REGINA v BAE

COUNSEL : M G Sexton SC (Crown) P Bodor QC (Appl) SOLICITORS : S E O'Connor (Crown) Peter Ash & Associates (Appl) CATCHWORDS : CRIMINAL LAW; sentence; maliciously inflicting grievous bodily harm; parity; worst type of case Lowe v The Queen (1984) 154 CLR 606 at 610 CASES CITED: Ibbs v The Queen (1987) 163 CLR 447 at 449-452 Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 478 DECISION : Appeal dismissed

60516/99 WOOD CJ at CL NEWMAN J FOSTER AJ

1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Newman J. I agree with his reasons and the orders he proposes.

2 NEWMAN J: This is an application for leave to appeal against the severity of a sentence passed by B M James J on 2 September 1998. The applicant had been convicted of the crime of maliciously inflicting grievous bodily harm contrary to the provisions of s 35 of the Crimes Act 1900 which carries a maximum penalty of seven years penal servitude. 3 Before his Honour the applicant had been jointly indicted with one Chong Mun Chai on two counts of murder. The count alleging maliciously inflicting grievous bodily harm was laid in the alternative. 4 In the event the jury acquitted the applicant of murder but found him guilty on the alternative charge. His Honour sentenced the applicant to a total sentence of five years constructed as to a minimum term of three years and three months and an additional term of one year and nine months. 5 The applicant was tried as a consequence of events which happened at Kings Cross on 30 January 1997. He was an associate of his co-accused who owned a number of restaurants and bars in the Sydney area. Both he and his co-accused are Korean nationals. One of those businesses known as the Ehwa Karaoke Bar was situated at Kings Cross. 6 Earlier in 1997, namely on 6 January 1997, an episode of violence had occurred at a Korean restaurant known as the Beewon Restaurant at Kings Cross. That incident had involved other Korean nationals including one Duck Hwan Kim . 7 At the time of this violent episode, another Korean national, one Sang Hoon Lee was working in the Beewon restaurant and had fled from the scene finding sanctuary at the Ehwa Karaoke Bar. It appears that concern existed amongst Korean businessmen in Sydney that Korean gangs were causing trouble at business establishments owned by Korean nationals. 8 On the evening of 30 January 1997 Duck Hwan Kim and another Korean, Dok Su Kim arrived at the Ehwa Karaoke Bar. The applicant and Mr Chai were concerned at their presence causing the applicant, ultimately, to announce "I will teach them a lesson." 9 Contact was then made with Sang Hoon Lee and two other Korean nationals by Chai who requested them to come to the Ehwa because of the presence of Duck Hwan Kim and Dok Su Kim, whom he described as gangsters. 10 When the trio arrived, Duck Hwan Kim and Dok Su Kim were observed to be sitting in a motor car close to the Ehwa. An attack was then carried out on the occupants of the vehicle commencing with Sang Hoon Lee twice punching Dok Su Kim through the open driver's window, Dok Su Kim being in the driver's seat. 11 The other two Koreans who had arrived with Sang Hoon Lee dragged Duck Hwan Kim out of the vehicle. When Dok Su Kim got out of the car he was struggling with Sang Hoon Lee. 12 Chai and the applicant then arrived on the scene coming from the garage of the Ehwa. They were carrying wooden batons which were in fact broken pieces of a hatstand from the Ehwa. Both joined in the fray, the applicant striking Duck Hwan Kim more than once with his baton. The victims were dragged to the garage of the Ehwa being constantly assaulted by the five. 13 For the applicant's part he was continuing to hit Duck Hwan Kim with his baton during the passage to the garage. Once inside the garage the assault continued. The applicant continued to strike Duck Hwan Kim with his weapon. In the meantime others, not including Sang Hoon Lee, continued to attack Dok Su Kim. 14 On his Honour's findings the applicant's physical participation in the attack being carried out on Duck Hwan Kim and Dok Su Kim was complete at this stage. In fact the latter pair were then taken to a room above the garage where others continued the assault upon them. His Honour found that the applicant was aware of what was going on. 15 In due course, having been so requested by Sang Hoon Lee, the applicant made arrangements for the two victims to be taken to hospital. This happened and they were in fact taken to St Vincents hospital where they were left. The person who took them, one Jim Hun Jang gave a false name having delivered them to that institution. 16 In due course Duck Hwan Kim and Dok Su Kim died at the hospital. 17 Pathological evidence indicated that the cause of death in each case was blunt force head injuries resulting from multiple applications of moderate to severe force. 18 In determining the sentence of the applicant, his Honour observed as follows: "In sentencing Mr Bae it is necessary to keep in mind that Mr Bae was acquitted on all charges of murder and manslaughter and was convicted only of inflicting grievous bodily harm and that, in sentencing him, I am bound, as the Crown agreed, to disregard the fact that the victims died. Mr Bae is to be sentenced on the basis that he was a party to an agreement to assault the victims and to inflict some injury on them, that he did not intend that really serious bodily injury be caused but that, in the carrying out of the agreement, injury amounting to really serious bodily injury was in fact caused to both victims." 19 Later, his Honour said: "I have found that Mr Bae armed himself with a baton consisting of a broken piece of hatstand, that he struck Duck Hwan Kim with the baton near the intersection of Earl Street and Earl Place and that he continued to strike Duck Hwan Kim with the baton outside the garage and then inside the garage." 20 His Honour also took into account the fact that the applicant had no criminal convictions either here or in Korea and was a man of good character prior to this occurrence. 21 No issue was taken as to the findings made by his Honour which I have set out above. The argument mounted on the applicant's behalf was tripartite. It was as follows, namely that the trial judge:-

1. misdirected himself as to the applicant's criminality having regard to the jury's verdict;

2. disproportionately misapplied parity principles by, in effect sentencing the applicant to more than double the sentence he imposed on Lee;

3. sentenced the applicant excessively having regard to the applicant's established criminality, subjective considerations and the statutory maximum. 22 Sang Hoon Lee, having fled Australia (as had two others involved in the incident but who have not been apprehended) was arrested in New Zealand. When arrested he made admissions as to his part in the affray to police. He pleaded guilty to maliciously inflicting grievous bodily harm and co-operated with authorities by giving evidence against the applicant and Chai (who was convicted of manslaughter). 23 In the event his Honour sentenced Sang Hoon Lee on, as I have mentioned, the self-same charges on which the applicant stood convicted, to penal servitude for two years constructed by way of a minimum term of one year three months with an additional term of nine months. 24 In sentencing the applicant, his Honour made it clear that he was taking into account considerations of parity. In so doing he said: "It is clear that, in sentencing … I should endeavour to impose sentences which would achieve an appropriate relationship between sentences imposed on each prisoner with the sentences I have already imposed on Sang Hoon Lee. (He was sentencing both Chai and the applicant at the same time). 25 His Honour found, inter alia, that the applicant's participation in assaulting the victims was markedly greater than Sang Hoon Lee and observed that Sang Hoon Lee had been sentenced on a finding of fact that the only violence in which he personally engaged was to punch Dok Su Kim twice and wrestle with him. 26 His findings as to the applicant's participation caused him to conclude that the applicant's participation in the events themselves was greater than Sang Hoon Lee. 27 Criticism was mounted against this finding on the basis that the criminality vis-a-vis the applicant and Sang Hoon Lee was indivisible. It was put, on the applicant's behalf, that it was Sang Hoon Lee who initiated the violence when he punched Dok Su Kim through the driver's side window. 28 In my opinion his Honour's finding that the applicant's criminality was of a higher order than that of Sang Hoon Lee is obvious from the examination of the facts as found. It was he whom his Honour found had initiated the concept of the attack when he had earlier stated that he would teach the victims a lesson. 29 His participation in the attack itself involved him using a wooden baton and on his Honour's findings, exhibited more physical abuse to his victim than that utilised by Sang Hoon Lee. Accordingly I am of the view that his Honour did not fall into error in directing himself as to the applicant's criminality. 30 Not only was his Honour correct in assessing that the applicant's criminality was of a higher order than Sang Hoon Lee it must be borne in mind that Sang Hoon Lee was properly granted a discount by his Honour because (a) he pleaded guilty and (b) he gave assistance to authorities. The applicant pleaded not guilty and gave the authorities no assistance whatsoever. 31 Accordingly I am of the view that the applicant can have no proper sense of grievance as to the disproportion between the sentence he received and that imposed upon Sang Hoon Lee and thus the law as stated by Mason J in the High Court in Lowe v The Queen (1984) 154 CLR 606 at 610 has not been transgressed. 32 I turn then to the final submission made on behalf of the applicant, namely that the sentence was excessive having regard to the applicant's established criminality, the subjective considerations and statutory maximum of seven years. 33 In my view, having regard to the applicant's involvement in this appalling affray this was a case in which it was open to his Honour, despite the favourable subjective circumstances concerning the applicant, to have imposed the maximum penalty. I say this because I am of the view that the facts of this affray place the applicant's conviction on the charge of maliciously inflicting grievous bodily harm in the category of the worst type of case. See Ibbs v The Queen (1987) 163 CLR 447 at 449-452 and Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 478. 34 This being so I am of the view that the sentence passed on the applicant has not been demonstrated to be excessive. It follows that I am of the view that no relevant sentencing error has been demonstrated on the part of the sentencing judge. 35 Because of the seriousness of the matter I would grant leave to appeal but would refuse the appeal. 36 FOSTER AJ: I have had the advantage of reading in draft the reasons for judgment of Newman J. I agree with his reasons and the orders he proposes.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.