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.