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Supreme Court 3 December 1999

Regina v Jang

[1999] NSWSC 1153

HomicideDomestic & family violence
CRIMINAL LAW & PROCEDURE SENTENCING MURDER

Citation: Regina v Jang [1999] NSWSC 1153
Court: Supreme Court of New South Wales
Date: 3 December 1999
Judge(s): Bell J

Background

The prisoner, a 57-year-old Korean national, pleaded guilty to the murders of his wife and her adult daughter, both committed on 8 April 1998 at a residential unit in Blacktown. The central grievance motivating the offences was the wife's withdrawal of her immigration sponsorship, which the prisoner needed to secure permanent residency in Australia.

In the months before the killings, the prisoner repeatedly threatened to kill his wife and her family if she did not sign the immigration papers. He assaulted her, was served with an apprehended violence order the night before the murders, and made further threats by letter on that same evening. His wife had recently been discharged from hospital following a Valium overdose taken against the background of this sustained intimidation.

On the morning of 8 April 1998, the prisoner attended the unit armed with a knife. After a quarrel over the immigration papers, he stabbed and cut the throats of both his wife and her daughter in the presence of a third woman, who survived after being forced into the laundry. The entire attack was described by an eyewitness as being carried out with disturbing calmness.

  • What was the appropriate sentence for two counts of murder, having regard to the objective seriousness of the offences and the available mitigating factors?
  • What weight should be given to the guilty pleas, entered immediately before evidence was to be called in a trial against an overwhelming Crown case?
  • Whether the prisoner's age and first-time imprisonment constituted "special circumstances" under s 5(2) of the Sentencing Act 1989, warranting an additional term exceeding one-third of the minimum term.
  • How the prisoner's age at the time of offending and at the time of sentencing should affect the structure of the sentence.

Decision

Bell J found no mitigating factors in the circumstances of the offences themselves. The killings were premeditated, sustained, and carried out with deliberate calm. The prisoner had issued threats over months, had been served with an AVO the night before, and nonetheless attended the premises armed with a knife. The court rejected a claim that the prisoner had acted in response to "extreme provocation," finding that account inconsistent with the eyewitness evidence.

The court accepted the guilty pleas as a mitigating factor, but gave them limited weight. The pleas were entered at the very last opportunity, immediately before evidence was to be called, in the face of what the court characterised as an overwhelming Crown case. The prisoner had also surrendered to police and admitted the offences, which was noted in the assessment of the plea's value.

The prisoner's age was acknowledged as a relevant consideration in two respects. First, it was noted that he had lived an apparently law-abiding life until age 56. Second, the court applied the principle from R v Holyoak that imprisonment falls more heavily on older offenders, particularly where the person may not live to see release. Despite this, the court declined to find special circumstances under s 5(2) of the Sentencing Act 1989, concluding that no additional term in excess of one-third of the minimum was warranted.

Orders Made

  • On each of the two counts of murder: a minimum term of 18 years penal servitude, commencing 8 April 1998 and expiring 7 April 2016.
  • An additional term of 6 years on each count, commencing 8 April 2016 and expiring 7 April 2022.
  • Both sentences run concurrently from the date of the offences.

Key Takeaways

  • A guilty plea entered at the very last moment, immediately before evidence was called in a trial supported by overwhelming prosecution evidence, attracts only limited mitigation in sentencing, even though some benefit remains available to the offender.
  • Under R v Holyoak, courts are required to take into account that imprisonment falls more heavily on older offenders, including the prospect that they may not live to see release, though this principle did not reduce the minimum term in this case given the gravity of the offences.
  • The finding of no special circumstances under s 5(2) of the Sentencing Act 1989 confirmed that an additional term need not exceed one-third of the minimum term simply because the offender is of mature age or serving a first custodial sentence.
  • No weight was given to a claim of extreme provocation where the account was inconsistent with direct eyewitness evidence, and premeditation was evidenced by months of prior threats and the carrying of a weapon to the scene.
  • Surrendering to police and making admissions was treated as a relevant factor in assessing the value of a late guilty plea, though it did not independently add significant mitigation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 399A
- Crimes Amendment (Mandatory Life Sentences) Act 1996
- Sentencing Act 1989 (NSW), s 5(2)

Cases:
- R v Garforth (unreported, NSW CCA, 23 May 1994)
- R v Twala (unreported, NSW CCA, 4 November 1994)
- R v Holyoak (unreported, NSW CCA, 1 September 1995)
- R v Hampton (1994) 44 NSWLR 729