R v Wong [2010] NSWSC 171 | Case summary

REMARKS ON SENTENCE 1 HIS HONOUR: Ivan Wong (the offender) stands for sentence having pleaded guilty to the murder of Joon Yup Lee (the deceased) on 20 March 2008. The maximum penalty for the offence is life imprisonment and a standard non-parole period of 20 years is applicable to it. He is also to be sentenced for having on the same date wounded Jung Ho Song with intent to inflict grievous bodily harm upon him. That offence attracts a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years is applicable to it. The offender requested that I also take into account, when sentencing him in respect of that count, a further offence of having on the same date assaulted Sul Yoon, an offence which attracts a maximum penalty of 2 years imprisonment. 2 There is no dispute about the factual background to the offence. In outlining that material I have placed considerable reliance upon what is set out in an Agreed Statement of Facts. I was also provided with a number of statements including those made by the two surviving victims as well as two other persons who witnessed the latter part of the incident. 3 At the time of the fatal incident, the deceased and his friends, Mr Song and Mr Yoon, were young Korean nationals studying at Sydney University. They were all residing in Australia on student visas. During the evening of 19 March 2008, Mr Song and Mr Yoon attended a meeting of the Korean International Students in Sydney University at the home of a mutual friend, Sung Jun Choi. After the meeting had concluded at about 12.30 am the following morning (20 March), Mr Song and Mr Yoon left Mr Choi's house. They walked to a nearby street where they hailed a taxi which took them to Hungry Jacks Restaurant at the corner of George and Liverpool Streets in the city. 4 When they arrived at the restaurant there were about 20 people in the premises. They walked up to the counter and each of them ordered a meal. At the time, Mr Yoon was facing the counter whilst Mr Song had turned around and was looking away from it. As he turned around, Mr Song looked into the face of the person who was behind him in the queue. Although they made eye contact, no words were exchanged between them. The other man was the offender. After they made eye contact, the offender made a call on his mobile phone and Mr Song heard him talking to someone in Chinese. The offender kept staring at Mr Song whilst making the phone call. The offender then briefly left the premises and went outside. 5 Upon receiving their meals, Mr Song and Mr Yoon went to a table in the middle of the restaurant that was close to the cashier. As they were eating their meals, the offender returned to the restaurant with another man, whom I shall refer to as M. [I was informed that M is to stand trial in respect of these matters later this year]. The offender and M purchased food and sat at a table near to where Mr Song and Mr Yoon were seated. Mr Song was facing towards the main entrance whilst Mr Yoon was facing towards the cashier. Each time that Mr Song looked in their direction, he saw that the offender and M were staring at him. Mr Song also noticed that there was something wrapped in a brown paper bag or brown paper on the table at which the offender and M were seated. 6 Mr Song then used his mobile telephone to call the deceased and arrangements were made for him to meet Mr Song and Mr Yoon at the restaurant. A short time later, the deceased arrived and joined them at their table. After they finished eating, Mr Song, Mr Yoon and the deceased left the restaurant in order to go to an internet café in the World Square complex which was nearby. As the three of them crossed Liverpool Street, Mr Song sensed that someone was following them. As the three of them walked together into World Square, Mr Song saw the reflection of two men walking behind them and realised that they were the two men from the restaurant (that is the offender and M). 7 The two groups entered World Square. As Mr Song, Mr Yoon and the deceased walked through an arcade they were followed by the offender and M who were a short distance behind. M then called out to them, causing Mr Song, Mr Yoon and the deceased to stop. When the offender and M approached the group, M claimed that Mr Song had been staring at the offender in the restaurant and called upon him to apologise. M indicated toward the offender and said "Look at what he is holding". The offender then produced a knife from behind his back whilst M produced a brown paper bag protruding from which was the handle of some implement. 8 Having brought the knife out from behind his back, the offender lifted it up to head height, stepped towards Mr Song and stabbed him in the upper chest area. Mr Song, Mr Yoon and the deceased then turned and fled. Mr Song and Mr Yoon were eventually able to escape into a nearby convenience store. Emergency services were summoned to that location and Mr Song was conveyed to hospital by ambulance. 9 The fact that Mr Yoon was present at the time of the attack upon Mr Song, and was put in fear by what he observed even though he was not himself attacked, provides the factual basis for the Form 1 matter. 10 The deceased fled up another arcade that emerged at Liverpool Street directly opposite Central Local Court. As the deceased ran up the arcade he lost his footing and fell to the ground. Whilst he was still on the ground, M caught up with him and struck him in the head and upper body area with a hammer. When the hammer fell out of his hand, M then kicked at the deceased. The deceased was still on the ground when the offender arrived. The offender approached the deceased and proceeded to stab him a number of times to the upper body area with the knife. That part of the incident was monitored by CCTV cameras and I have had the benefit of seeing footage of that material. 11 The deceased managed to get to his feet and ran out of the arcade onto Liverpool Street where he collapsed. He was then conveyed to hospital by ambulance but despite emergency surgical intervention he later died in hospital. 12 The offender and M ran from the scene and caught a taxi to the vicinity of Redfern Railway Station. At about 1.15 am Inspector Bullock, having heard a broadcast over police radio, walked outside Redfern Police Station and observed that the offender and M were standing across the road. He spoke to the offender who told him that they had been there for a couple of hours and that they had come from the city. Inspector Bullock informed the pair that they had been seen getting out of a taxi only a few minutes earlier and asked them why they had said that they had been there for a couple of hours. Neither M nor the offender replied to his question. 13 The offender and M were then searched. The offender told police that he had a knife on his person. The knife was then located. The hammer was discovered in the front of M's pants. The offender and M were then arrested and conveyed to Central Police Station. Once there and whilst the standard administrative procedures were being conducted, the offender made oral admissions that he had participated in the commission of these offences. The offender, having received legal advice, initially declined to be formally interviewed by police. Subsequently however he changed his mind and asked to be interviewed. He then participated in an ERISP during the course of which he made the following admissions and observations:

(d) a superficial wound on the right anterior region of the thigh that only perforated the skin to the underlying muscle. 15 Although no injuries to his head were observed, the deceased also sustained a small laceration to his chin as well as faint areas of bruising to his back and forearms. 16 Mr Song sustained a 1.5 cm wound in the left anterior region of the chest wall below the left clavicle. The stab wound penetrated his left lung and required surgery to repair it. He remained in hospital for almost a week. I have been provided with photographs which reveal the extent of his injuries. 17 The deceased's relatives who reside in Korea have been approached and, as is their entitlement, have declined to provide a victim impact statement. A victim impact statement has been received from Mr Song. He expressed his understandable grief as a result of the passing of the deceased, whom he described as "my dear friend". The approach of a sentencing judge to that kind of consideration is well established: R v Previtera (1997) 94 A Crim R 76. However, he also described in considerable detail the impact of his own injuries. Following his release from hospital, Mr Song received psychological counselling between March 2008 and July 2009 from Ms Lidia Nemitschenko, who is the head of the International Student Support Unit at Sydney University. She reported that: [d]uring this time, he was experiencing post-traumatic symptoms. These included difficulties sleeping, nightmares, flashbacks to the attack, hyper-vigilance and agoraphobia, elevated levels of stress and anxiety and depression. Mr Song's studies were negatively impacted as a result of his psychological problems. In the period after the attack and throughout his stay in Sydney, he did not feel safe in Sydney and this impacted on his social life. He was reluctant to go out and the resulting social isolation contributed further to his depression. 18 In June 2009 it was decided that it was in Mr Song's interests for him to return to Korea in order to complete his studies. He is still reported to be experiencing the same symptoms and continues to receive treatment and medication at his local hospital on an outpatient basis. 19 The offender gave evidence during the course of the sentence proceedings. I was also provided with information about his background in reports prepared on his behalf by Dr Stephen Allnutt and Dr Olav Nielssen, who are both well-recognised forensic psychiatrists. The offender was born in September 1989 and was accordingly 18 years of age at the time he committed these offences. The offender is the third of four children born in Australia to parents of Chinese extraction who came here from Hong Kong. The family lived in Carlingford and the offender attended school in Eastwood until year 8 or 9. It would appear that his schooling experience was less than satisfactory because he had learning difficulties. The result was that he was a below average student. The offender reported having been bullied by other students on a daily basis. He apparently left school prematurely because he could no longer stand the bullying. The offender told Dr Allnutt that he was constantly teased because he had acne and pimples, and that, as a consequence, he became very self-conscious about his appearance. Indeed Dr Allnutt reported that the offender became "hypersensitive to others' opinion of his physical appearance [and] became concerned that others were in someway judgemental of him and this would cause him to feel angry on occasions". Given those feelings, it is perhaps a little more understandable that the offender reacted as he did when he perceived that Mr Song was staring at him in the restaurant on the night of the incident. That is not to suggest of course that any of his victims actually did anything which may have warranted the attacks upon them. On the contrary, I am satisfied that they were entirely innocent victims of the violence visited upon them by the offender and M. 20 The offender also informed Dr Allnutt that he was physically chastised on a regular basis by his parents as he was growing up. His father, in particular, punished him for performing badly at school. His resentment towards his parents eventually prompted him to leave home at the age of 15. His siblings, by way of contrast, have all attended selective high schools and are poised to do well in their respective careers. After briefly attending TAFE, the offender obtained full-time employment working in restaurants as a waiter. He lived independently for about 18 months but moved back in with his parents when he lost his job a few months before committing these offences. He was then receiving Centrelink payments and undergoing counselling for anger management. 21 The offender began using illicit drugs at an early age and by 15 he was regularly abusing ecstasy and methamphetamine (or ice) as well as engaging in binge drinking of alcohol. The evidence reveals that his drug use caused him to lose his job and that it was increasing in the period leading up to these offences. The offender reported that he felt "paranoid and depressed" after he had used ice and told Dr Nielssen that he believed "that he had been watched and that he was in danger after periods of regular use of the drug". 22 The offender gave evidence that he used ice the day before the fatal incident and that he had not had any sleep during the actual day itself. The effect of having consumed the drugs was, he said, to make him feel very anxious and paranoid. He described thinking that people were after him. As I have indicated, he denied to police that he was under the influence of drugs at the time he committed these offences. He explained his denial by saying that he had not wished to get into any further trouble by admitting that he had consumed drugs and that he did not want to be labelled as a "junkie". 23 Although his explanations for not informing the police that he had consumed drugs may appear on their face to be somewhat illogical, I am nonetheless disposed, having seen him give evidence, to accept this aspect of his testimony. I should record that he provided a similar history to Dr Nielssen to the one which he provided to the court. 24 Dr Allnutt expressed the opinion that the offender: manifested some mild residual depressive symptoms. He provided a history of some depressive symptoms in the period of time preceding his arrest with improvement since his incarceration. He also provides a long history of polysubstance abuse dating back to adolescence that persisted to the time leading up to his arrest and abstinence from substances since his incarceration with a concomitant reduction in his depressive symptoms. 25 Dr Nielssen concluded that the offender suffered from a "substance abuse disorder, substance induced psychotic illness, in remission and depressive illness with psychotic symptoms, in partial remission". The offender told the court that he has been in the prison hospital receiving treatment for his "psychiatric condition" for the last six months. Dr Nielssen confirmed that the offender had been receiving medication for symptoms of depression and that there had been an improvement in his condition. 26 Dr Nielssen was asked to provide an opinion concerning the offender's "dangerousness and risk of reoffending." In a supplementary report he concluded that his: prognosis was thought to be relatively good on the basis of the absence of the typical family background of people with entrenched antisocial attitudes, his youth, the presence of factors that can be modified and the natural history of offending, which usually declines in the third and fourth decades. 27 Dr Nielssen in that report also observed that: [the offender] was barely eighteen years old at the time of the offence. Although eighteen year olds are considered to be adults in Australia, at that age the brain and personality are still developing. The lack of judgment and impulse control is evident in the trivial nature of many of the disputes that result in fatal assaults by teenagers, especially those involving weapons. It would [be] expected that [the offender's] brain and personality will mature during the years he spends in custody accompanied by improved judgment and impulse control. [The offender's] offence was committed whilst affected by a combination of alcohol and amphetamine. … [The offender's] depressed mood, possibly accompanied by symptoms of psychotic illness, could also have contributed to his offence. Depression is associated with violent behaviour in young men in particular because of the catastrophic thinking and lack of regard for the future that often accompanies depressed mood. [The offender's] depressed mood at the time of the offence was probably a direct consequence of his recent drug use. 28 The offender has a minor criminal record for offences of dishonesty none of which has entailed a custodial sentence. In July 2007 he was placed on a bond in the Children's Court in respect of offences of obtaining money by deception and using a false instrument. In October 2007 he was placed on probation for a period of 12 months in the Children's Court in respect of offences of obtaining money by deception and goods in custody. In November 2007 he was placed on a further period of probation for 12 months in the Children's Court in respect of offences of entering enclosed lands without lawful excuse and destroying property. 29 In approaching the task of sentencing the offender, I must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). I must also pay due regard to the various aggravating and mitigating factors identified in s 21A of the Act which have particular relevance to the case. 30 It is common ground that there are a number of features of these offences which are to be regarded as matters of aggravation. The first is that they were committed in company. Secondly, each of the offenders was armed with a weapon which they proceeded to use in order to kill the deceased. Thirdly, although the offender's criminal record is of a relatively minor nature, the fact remains that he committed the present offences whilst on conditional liberty. Moreover, in relation to the serious assault upon Mr Song, the offender's actions in contacting M prior to the attack presumably for the purpose of enlisting his support should it be required, reveal a degree of preparation. I would also infer, although the offender did not implicate him, that it was M who brought the weapons to the scene. 31 On the other hand, there are a number of matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate sentence. First, he made sufficiently full admissions to police to ensure that he would be convicted of each of the offences with which he was charged. By adopting that attitude he demonstrated a measure of contrition particularly, as I have said, he had received legal advice to the effect that he was entitled not to say anything to police. Moreover, he gave evidence which I am inclined to accept, that he was remorseful for his actions. Secondly, the offender is entitled to an appropriate discount for having pleaded guilty. He did so upon his arraignment after having waived his right to a committal hearing. In my view, and this appears to be all but common ground, the offender is entitled to a discount in the order of 20% for the utilitarian value of his plea of guilty: see R v Thomson & Houlton (2000) 49 NSWLR 383. Thirdly, it is appropriate to have regard to the offender's age at the time he committed these offences. The principles to be applied in cases involving the sentencing of young offenders, especially for serious offences, are well established: see for example R v AEM (Snr) & Ors [2002] NSWCCA 58; R v Hearne (2001) 124 A Crim R 451 and R v MD & ors (2005) 156 A Crim R 372. The reports which I have received indicate that the offender's capacity to make rational decisions was compromised, at least to some extent, by his state of depression and dependency upon alcohol and drugs. I have already referred to the offender's hypersensitivity about other people looking at him. His paranoid feelings in that respect were no doubt exacerbated on the evening in question by his consumption of alcohol and illicit drugs. Moreover, he was a young man of no great emotional maturity at the time he committed these offences. The trivial nature of the incident which led the offender to conduct himself as he did indicates as much. His apparent immaturity is a matter which it is appropriate to weigh, albeit to a relatively modest extent, in his favour. Nevertheless it is axiomatic that a court must not be unduly influenced by subjective considerations, particularly where, as here, appropriate consideration must be given to the very serious criminality which the offender displayed. Furthermore, I readily acknowledge that an offender's youth cannot simply be used as a "cloak of convenience". Fourthly, although the offender could not be described as a person of "good character", it is nevertheless apparent that he does not have a "significant record" of previous convictions and certainly none for offences of violence. 32 I would describe as guardedly optimistic the offender's prospects for rehabilitation. As I understand the situation, that conclusion is consistent with the opinion expressed by Dr Nielssen. In arriving at that conclusion, I have paid particular regard to the offender's age and criminal history, to the fact that he has pleaded guilty to these offences and to the fact that he has accepted responsibility for his actions in committing them. Moreover, the offender gave evidence which I accept, that he has not committed any breaches of prison discipline and that he has remained free of illicit drugs since his incarceration. His satisfactory progress whilst in custody also augurs well for his ultimate rehabilitation. 33 Given that the offender is to be sentenced for more than one offence, it is necessary to have regard to the principles of totality. It is accepted on the offender's behalf that there must be a measure of accumulation particularly as there are two separate victims. Nonetheless, it is also appropriate to order that the sentences run partly concurrently given that the offences were committed as part of the one criminal episode. 34 As I observed earlier, the offence of murder attracts the operation of s 54A of the Act. Section 54A(2) provides that "the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness". In approaching this aspect of the matter, I have had regard to the principles set out in R v Way (2004) 60 NSWLR 168 especially at pars 117-124; 131. See also R v AJP (2004) 150 A Crim R 575 per Simpson J at par 13; R v MLP (2006) 164 A Crim R 93. 35 The Crown submitted that the offence of murder should be characterised as falling in the "middle of the range of objective seriousness". The Crown pointed to the fact that the offence, was as I have said, committed in company and that it involved the use of a weapon (although it is to be observed that that is a feature of nearly every murder). The Crown then pointed to the fact that the offence involved a measure of deliberation in that the deceased, who was defenceless, was pursued by the offender and M and then subjected to the fatal attack. 36 On any view of the matter the murder of the deceased was brutal and senseless. Nor have I been able to discern any motive for it. Moreover, the offender was quite unable to shed any further light upon the issue when he gave evidence. He also agreed that he had not previously known any of the three victims. Nonetheless, I am disposed, in the circumstances which I earlier outlined to accept the submission made on behalf of the offender, that the offence of murder should be characterised as falling below, but only slightly below, the "middle of the range of objective seriousness". In coming to that conclusion, I have had regard amongst other things, to the fact that I am not satisfied to the requisite standard that the offender intended to kill the deceased. Moreover, although the offender's actions could not be described as being entirely spontaneous, I would still regard them as being rather impulsive. By the same token it is abundantly clear that some form of violence was going to be inflicted upon the deceased even if the intention to do so was formed only shortly before it occurred. In any event, it is common ground that I should impose a non-parole period which is shorter than the standard non-parole period. I intend to proceed upon that basis particularly because of the offender's plea of guilty, the contrition which he has demonstrated and the other favourable subjective features of the case to which reference has been made. I have nevertheless kept steadily in mind that the standard non-parole period remains of relevance "as a reference point, benchmark, sounding board or guidepost". 37 Similar considerations apply in relation to the offence involving Mr Song. That was a serious offence of its kind having regard to the nature of the injuries which the victim sustained both physically and psychologically. Moreover, the offender's conduct prior to its commission, particularly in enlisting the support of M suggests, as I have said, a measure of forethought. I am inclined, in those circumstances, to accept the Crown submission that it falls within the "middle of the range of objective seriousness". 38 I accept the submission made on behalf of the offender that I should find "special circumstances" but only because of the need to accumulate the sentence for the offence of murder upon the sentence for the offence committed earlier in time. That will also result in a minor departure from the normal statutory ratio which the overall non-parole period bears to the overall head sentence. The effect of the overall sentence which I shall impose will also enable the offender to have an extended period of supervision in the community whilst on parole. 39 The offender has been in continuous custody since the date of his arrest and it is accordingly appropriate to commence the sentences which I shall impose upon him from that date. In setting the overall non-parole period, I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: R v Simpson (2001) 53 NSWLR 704.

R v Wong

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