of the offence is so extreme that a sentence of imprisonment for life is to be imposed: s 61(1) Crimes (Sentencing Procedure) Act 1999. 12 On the question of the offender's intention, the Crown pointed to the actions of the offender after he chased the deceased whilst armed with the hammer. Mr Hamill contended that the CCTV footage did not make it clear exactly what was done with the hammer and referred to the testimony of Riani Van Vuuren, the forensic pathologist, during the committal hearing that none of the small bruises on the body of the deceased were significant and none could be identified as having been caused by a hammer blow. 13 The onus is on the Crown to prove beyond reasonable doubt that the offender had an intention to kill or to inflict grievous bodily harm on the deceased. 14 As I have recounted, the agreed facts include the forensic pathologist's findings that there had been no hammer blows to the deceased's head and that none of the small bruises could be identified as having been caused by a hammer blow. 15 During his evidence in chief, the offender said that it was not his intention to seriously hurt or to kill the deceased which he maintained in cross-examination. The main purpose of obtaining the hammer, the offender said, was to scare the Korean men. He thought that the co-offender was initially going to use the knife to scare them but that changed when he saw the co-offender stab Mr Song. He agreed that he did not walk away and had chased the deceased. He accepted that he was part of a joint enterprise with the co-offender and had pleaded guilty on the basis that he was aware in his mind of the possibility that the co-offender might stab the deceased. In answer to questions by the Crown, the offender's testimony included the following (T 18 L 43-50, T 19 L 1-33): Crown "Q. You chased after him knowing that Mr Song had been stabbed, didn't you? A. Yes.

Q. You chased after him with your hammer, didn't you? A. Yes.

Q. And when Mr Lee fell over in the arcade you tried to hit him with that hammer, didn't you? A. Yes.

Q. Not only did you try to hit him then, the hammer then fell out of your hand, didn't it? A. Yeah.

Q. Did you also hold him, that is, did you hold Mr Lee up when Mr Wong arrived on the scene? A. Wasn't - I wasn't doing anything to help Ivan. I was - say I was doing my stuff. I didn't know - everything happened so quick."

HIS HONOUR "Q. What were you doing? A. I was continuing assaulting Mr Lee.

Crown Q. You were scuffling with Mr Lee when Mr Wong arrived, weren't you? A. Pardon?

Q. You were holding and scuffling with Mr Lee when Mr Wong arrived? A. Yes.

Q. After the stabbing, you went round and picked up your hammer, didn't you? A. Yes.

Q. When you picked up your hammer, you knew, at that stage, that Mr Lee had been stabbed, didn't you? A. Yes."

And further (T 20 L 30-50, T 21 L 2): Crown "Q. You attempted to hit him with a hammer when you first caught up with him, didn't you? A. Yes.

Q. Did you have a look at the CCTV as to the type of blow that you intended to hit him with then? A. Yes.

Q. It was a good, hard, solid blow, wasn't it, overarm blow, wasn't it? A. I think it was.

Q. And, secondly, at the end, when you picked up your hammer again, you attempted to hit him again with the hammer, didn't you? A. That's what I saw myself doing on the CCTV camera.

Q. And that was an overarm swing of the hammer too, wasn't it, above the head? A. Yes.

Q. What did you intend to do then, when you were swinging the hammer at that time at the end? What did you intend to do then? A. I wasn't - at that stage, I wasn't thinking anything. Just everything happened so quick." 16 Save for a finding beyond reasonable doubt that the offender did kick the deceased after he fell which is founded on the offender's evidence and on the CCTV footage, I make findings of fact for the purpose of sentencing the offender in accordance with the agreed facts. 17 In the present case, the absence of injury to the deceased caused by a hammer blow does not determine the question of the offender's intention. With the knowledge that the co-offender had stabbed Mr Song, the offender, armed with a hammer, chased the deceased. When the deceased fell to the ground, the offender kicked him, tried to strike him with the hammer and continued to assault him. When the co-offender arrived, the offender was holding and scuffling with the deceased. It is an agreed fact that after the deceased had been stabbed by the co-offender, the offender then struck the deceased with the hammer causing him to fall to the ground. The CCTV footage discloses the violence of the offender's conduct. 18 I am satisfied beyond reasonable doubt that the only rational inference to be drawn from all of the offender's conduct is that he intended to inflict grievous bodily harm upon the deceased. I do not accept the offender's testimony that he had no such intention. I am not satisfied beyond reasonable doubt that he had an intention to kill. 19 The deceased's attempt to escape from his pursuers was prevented by the offender's assault. I am satisfied beyond reasonable doubt that the deceased was being held by the offender immediately before the stabbing. The CCTV footage does not establish that the offender was holding the deceased when he was stabbed. As a consequence of the offender's conduct, the deceased was not able to defend himself against being stabbed four times with a knife by the co-offender.

20 Another matter which assumed significance during the sentencing hearing was that of the factors of aggravation which are to be taken into account in determining the appropriate sentence: s 21A(2) Crimes (Sentencing Procedure) Act. The Crown invited me to find that the murder was motivated by the offender's prejudice against the race of the three Korean men: s 21A(2)(h) Crimes (Sentencing Procedure) Act. The onus is on the Crown to prove each of the factors of aggravation that it asserts beyond reasonable doubt. The Crown submitted that the offender's enquiry of Mr Song "Are you Korean?" was the trigger of the whole incident. 21 The offender denied that he was racially motivated and said that he has many Korean friends. His testimony was supported by a letter of reference from Jinman Kim. Mr Kim, who is of Korean descent, referred to the offender having many Korean friends during high school and expressed his strong belief that the offender "does not discriminate to one particular race." 22 I do not consider that there is any evidence that the offender disliked or was prejudiced against Koreans. The question posed by the offender does not support such a finding. The offending conduct, in my view, was motivated by the offender's support for the co-offender's anger arising from his perception that Mr Song had stared at him. This factor of aggravation has not been established. 23 Another aggravating factor, the Crown said, was that the offence was committed as part of a planned criminal activity: s 21A(2)(n) Crimes (Sentencing Procedure) Act. The evidence of planning is confined to the telephone call by the co-offender to the offender in which the co-offender said "Fight, come over to Hungry Jacks," to the offender's request to a friend to bring him a hammer and both offenders' wait for the three men to exit the restaurant. Whilst the evidence establishes that there was a limited degree of planning, I am not satisfied to the requisite standard that the murder was part of a planned criminal activity. It seems to me that the offender's conduct after the stabbing of Mr Song, mainly arose impulsively. This factor of aggravation has not been established. 24 Two factors of aggravation, however, are not in dispute. The offender accepts that one aggravating factor is that the offence involved the use of weapons: s 21A(2)(c) Crimes (Sentencing Procedure) Act and another is that the offence was committed in company: s 21A(2)(e) Crimes (Sentencing Procedure) Act. I take these factors of aggravation into account in determining the appropriate sentence. 25 Although a plea of guilty has been entered it is necessary to consider where the offence committed by the offender lies on the range of objective seriousness of the offence of murder as this is an offence to which a standard non-parole period applies: R v AJP [2004] NSWCCA 434 at [18], R v Simon [2005] NSWCCA 123 at [30]. The Crown submitted that the offence falls within the mid-range of objective seriousness, whereas Mr Hamill submitted that the offender's case falls below the middle of the range. Mr Hamill referred to Buddin J's assessment of the criminality involved when he sentenced the co-offender. His Honour considered that the offence of murder committed by the co-offender "should be characterised as falling below, but only slightly below, the middle of the range of objective seriousness": R v Wong at [36]. In coming to that conclusion, his Honour had regard to the lack of intention to kill and to the impulsiveness of the co-offender's actions. As has been stated, I have made similar findings. 26 Mr Hamill referred to the different roles that the offender and co-offender played in the commission of the offence and to the "absence of a significant aggravating feature" in the offender's case. Mr Hamill was referring here to the conditional liberty to which the co-offender was subject at the time of the murder. This factor of aggravation does not apply in the offender's case. The Crown submitted that, whilst the co-offender was the person who inflicted the fatal blow to the deceased, the two offenders were equally responsible for the murder. 27 I find that the co-offender's culpability for the murder is more than that of the offender. It was the co-offender who took offence to the deceased's group and who called the offender to the restaurant. He stabbed Mr Song and savagely stabbed the deceased. As Buddin J observed at [36] "the murder of the deceased was brutal and senseless." Whilst it is true that if the co-offender had not wielded the knife in the way that he did, the deceased would not have been killed, the offender's role in the commission of the offence was not insubstantial. His violence towards the deceased facilitated the murder. He had an intention to inflict grievous bodily harm. The extent of his participation in the offence is, to my mind, further revealed by his conduct immediately following the stabbing. Rather than rendering assistance to the deceased, the offender callously struck him with the hammer causing him to fall to the ground. After the deceased got up, both the offender and co-offender chased him for a short distance. I assess his culpability for the murder as being not significantly less than that of the co-offender. I characterise the offence as being below the middle range of objective seriousness. 28 Even though the standard non-parole period does not apply after plea, I acknowledge that it must be kept in mind as "a reference point, or benchmark": R v Way (2004) 60 NSWLR 168. 29 The offender was 18 years old at the time of the offence. The principles to be applied in the sentencing of young offenders for serious offences are summarised in KT v R [2008] NSWCCA 51 at [23-26]. It seems from Mr Borenstein's report and from the offender's misguided support for his co-offender's upset over a trifling incident that his emotional immaturity may have contributed to his offending. I give modest weight in the offender's favour for his apparent immaturity when assessing the criminality involved in the commission of the offence. Nevertheless, the offence committed is a crime of considerable gravity. Whilst I take into account the offender's need for rehabilitation, I do not ignore considerations of general deterrence and retribution. As Buddin J succinctly acknowledged when sentencing the co-offender who was also 18 years old "an offender's youth cannot simply be used as a 'cloak of convenience'": R v Wong at [31]. 30 I am unable to determine what part the offender's consumption of alcohol played in the commission of the offence. His consumption of alcohol neither aggravates nor mitigates the offence.

31 There are a number of mitigating factors, which are to be taken into account in determining the appropriate sentence. Remorse as a mitigating factor is qualified by s 21A(3)(i)-(ii) Crimes (Sentencing Procedure) Act which requires the offender to provide evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by them. The offender's remorse and acceptance of responsibility has been demonstrated in a number of ways. It was first manifested by his conduct in participating in a lengthy record of interview with the police during which he made detailed admissions of his offending conduct and expressed his regret for what he had done. During his testimony the offender told me, which I accept, that he had been instructed by his lawyer not to say anything but he ignored this advice as he wished to co-operate with police. 32 It was next manifested by his co-operation and demeanour during the 'walk through' interview. Furthermore, the offender has written to the parents of the deceased expressing his sorrow for the loss of their son and asking them for their forgiveness. He has also written to Mr Song. Further expressions of remorse are found in the letter written by the offender to me and in Mr Borenstein's report. It appears from the affidavit of Mr Gibson, his solicitor, that the letters were not written on legal advice. During his testimony the offender expressed his sorrow for the deceased and the pain and suffering that had been brought upon the deceased's family. I accept that the offender has shown genuine contrition and remorse for the offence which I take into account as a factor in mitigation. 33 Another mitigating factor is that the offender does not have any significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act. His record discloses some minor traffic offences, which I regard as being irrelevant to my sentencing task. 34 Included in the tendered material are testimonials from Timothy Ng and Jinman Kim (to which I have previously referred) which speak of the offender's prior good character. The offender's parents in their letter to me refer to the diligence of their son, his openness and kindness to others. There is no evidence suggesting criminal conduct other than that for which the offender is being punished. I am satisfied that the offender has shown previous good character which is a mitigating factor: s 21A(3)(f) Crimes (Sentencing Procedure) Act. 35 Mr Hamill invited me to find as mitigating factors that the offender has good prospects of rehabilitation and is unlikely to re-offend. Mr Borenstein was of the opinion that there was nothing to suggest a propensity towards antisocial behaviour and that the offending was an aberration. The offender's prior good character, genuine remorse and parental support suggest that such findings should be made. This view is reinforced by the offender's determination to do his best whilst in custody. It appears from the tendered Statements of Attainment that he is working towards a Certificate I in Information Technology. I find that the offender has good prospects of rehabilitation and is unlikely to re-offend: ss 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act. 36 The offender's guilty plea is a mitigating factor: s 21A(3)(k) Crimes (Sentencing Procedure) Act. The plea was entered before the jury was empanelled on the second day set aside for the trial which had a three week estimate. The offender had been committed for trial on the offences of murder and common assault but had been discharged on an offence of attempted murder of Mr Song and an alternative s 33(1)(a) Crimes Act count. The s 33(1)(a) Crimes Act count was restored by the filing of an ex officio indictment. The offender was arraigned on 4 December 2009 on an indictment which contained three counts and the trial was listed to commence on 10 May 2010. On that day, the trial was adjourned to the following day to enable discussions with the Crown to continue. The offender's plea to murder was accepted by the Crown on the basis that the s 33(1)(a) Crimes Act count was no-billed on 11 May 2010. It was following this decision by the Deputy Director of Public Prosecutions that the offender instructed his counsel that he wished to plead guilty to the count of murder. The third count of assault was included on the Form 1. 37 Mr Hamill conceded that the plea was entered late. He submitted that there, nevertheless, had been a significant saving of court time and court resources. Mr Hamill pointed out that the offender had also indicated a willingness to reduce the complexity of the trial by signing the Agreed Facts pursuant to section 191 Evidence Act 1995 on 10 May 2010. The issues at trial were likely to be complex, Mr Hamill said, as the jury would have required careful instruction on accessorial liability. He argued that in an assessment of the utilitarian value of the plea, the court must take into account that the conduct of the committal hearing was vindicated by the offender's plea to murder and the no-billing of the s 33(1)(a) offence. The evidence of the forensic pathologist was of importance in terms of the offender's role and, in any event, would have been necessary to establish relevant matters at the sentencing hearing. Mr Hamill observed that, although the co-offender had played no real part in the committal hearing, he was committed for trial not sentence. The co-offender had pleaded guilty on arraignment when the charge of attempted murder of Mr Song was withdrawn and the Crown proceeded on the s 33(1)(a) charge. Mr Hamill acknowledged that the co-offender was entitled to a slighter greater discount and contended that a discount of around 15 per cent would be appropriate in the offender's case. The Crown, in short, argued that the utilitarian value of the plea was not great as it was not entered until the last moment and must be substantially less than that given to the co-offender. 38 In assessing the utilitarian value of the plea, I bear in mind the principles set out in R v Borkowski [2009] NSWCCA 102 at [32]. It is common ground that the plea has been entered at a late stage. The reasons advanced for the delay in the plea are largely irrelevant as the utilitarian value of the delayed plea was less. Although the s 33(1)(a) offence was ultimately no-billed upon the entry of the offender's plea, there is no suggestion that the offender at committal or upon arraignment offered to plead guilty to murder. Buddin J's assessment of a 20 per cent discount was founded on the co-offender's plea being entered "upon his arraignment, after having waived his right to a committal hearing": R v Wong at [31]. There is, in my opinion, a significant difference in the utilitarian value of a plea entered upon arraignment and a plea offered on the second day of the time allocated for trial. The utilitarian value of the Agreed Facts was reduced as agreement was not reached until 10 May 2010. I accept that there has been a significant saving in court time and the trial may have involved difficult issues of accessorial liability. The offender is entitled to a utilitarian discount for the plea of 12.5 per cent.

39 Mr Hamill submitted that a mitigating factor was that the offence was not part of a planned or organised criminal activity: s 21A(3)(b) Crimes (Sentencing Procedure) Act. Although I am not satisfied that the planning was sufficient to be a factor of aggravation, I concluded that there was a limited degree of planning. The absence of a finding of an aggravating factor does not necessarily convert to a finding of a mitigating factor: Louizos v R [2009] NSWCCA 71 at [91]. The offender has not established this factor of mitigation on the balance of probabilities. 40 Another submission for the offender was that his assistance to police and the degree of pre-trial disclosure were mitigating features: s 21A(3)(l)-(m) Crimes (Sentencing Procedure) Act. The offender's assistance and pre-trial disclosure have been taken into account in assessing his remorse and prospects of rehabilitation. I do not propose to "double count" these mitigating matters. 41 Included in the tendered material are Judicial Commission sentencing statistics for murder. Particular reference was made for the offender to the sentences imposed since the introduction of the standard non-parole period where the non-parole period was 14 years or less. 42 The proper application of principles of parity and proportionality, Mr Hamill contended, would result in the offender receiving a sentence significantly lower than that imposed on the co-offender. The parity principle of sentencing requires there should not be a marked disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance: Postiglione v The Queen (1997) 189 CLR 295. As was said by Dawson and Gaudron JJ at 301: "Discrepancy or disparity is not simply a question of the imposition of different sentences for same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

43 I have assessed the offender's culpability for the murder to be less, but not significantly less, than that of the co-offender. The offender, I have found, was a person of previous good character with no significant record of prior convictions whereas the co-offender had what was described by Buddin J as "a minor criminal record for offences of dishonesty": R v Wong at [28]. The co-offender had been placed on a bond and on two periods of probation for these offences by the Children's Court. At the time of the murder, the co-offender was subject to three kinds of conditional liberty which in his case was a significant factor of aggravation. I have determined that the offender has good prospects of rehabilitation whereas Buddin J was "guardedly optimistic" about the co-offender's prospects for rehabilitation: R v Wong at [32]. Another distinguishing feature is that the co-offender was also sentenced for the wounding with intent of Mr Song. It follows that, in the co-offender's circumstances, the murder was not an isolated act of violence. On the other hand, the offence on the Form 1 was not taken into account on the sentence for murder in the co-offender's case but on the sentence imposed for the s 33(1)(a) count. 44 As to the Form 1 offence, I observe that the offender was well aware by taking the co-offender's arm and showing the knife with an open blade in the co-offender's hand, Mr Yoon would be placed in fear. 45 For the offence of murder, the co-offender was sentenced to a non-parole period of 14 years with a total sentence of 19 years 6 months. The sentence has been reduced by 20 per cent for the utilitarian value of the co-offender's plea. The offender's sentence is to be reduced by 12.5 per cent for the utilitarian value of his plea. Notwithstanding the Form 1 offence which I have been asked to take into account on sentence, I am of the opinion that his different circumstances and lesser degree of criminality require a sentence for the murder which is lower than that imposed on the co-offender. 46 Whilst I accept Mr Hamill's submission that special circumstances should be found, my findings of special circumstances are confined to the offender's first time in custody and the need to preserve proper parity between the sentences of the co-offenders: Tatana v R [2006] NSWCCA 398. The offender has the benefit of a supportive family to visit him and I do not consider the absence of an extended family network to be a special circumstance. The offender's youth has been given appropriate weight in the assessment of the sentence. 47 The appropriate undiscounted starting point of the sentence, I conclude, taking into account the Form 1 offence, is 22 years. The sentence is reduced by 12.5 per cent to 19 years 3 months. By reason of the finding of special circumstances I have assessed a non-parole period of 13 years 3 months. 48 It is common ground that the offender has been in custody since his arrest. Accordingly, the date of the commencement of the sentence will be 20 March 2008. 49 Michael Lee for the murder of Joon Yup Lee I convict you. I sentence you to a term of imprisonment with a non-parole period of 13 years 3 months which is to commence on 20 March 2008 and to expire 19 June 2021 I set a balance of term of 6 years which is to commence 20 June 2021 and will expire on 19 June 2027. 50 You will be eligible to be released on parole on 19 June 2021.

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