Park v R [2019] NSWCCA 105 (5 June 2019)

Last Updated: 5 June 2019

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Park v R
Medium Neutral Citation:	[2019] NSWCCA 105
Hearing Date(s):	10 May 2019
Date of Orders:	5 June 2019
Decision Date:	5 June 2019
Before:	Payne JA at [1] Harrison J at [2] R A Hulme J at [50]
Decision:	(1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed upon Tai Jin Park by Latham J on 30 June 2017. (4) In lieu of the sentence imposed by Latham J, sentence Tai Jin Park to a non-parole period of imprisonment of 21 years and 6 months to date from 26 August 2015, expiring on 25 February 2037, with a balance of term of 7 years and 3 months expiring on 25 May 2044.
Catchwords:	CRIME – sentence appeal – where appellant pleaded guilty to murder – where appellant sentenced to imprisonment for 36 years, with a non-parole period of 27 years – whether sentencing judge erred in finding murder involved a significant degree of premeditation – whether sentencing judge erred when determining objective seriousness – whether sentence manifestly excessive – appeal allowed – resentence
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 6
Cases Cited:	Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lees v R [2019] NSWCCA 65 Nguyen v R (2007) 180 A Crim R 267; [2007] NSWCCA 363 R v Afu; R v Caleo (No 17) [2018] NSWSC 1127 R v Campbell [2010] NSWSC 995 R v Nguyen [2006] NSWSC 850 R v Di Cianni and Pintabona [2013] NSWSC 1328 R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979 R v Naismith [2000] NSWSC 1024 R v Wiggins [2018] NSWSC 1142 Salafia v R [2015] NSWCCA 141
Category:	Principal judgment
Parties:	Tai Jin Park (Appellant) Crown (Respondent)
Representation:	Counsel: D Dalton SC (Appellant) M Cinque SC (Respondent) Solicitors: Ross Hill & Associates (Appellant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2015/250420
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Supreme Court of New South Wales
Jurisdiction:	Criminal Division
Citation:	[2017] NSWSC 873
Date of Decision:	30 June 2017
Before:	Latham J
File Number(s):	2015/250420

JUDGMENT

1. PAYNE JA: I agree with Harrison J and with the additional remarks of R A Hulme J.
2. HARRISON J: Tai Jin Park pleaded guilty on 1 February 2017 to the murder of Suyoung An between 18 August 2015 and 22 August 2015. He was sentenced by Latham J on 30 June 2017 to imprisonment for a term of 36 years commencing on 26 August 2015 and expiring on 25 August 2051 with a non-parole period of 27 years expiring on 25 August 2042. Mr Park appeals to this Court against the sentence imposed by her Honour upon the following grounds:

Ground 1: Her Honour erred in finding that premeditation existed to a significant degree.

Ground 2: Her Honour erred in finding that premeditation to kill and a brutal assault upon a young man whom the offender barely knew for base financial reasons placed this matter significantly above the mid-range of objective seriousness.

Ground 3: The sentence imposed was manifestly excessive.

Facts

3. The facts upon which Mr Park was sentenced are comprehensively set out between [4] and [35] in her Honour’s remarks on sentence. The presently relevant portions of those remarks are as follows:

“[4] On 12 July 2015 the victim rented a granny flat at ... Windermere Road in Epping. The granny flat consisted of three bedrooms around a central lounge/kitchen and bathroom. The largest bedroom at one end of the property was occupied by the victim. On the opposite end of the building were two other bedrooms. On 23 July 2013 one of those two rooms was rented to Mr Kwon Park (no relative of the offender) and in the first week of August 2015, the other room was rented to the offender.
[5] The victim owned and drove a grey Honda Civic sedan which he parked out the front of the premises.
[6] On 10 August 2015 at approximately 7.00pm the offender was engaged in a conversation on a Korean message service with an acquaintance, Mr Kang, in South Korea. The offender said ‘I’m just going to bring a couple of $10,000, after I have sold a website and a car.’ The offender did not have nor had ever been the owner of a car in New South Wales and had negligible money in his accounts.
[7] On 12 August 2015 at 1.00am in the morning the offender told Mr Kang that he was going to South Korea in September.
[8] On 15 August 2015 shortly after midnight, the offender requested Mr Kang’s bank account details and indicated that he would transfer money by the following week. Approximately 15 minutes later the offender contacted another acquaintance in South Korea and informed her that he would be closing down his bank accounts and advertising his car.
[9] On Tuesday, 18 August 2015 at about 9.00pm, Kwon Park left the premises for work as usual, leaving the victim and the offender at home. At some time between 9.00pm on 18 August and 7.00am on 19 August 2015 the offender murdered the victim. The events leading up to the death of the victim, the location of the assaults upon him and the use of a weapon or weapons to inflict the relevant injuries are matters that are only within the knowledge of the offender. ...
[10] At about 5.41am, CCTV at the Commonwealth Bank in Epping recorded the offender making two $1000 withdrawals from the victim’s bank account.
[11] At 7.00am on 19 August, Kwon Park arrived home and saw that the glass panel to the front door was smashed and that there was blood near the door on the porch tiles. The victim’s Honda Civic motor vehicle was not at the premises.
[12] Kwon Park used his mobile phone to contact the victim’s mobile phone which was fleetingly answered. Shortly thereafter, Kwon Park received a text message from the victim’s phone, indicating that the victim’s mobile phone had been dropped into water and that the victim was standing in front of his school. The message asserted that the broken glass panel in the front door was the product of an accident and that the victim had cut his hand, thus explaining the presence of blood. The victim’s mobile phone was at this stage being operated by the offender.
[13] Kwon Park then saw the offender pass outside the front of the premises and walk down the side of the premises to the rear.
[14] Kwon Park then received further text messages on his mobile phone from the victim’s mobile phone. Those messages indicated that there was someone coming to fix the door and requested that Kwon Park clean up the mess before they came. The message asked Kwon Park to check on ‘the other roommate’. The message asserted that the victim had gone to the hospital following the injury to his hand and then went to school. The victim purported to reassure Kwon Park that nothing serious had happened. These messages were also transmitted from the victim’s mobile phone by the offender.
[15] About 25 minutes later the offender entered the premises and denied to Kwon Park that it was he who had walked to the rear of the premises a short time before. The offender told Kwon Park that he had fought with the victim after attempting to play a prank on him. The offender said that he had surprised the victim by grabbing him from behind and shouting at him, but the victim got angry and commenced to hit the offender. The offender claimed that the victim had smashed the door. The offender had cuts and swelling on the fingers of his right hand. He said that he had stayed the night at a friend’s place and would be moving out of the premises.
[16] At approximately 11.00am on 19 August 2015 the offender rang the occupant of premises in Surry Hills in relation to the lease of a room at those premises. During the call, the offender enquired as to whether there was a car parking spot because he had a car and said he would come and view the premises. About an hour later the offender arrived in the victim’s car, albeit that the offender’s learner driver’s licence had expired on 7 July 2015.
[17] During a conversation between the offender and the occupants of the premises in Surry Hills, the offender told them that he was intending to sell the car. The offender provided $1,290 in cash by way of payment for the accommodation.
[18] Approximately an hour later the offender withdrew $10,000 from the victim’s bank account at the Commonwealth Bank on the corner of Liverpool and Castlereagh streets.
[19] Shortly after 1.00pm that day the offender spoke to a car sales business about selling a Honda sedan but no agreement on price was reached. The offender then attended Select Auto Centre on Parramatta Road at Croydon and negotiated the sale of the victim’s Honda Civic. He provided a driver’s licence in the name of the victim, registration papers for the vehicle and the vehicle’s logbooks. He gave his name as ‘Su’ and provided the mobile phone details of the victim. The offender was paid the agreed price of $8,500.
[20] At about 6.00pm the offender caught a taxi from Croydon to Chalmers Street Surry Hills. Later that evening in a series of messages on the Korean messaging service, the offender sent Mr Kang a photograph of an envelope containing Australian currency. The offender said ‘I am going to transfer the money. Probably in the morning. I am going to withdraw double the amount tomorrow and search for international money transfer. I will be bringing $10,000 in cash and send the rest...depends how much I spend. I sold the car today.’
[21] The offender included two images of the injuries to his hands, telling Mr Kang that it was from punching. Later that evening on the messaging service, the offender informed another person that he had sold the car that day. That evening the offender had dinner at a Thai restaurant in Pitt Street Sydney with a former work acquaintance. That person took photos of the offender’s hands. The offender said that he had been in a fight with two middle-aged men and that his tooth hurt.
[22] At about 10.00am on 20 August 2015 the offender withdrew $49,000 in cash from the victim’s account at the Commonwealth Bank on the corner of Liverpool and Castlereagh streets. A further $1000 was withdrawn by the offender from the victim’s bank account via a Commonwealth Bank ATM.
[23] A short time later the offender purchased a quantity of clothing and a backpack for $379.85 using the victim’s funds.
[24] At 12.30pm the same day the offender attended a grocery store in Pitt Street and made arrangements for the transfer of money to Korean bank accounts. The offender provided $60,000 in cash to the shopkeeper who completed a currency conversion to Korean Won and then remitted two separate amounts to two nominated Korean bank accounts. The balance was returned to the offender. These were the victim’s funds.
[25] In the afternoon of that day the offender purchased a Tag Heuer watch for $6,750 using the victim’s funds. The watch and the receipt were recovered during a search of the offender’s premises at Surry Hills on 25 August 2015 and during a search of the offender’s mother’s premises on 1 September 2015.
[26] That same afternoon the offender purchased further luxury items, including a suitcase, totalling approximately $1,500. The offender also purchased a one-way business class airline ticket to Korea in the sum of $2,600 in cash for travel on 3 September 2015. He made arrangements with the Korean Consulate to obtain a passport. Two further withdrawals from the victim’s bank account, namely $500 and $470 were also made by the offender. The offender also sent a text message from the victim’s mobile phone to Kwon Park asking the latter to have his rent money available for collection.
[27] On Friday, 21 August 2015 the offender returned to the grocery store where he completed documents for the further transfer of Korean money to two separate accounts. The offender also arranged for two parcels of luxury items to be sent to South Korea, providing his own name, address and mobile phone number as the sender of the package.
[28] By the morning of 22 August 2015, the victim’s younger brother became concerned regarding the victim’s whereabouts. He attended the premises in Epping, spoke to Kwon Park and was told about the broken door panel. They discovered a sledgehammer, with blood and black hair on it at the rear of the premises behind the offender’s bedroom window. They contacted police.
[29] Police attended the premises, took possession of the sledgehammer, took swab samples of blood located near the broken glass in the door, on the sledgehammer and on the mattress of the bed of the offender. There was also blood splatter on a kitchen tidy bin.
[30] At about 5.30pm later that day the victim’s body was found inside a green council bin placed near the roadway around the corner from the premises occupied by the victim and the offender. Police examined the contents of the bin and found the victim in a foetal position, wrapped in a large orange plastic bag, inside a suitcase. The victim was wearing pyjamas and a black long sleeved top. Black electrical tape was wrapped tightly around the neck and wrists. The body was also tied up with red rope around the hands, torso and legs.
[31] Following a full forensic examination of the premises and other relevant items, the victim’s DNA was found in the blood on the iron head of the sledgehammer. The offender’s DNA was found at various places along the handle of the sledgehammer. The victim’s DNA was also found in bloodstains on a number of surfaces inside the premises including the door handle and both sides of the front door, a PlayStation controller, table, and wall in the victim’s bedroom, a window blind in the dining room, a TV remote control in the lounge room, the refrigerator door, the handle, interior and outside of the kitchen bin, the bathroom sink spout and the shower screen door, the mattress in the offender’s bedroom, and a wall opposite Kwon Park’s bedroom door.”

4. Mr Park was arrested on 24 August 2015 and participated in a recorded interview with the police. He denied attacking or injuring the victim. Mr Park was interviewed again the following day but exercised his right to silence. He was then charged with murder.

Ground 1

5. Her Honour found that the offence was premeditated, as the following passage from her remarks on sentence reveals:

“[46]... I am satisfied beyond reasonable doubt that the offender formed the intention to steal from the victim shortly after he moved into the premises, when it became apparent that the victim was from a supportive and comparatively wealthy family. The offender knew that the death of the victim was the only means whereby he could gain access to the bank account and the car. He decided, in effect, to assume the victim’s identity for those purposes. The offender’s own family background was lacking in financial and emotional support. He had largely fended for himself since his mid teens and he lacked direction and purpose. The combination of the evidence I have outlined, together with the offender’s personal circumstances, provide a powerful case for premeditation to a significant degree. The fact that the offender did not have a ready means of leaving the country does not detract from that finding. The offender demonstrated by his conduct after the murder that his primary concern was enjoying the fruits of the thefts.”

6. Mr Park contended in this Court that her Honour’s finding was erroneous. He conceded that the offence was premeditated but challenged her Honour’s adjectival assessment of it as “significant”.
7. In my opinion, her Honour’s assessment is unexceptionable. That is for the following reasons.
8. The conversation on 10 August 2015 with Mr Kang in South Korea is arguably consistent with Mr Park having already decided to kill the deceased and take his money. Mr Park had never owned a car, as her Honour pointedly observed, and had no funds of his own at the time from which he could have sourced anything approaching thousands of dollars. The events that later occurred were entirely consistent with the conversation some week or so earlier. Indeed, as far as the evidence went, the conversation is otherwise inexplicable. Mr Park’s further dealings with Mr Kang, and his contact with another acquaintance thereafter indicating that he would be closing bank accounts and advertising “his” car for sale further support the proposition that Mr Park anticipated that he would shortly come into funds and have a car that he could sell. The subsequent sale of the deceased’s car assists the inference that his plan to kill the deceased had clearly predated the commencement of the period within which the murder later occurred.
9. Mr Park’s withdrawals from the deceased’s bank account are also consistent with a pre-existing plan to kill him. Although the speed with which the first two withdrawals occurred, being in the early hours of the morning of 19 August 2015, might on one view suggest an opportunistic and unplanned killing, in which the murderer took advantage of a spontaneous crime, that could not have been so in the present case. That is because the withdrawals occurred at a teller machine in which Mr Park gained access to the account of the deceased using his PIN. Although Mr Park argued that he obtained the information about the PIN by chance, suggesting that he saw the deceased using the number and that he remembered the sequence, it was clearly open to her Honour to reject that as unlikely and to consider that he acquired the relevant number from the deceased by some more occult means with a view to using it after his death.
10. In order to sell the deceased’s car, Mr Park effectively adopted the deceased’s identity and utilised the documents in the deceased’s possession, such as the registration papers and his driver licence, to do so. It is highly unlikely that Mr Park would have been speaking of selling the deceased’s car in the week or so beforehand if he had not at that early stage organised the acquisition of the necessary papers or had a reasonable expectation that he would have them. Perhaps most obviously, if Mr Park’s references to selling a car were in truth references to the deceased’s car, the sale of the vehicle would have been practically impossible or at least difficult if the owner were still alive and using it. The car was in fact finally sold on the afternoon of 19 August 2019 after a series of inquiries with dealers that would appear to have commenced only some four and a half hours beforehand. The manner in which this relatively sophisticated transaction occurred is arguably inconsistent with a spontaneous decision to offer the car for sale.
11. On 20 August 2015, Mr Park somehow managed to withdraw the sum of $49,000 from the Commonwealth Bank. That transaction would necessarily have been an over-the-counter transaction with a teller. How Mr Park was in the circumstances able to effect it without raising any suspicion or closer examination by the bank is unknown. Within ten minutes of that transaction Mr Park had withdrawn a further $1,000 from a teller machine at the same bank.
12. It is important to understand that her Honour’s comments and findings about the extent of Mr Park’s premeditation have to be considered in the context of the events that led to and culminated in the commission of the offence with which Mr Park was charged and to which he pleaded guilty. Her Honour’s assessment that there was a powerful case for Mr Park’s premeditation to a significant degree is not to be judged by reference to an empirical standard but by a consideration of what Mr Park himself did in the time period in question.
13. Mr Park gave evidence at the sentencing proceedings at some length. In summary, his evidence was to the effect that a fight broke out between the two men when Mr Park returned from a trip to a convenience store to buy cigarettes. His evidence included the following answers:

“Q. You have lost me here. You are in your room. You decided to go to the 7-Eleven to buy cigarettes. You decide to leave your room. Which way out of the house did you decide to go?
A. To the entry.
...
Q. Did you take some money with you?
A. Yes
Q. What happened then after you go out the front door?
A. I was coming back to the house after he had a cigarette so I just want to have a joke with him and I just scare him but it is...
Q. What did you do? None of us were there. What did you do?
A. Just it was dark. It is not light in the house, only in our room. His room and my room is like a light but in the living room it does not have a light.
Q. What did you do?
A. I just like scare him.
...
Q. What did you do or say?
A. I didn’t say anything, just like he was like scared.
...
Q. Do you say that you were inside your room and you jumped outside the room to scare him?
A. I was next to the entry doors inside. I was like scare him.
Q. Then what happened?
A. Just a little punch each other.
Q. What happened after you scared him, who does what?
A. He punch me straight away.
Q. Whereabouts?
A. The face, because my glasses fell off at the time and then I was like, I tried to stop it and just like give him I just picked up the – we didn’t take anything at the time, I just like a little bit like joke, pissed off at the time.
Q. Do you say pissed off at him?
A. I was pissed off. He was pissed off. I was pissed off too. For me it was funny, he took (sic) serious. It was like it was a joke, that is why he was pissed off. Anyway after that I just picked up my glasses
...
Q. What happened then?
A.I went to the 7-Eleven. I got my cigarettes and I bought some drinks and then I came back home around 1 o’clock.
Q. 1am?
A. A little bit before 1 am and after that I really found out he was like – he was in my room and then he saw my passport was getting expired and he was like “Explain to me”, like ask me why, what kind of business I had and blah blah blah.
Q. Pause there. He found out that your passport was expired. Where was your expired passport?
A. In the desk in the drawer and the drawer was open at the time I walk in. I don’t know if it was closed or open at the time.
Q. What happened then?
A. I was full angry. I just feel like I did something wrong and then I got upset and we just deal with it.”

14. Mr Park then said that he became angry because his status as an unlawful resident in Australia had been revealed so that everything he had been telling the deceased “had been a lie that was exposed”. That included where he worked, what kind of visa he had, that he had a lot of money, and that he had been working in a restaurant to get a sponsor for his citizenship. He said that when these lies were exposed he was “fully angry that my life become – got busted”. He said the deceased thereafter talked down to him.
15. Mr Park said that the fight continued for about thirty minutes. He said:

“A. So we started off hitting each other and then – then fell on the floor, and I sat up on him and I hit him with my elbows and punched him and I just kept – I kept doing that repeatedly and that was all.”

16. Mr Park went on to say that he was “like really totally angry” and it “was out of control so I was thinking nothing really”. He also said he was panicking because he had lost control.
17. If one were to accept this version of events it could support an inference or a finding that the death of the deceased arose as the result of Mr Park losing control in the way that he claimed and without premeditation. However, her Honour dealt with Mr Park’s version of what occurred at [46] of her remarks on sentence. Her conclusion was clearly open to her. This is apparent from what her Honour said in the following paragraphs:

“[37] Raymond Yew gave evidence of a conversation with the offender which, according to his statement of 9 November 2015, occurred two or three weeks before the victim’s body was found, that is, in the first or second week of August 2015. The offender commenced working at a Beecroft restaurant with Mr Yew within a few days of the offender moving into the victim’s premises.
[38] However, Mr Yew also stated that within a few days of the conversation, the offender ceased coming to work with him and that it was the last time he saw the offender. That would place the conversation in the days leading up to 18 August.
[39] According to Mr Yew, the offender asked Mr Yew if he knew where the offender might purchase a bag or luggage large enough to contain a human. Mr Yew joked with the offender that he was considering taking a friend back with the offender to Korea. The offender had made no secret of the fact that he intended to go back to Korea in the near future. Mr Yew was challenged on his version of the conversation but remained firm in his account. The offender maintained that it was Mr Yew who referred to the luggage being large enough to contain a human.
[40] Given the offender’s general unreliability as a witness and Mr Yew’s insistence on the terms of the conversation, I am satisfied beyond reasonable doubt that the offender did make such an enquiry of Mr Yew a matter of days before the offender murdered the victim.
[41] The evidence of the offender was unsatisfactory in a number of respects. The offender initially gave evidence of an altercation with the victim provoked by the victim’s reaction to the offender’s attempt to play a harmless prank upon him. The offender said he left the house briefly to go to a shop and then returned to find that the victim had discovered that the offender’s visa had expired. The offender became angry that his status as an unlawful resident had been exposed and a sustained physical fight ensued that ranged throughout the premises.
[42] The offender claimed that at some point he considered that the victim was dead. He managed to truss up the body, place it inside an orange plastic bag, place the plastic bag inside a suitcase with wheels and drag the whole bag to the rear of the premises. Once outside in the back courtyard, the offender said that he felt some movement from inside the bag and became scared. He grabbed an implement, a sledgehammer, which happened to be nearby and struck the outside of the bag a number of times with it.
[43] This account is implausible on its face, given the forensic evidence, in particular the victim’s blood and hair on the iron head of the sledgehammer and the nature of the injuries to the victim’s head. The presence of the victim’s blood throughout the premises suggests a sustained, vicious attack upon the victim who was pursued through almost every room of the house.
[44] Following a short adjournment to allow a report from Dr Nielssen to be obtained, the offender gave further evidence which suggested that he ‘dreamt’ or remembered different versions of what occurred that night. To Dr Nielssen the offender said that he did not remember the day of the murder and could not tell if his memory of the events was real or imagined. He had no memory of the victim knowing about the expired visa. He had no reason to be angry towards the victim. The offender admitted he used the sledgehammer with the intention of killing the victim.
[45] The offender’s acknowledged unreliability pervades his account, not just in relation to the assault upon the victim, but also in relation to the theft of the vehicle and the victim’s funds. The offender maintains that the messages exchanged with friends in Korea which suggested that he intended even then to kill and rob the victim were nothing more than lies which he routinely told about his material circumstances. He insists that he only formed the intention to steal from the victim’s bank account after the murder and that he saw the banking app for the account on the victim’s phone, together with his wallet and keys on the hall table. It is put on his behalf that such a degree of premeditation as is suggested by the Crown is inconsistent with the absence of a passport and no means of leaving the country.”

18. It is important to bear in mind the difference between premeditation to a significant degree on the one hand and the formation of a sophisticated and guileful plan on the other hand. It seems clear that Mr Park’s activities, including his conversations, that came to light after the murder were not performed by an offender with a keen eye for self-preservation. The conversation concerning the suitcase is perhaps the best example of this. However, as apparently guileless as Mr Park’s activities appeared to be, they are entirely consistent with a plan, formed well in advance, to murder the deceased and steal his assets. Her Honour’s rejection of Mr Park’s curious versions of what occurred is unexceptionable. Her Honour’s characterisation of Mr Park’s activities as consistent with premeditation to a significant degree is equally difficult to fault.
19. I would reject ground 1.

Ground 2

20. At [47] of her remarks on sentence her Honour said this:

“Taking these matters into account, the objective gravity of the offence is significantly above the mid-range for an offence of murder. Premeditation, an intention to kill, and a brutal assault upon a young man whom the offender barely knew for base financial reasons place this offence in the more serious category than many instances of murder coming before the courts.”

21. Mr Park contended that an offence involving premeditation, even premeditation for financial reward and involving a level of brutality does not necessarily elevate the objective seriousness of the offence above the mid-range. He relied upon a comparison with a series of cases in order to make good that submission.
22. In R v Nguyen [2006] NSWSC 850, R S Hulme J sentenced an offender for murder after a trial. The motive for the crime could not be established but his Honour concluded that the offence was a premeditated and cold-blooded execution. His Honour concluded that the offence was above the middle range of objective seriousness and sentenced the offender to imprisonment for 31 years with a non-parole period of 23 years. On appeal, this Court found error in the assessment of objective seriousness: Nguyen v R (2007) 180 A Crim R 267; [2007] NSWCCA 363 at [138] – [144]. The offender was re-sentenced to a term of imprisonment of 27 years and 4 months with a non-parole period of 20 years.
23. Smart AJ indicated at [143], with which Mason P and Adams J agreed, that an “intention to kill and premeditation are usual elements in a murder of mid range objective seriousness”. It may with respect have been the view of the Court that those elements were not unusual elements in a murder of that seriousness, but that is not the way in which it was expressed. Be that as it may, the case remains instructive for present purposes both with respect to the level of violence involved in the death of the victim and the sentence imposed by this Court in those circumstances.
24. In R v Campbell [2010] NSWSC 995, Latham J sentenced the offender after trial to a term of imprisonment of 33 years with a non-parole period of 24 years. That was a case in which the offender pushed his then wife off a cliff during a planned camping trip in the Royal National Park. The offence involved a high level of planning and the hope of financial gain. At [43] her Honour said this:

“Taking all of these objective circumstances into account, I would assess the offence as well above the mid range of seriousness for offences of murder. Notwithstanding the commission of the offence for financial gain and the extensive premeditation, I do not regard the offence as so serious that it justifies an assessment just below the worst category. The objective gravity of the offence warrants a non-parole period in the order of 25 years...”.

25. In R v Di Cianni and Pintabona [2013] NSWSC 1328, R S Hulme AJ sentenced the offender to an overall sentence of imprisonment for 34 years with a non-parole period of 30 years for two murders. His Honour sentenced the offender to individual sentences of imprisonment of 24 years partially accumulated. The offender was convicted after a trial of a highly planned murder of a business partner and the killing of that man’s brother so as to facilitate the former offence. His Honour found that both offences were marginally above the mid-range of objective seriousness:

“[37] So far as objective seriousness is concerned, I would assess both of the murder offences as marginally above mid-range. Relevant although not determinative in that regard are the remarks of the Court of Criminal Appeal in Nguyen v The Queen (2007) 180 A Crim R 267; [2007] NSWCCA 363 at 143 to the effect that an intention to kill and premeditation are usual elements in a murder of mid-range objective seriousness. In this case there are the additional features of the offences occurring in the victims' home, the persistence and subjectively traumatic nature of the attacks and, in the case of the murder of Mario, the absence of any motive that, even in this discrete area of human activity, could be regarded as reasonable.”

26. Mr Park also referred to R v Naismith [2000] NSWSC 1024 in which Dunford J sentenced an offender convicted after trial for two murders involving a plan borne of revenge concerned with drug dealings. Following the murders, the offender took the victims to nearby sand hills and burnt their bodies. His Honour imposed two wholly concurrent sentences of 33 years imprisonment with non-parole periods of 25 years. At [14] his Honour characterised the offences as “objectively very serious”. (The imposition of concurrent sentences for two murders is in any event a misapplication of the totality principle. The sentence for one murder clearly cannot ever contemplate the criminality in another murder).
27. Mr Park also drew attention to R v Evans; R v Rawlinson; R v Proud [2014] NSWSC 979. In that case, Mr Rawlinson was sentenced after trial for murder to imprisonment for 36 years with a non-parole period of 27 years. The deceased was killed pursuant to a joint criminal enterprise that involved a plan to enter her home in suburban Corrimal while she was asleep upstairs and set her bedroom alight with the assistance of petrol that was ignited as the result of which she was incinerated. My view of the objective seriousness of that crime was described at [158]:

“Mr Rawlinson's crime is a very serious case of murder. It lies well above the mid-range of seriousness for cases of its type. It is not in the worst category, and does not warrant the imposition of a life sentence. It is however a crime of terrible and extreme violence, perpetrated in the detailed circumstances to which I have already referred. It was described during final addresses to the jury by Mr Rawlinson's counsel as a ‘cowardly, cruel, horrible murder, about which there could be no question.’ I adopt that description.”

28. More recently in R v Afu; R v Caleo (No 17) [2018] NSWSC 1127, R A Hulme J sentenced Mr Afu after trial to imprisonment for 20 years with a non-parole period of 15 years for murder. Whilst a feature of that case was the relevance of different sentencing patterns adopted at the time of the murder (1990), his Honour’s description of the objective seriousness of the crime is instructive:

“[59] Alani Afu repeatedly and brutally stabbed Rita Caleo to death. He did so after invading the private sanctuary of her bedroom in the middle of the night. Indicative of his clear intention to kill, Ms Caleo was slightly built and not very tall (50kg and 156cm) but Mr Afu stabbed her until he was satisfied that he had achieved his purpose. There were 23 stab wounds.
[60] Mr Afu's one motivation was personal greed. He acted as a hired killer; carrying out his master's bidding with little hesitation. The horror of what he had done had little impact upon him; within days he had squandered the proceeds of his crime on a frivolous motor car.
[61] There was little controversy at the sentence hearing as to the level of objective seriousness of Mr Afu's crime of murder. I accept that it is in the high range.”

29. Mr Park contended that these cases are examples of premeditated murders of similar or greater seriousness than his offence in which the sentences imposed were less, and in some case markedly less, than the sentence imposed upon him. He challenges her Honour’s assessment of his crime as significantly above the mid-range of objective seriousness having regard to these comparisons. He submitted not merely by reference to these comparative cases but more generally, that the subject offence was not above the middle level of objective seriousness and certainly not significantly so as to elevate it into a category just below offences in the worst category requiring sentences of life imprisonment.
30. The Crown in response referred to Lees v R [2019] NSWCCA 65 at [55]:

“This Court has said on many occasions that the task of assessing the objective seriousness of an offence is “quintessentially for the sentencing judge” (Mulato v R [2006] NSWCCA 282 at [46]; Baladjam v R [2018] NSWCCA 304 at [267]). The Court has therefore been ‘very slow’ to determine such matters for itself or to set aside the judgment made by the first instance judge exercising a broadly based discretion (Mulato v R at [37] per Spigelman CJ).”

31. To like effect in Salafia v R [2015] NSWCCA 141 at [90]:

“A ground of appeal asserting error in the assessment of objective seriousness should be advanced only where specific error of the sort referred to in House v The King can be identified rather than, as seems to be commonly the case, a complaint routinely made. Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively ‘correct’ answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment.”

32. The Crown also very helpfully made reference to what Latham J herself had had to say in R v Wiggins [2018] NSWSC 1142, a case in which the offender was found guilty of the shooting murder of a person who he believed had been responsible for his friend’s death. He was sentenced to a non-parole period of imprisonment of 24 years and 6 months with a balance of term of 8 years and 6 months. Her Honour said this at [19]:

“The offender’s Senior Counsel referred to R v Campbell [2010] NSWSC 995, R v Di Cianni and Pintabona [2013] NSWSC 1328, R v Naismith [2000] NSWSC 1024 and R v Nguyen [2006] NSWSC 850 by way of demonstrating that the objective gravity of this offence fell below that identified in those cases, and inferentially, that the penalty imposed in each of those cases provided some guidance for the purposes of sentencing this offender for the murder. It is trite to observe that every sentence is a product of the instinctive synthesis of objective and subjective factors in each case. Those factors are infinitely variable. There is therefore limited assistance to be derived from a comparison with other cases; Perkins v R [2018] NSWCCA 62 at [60] to [63]. In any event, the objective gravity in Di Cianni was said to be marginally above the midrange, whilst on appeal in Nguyen the objective gravity was assessed at mid-range; Duong Hai Nguyen v R [2007] NSWCCA 363. In Naismith, Dunford J simply stated that the offences were ‘very serious’. Assessment of objective gravity is an evaluative discretionary judgment on which minds can, and do, differ.”

33. Her Honour concluded in that case that the offence fell within the upper range of objective gravity.
34. It is precisely because the assessment of the objective seriousness of an offence is an evaluative discretionary matter that reference to previous decisions in similar cases is so fraught with difficulties. As even the limited reference to the cases cited above shows, there does not appear to be any reliable relationship that can be observed to exist between an assessment of any particular degree of objective seriousness and the sentence imposed. Some cases described as well above the mid-range are associated with sentences that are smaller than the present case. Campbell is perhaps an important example of that. Correspondingly, many cases in which the facts appear to be the equivalent of the present case are described as in the mid-range of objective seriousness. Nguyen is an example of that, and yet the sentence ultimately imposed in Nguyen was not significantly dissimilar to the sentence imposed in Campbell.
35. The manner in which her Honour expressed her assessment is necessarily imprecise. It is open to the interpretation that she found that it was above the mid-range, and not marginally so, but no higher than that; certainly not at or near the highest range of objective seriousness. Such an assessment was open to her Honour, although because minds may differ about assessments of this nature (within legitimate bounds), it would also have been open to her Honour to have found that the objective seriousness was within the mid-range.
36. Accordingly, in the present case, it cannot be said that her Honour erroneously characterised the offence as significantly above the mid-range of objective seriousness. As the authorities make clear, that assessment is difficult to challenge given the idiosyncratic way in which judges are permitted to exercise their sentencing discretions. Having considered the facts in this case in detail, and accepting that every case of murder is serious, the comparative exercise that her Honour was required to undertake in order to assess where in the range of seriousness this case fell cannot be said to have miscarried. Without attempting to be prescriptive, factors that could be present in cases described as significantly above the mid-range might include gratuitous cruelty, contract killings, causing death in a way likely to cause excruciating pain or agony or particularly doing so in order that the process of dying occurs over an extended period or where the victim might have had undue time to contemplate the terror of what was coming. Her Honour found that the deceased was killed as the result of a vicious attack as he was pursued through almost every room in the house, as suggested by the presence of his blood throughout the premises. Her Honour’s opinion that the death of the deceased was committed in circumstances that elevate the offence committed by Mr Park to a level significantly beyond the mid-range of objective seriousness cannot therefore be criticised.
37. This ground of appeal is not made out.

Ground 3

38. However, I am of the view that her Honour’s sentence is manifestly excessive.
39. It is unnecessary for present purposes to include specific or detailed references to the relevant authorities. It is uncontroversial that demonstration of manifest excess requires satisfaction that the sentence imposed is unreasonable or plainly unjust. I consider that Mr Park’s sentence was unreasonable and plainly unjust.
40. Her Honour detailed Mr Park’s relevant subjective features in her remarks on sentence as follows:

“Subjective Features
[49] The offender is presently 28 years of age. He is a South Korean national who has been living in Sydney since the age of 12. He arrived in 2002 on a student visa to continue his education and lived initially with a Korean family in Strathfield. His mother was largely absent from his life, and he was raised by his grandparents in South Korea. He had no relationship with his father. His mother came and went from Korea and Australia during the offender’s adolescence. There were short periods when he resided with his mother but otherwise from the age of 16 he found his own share accommodation and worked casual jobs so that he could attend school. He finished Year 12 and has worked in restaurants and doing cleaning jobs since that time.
[50] The offender has no prior convictions. I accept that he is genuinely remorseful and contrite and cannot explain how his life has come to this. He recognises that he is prone to violent outbursts of temper. His mother has in the past been exposed to his anger, which was one reason for their estrangement. Since the offender’s incarceration for this offence, his mother has been supportive and has demonstrated deep concern for her son.
[51] It is difficult to gauge the offender’s prospects of rehabilitation. On the one hand, he is developing some insight into his behaviour and he has reconciled with his mother. On the other hand, his attempts to minimise his culpability notwithstanding his plea is a matter of concern. On the whole, I view his prospects of rehabilitation as moderate.
[52] The reports of Mr Borenstein and Dr Nielssen explain the origins of the offender’s depression, isolation and deep sense of abandonment. The offender wanted to remain in Australia and feared returning to Korea permanently because of the threat of conscription. However, he had no residency status and had been living for some years prior to the offence in a state of heightened vigilance. He expected to be detained and deported if he was exposed as an illegal immigrant. All this goes a considerable way towards explaining the offender’s motives and state of mind when he resolved to kill the victim, but it cannot excuse or in any way justify the offence.
[53] On the basis of the material available on sentence, I am unable to make a finding in relation to future dangerousness. Much will depend upon the offender’s response to treatment within the prison system and thereafter.”

41. I consider that Mr Park’s relative youth, his complete absence of any criminal record, and his genuine remorse are factors militating in favour of a lesser period of imprisonment. Mr Park is also not characterised by her Honour as presenting a discernible prospect of future dangerousness although that remains to be seen. Her Honour considered that his rehabilitation prospects were moderate.
42. It is clear that the starting point for her Honour’s consideration of Mr Park’s sentence was an undiscounted term of 40 years. The head sentence of 36 years after a 10 per cent discount for his plea remains above what I consider to be a reasonable or just sentence for this offence. A non-parole period of 27 years is significantly out of step with the sentence imposed by her Honour in Campbell. The sentence is the same as the sentence imposed upon Mr Rawlinson for a sophisticated plan with others to cause death, the terrifying circumstances of which are difficult to imagine.
43. In my opinion, ground 3 is made out.

Resentence

44. I am satisfied that some other sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912. Having regard to my conclusions, it is necessary that Mr Park be resentenced afresh in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
45. I accept her Honour’s analysis of Mr Park’s subjective case. No submissions were received in this Court that her Honour’s findings in that respect were erroneous and I adopt them.
46. In my opinion Mr Park’s offence is above the mid-range of objective seriousness for offences of murder. It was premeditated and planned, albeit somewhat haphazardly. The death of the deceased was violent but not in a way that sets it apart from cases coming before this Court with unfortunate regularity. Mr Park is from a non-English speaking background and the sentencing proceedings appear to confirm that his level of English is low. He might be expected to find that his time in an English speaking gaol will be more difficult as a result.
47. Her Honour did not find special circumstances for the reasons that she explained. I would also adopt her Honour’s reasoning in that respect. I am correspondingly in no better position than her Honour to make an assessment of Mr Park’s prospects of rehabilitation. A discount of 10 per cent for the utilitarian value of the plea of guilty remains appropriate.
48. The offence is in my view a proper vehicle for general deterrence. The fact that it was planned and perpetrated with a view to financial advantage is alone sufficient to require significant denunciation. Some degree of special deterrence is also appropriate having regard to the uncertain nature of Mr Park’s post-release prospects.
49. In all of the circumstances I consider that the following orders should be made:
    • (1) Grant leave to appeal.
    • (2) Allow the appeal.
    • (3) Quash the sentence imposed upon Tai Jin Park by Latham J on 30 June 2017.
    • (4) In lieu of the sentence imposed by Latham J, sentence Tai Jin Park to a non-parole period of imprisonment of 21 years and 6 months to date from 26 August 2015, expiring on 25 February 2037, with a balance of term of 7 years and 3 months expiring on 25 May 2044.
    • (5) The first day upon which Tai Jin Park will become eligible for parole is 26 February 2037.
50. R A HULME J: I agree with Harrison J.
51. I wish to add a comment about one of the cases his Honour has mentioned, Nguyen v R (2007) 180 A Crim R 267; [2007] NSWCCA 363. Mr Park relied upon a statement there made by Smart AJ (at [143]): "An intention to kill and premeditation are usual elements in a murder of mid range objective seriousness".
52. It is unfortunate that the statement has been taken out of context and has been misconstrued as indicating that the presence of these two matters indicates that a murder offence falls within the mid-range of objective seriousness. That may be the way R S Hulme AJ regarded the statement in his reference to it at [37] of his judgment in R v Di Cianni and Pintabona that Harrison J has set out above at [25].
53. In the present case, Mr Park sought to characterise it as a statement that "offences of murder involving premeditation and an intention to kill are in the middle range" (10.5.19 at T6.20). But Smart AJ cannot be taken to have been conveying a proposition so broad. The context in which he made the statement indicates that he was not. That context indicates that the two features mentioned can be found in a middle of the range offence; in other words they are not unusual elements of such an offence. The fact that his Honour cannot have intended any more than that is exemplified by the fact that those features are also often part of the objective facts in offences in the worst case category.

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