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Court of Criminal Appeal 2 June 2008

Yun v R

[2008] NSWCCA 114

Also reported as (2008) 185 A Crim R 58
Homicide
SENTENCE APPEAL MURDER APPLICATION OF STANDARD MINIMUM NON PAROLE PERIOD ERROR IN USING STANDARD MINIMUM NON

Citation: Yun v R [2008] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 2 June 2008
Judge(s): Beazley JA, Barr J, Hoeben J

Background

The applicant was convicted by a jury of murdering a co-resident following a prolonged altercation on the night of his birthday in May 2003. The incident began as a dispute during a night of drinking, escalated into a street fight, and ended with the applicant returning to the shared premises, obtaining a knife, and fatally stabbing the deceased three times in the chest and once in the neck. The applicant had argued self-defence and accident at trial; the jury rejected both.

At sentencing, Newman AJ found that the applicant had formed an intention to kill before the stabbing, relying on threatening words the applicant had spoken and the number of wounds inflicted. His Honour concluded that this intent placed the offence somewhere between the mid-range and a higher range of objective seriousness. The applicant was sentenced to a non-parole period of 20 years, which matched the standard minimum non-parole period prescribed for murder under the Crimes (Sentencing Procedure) Act 1999.

The applicant sought leave to appeal against that sentence, arguing that the sentencing judge had erred both in his assessment of objective seriousness and in his approach to applying the standard non-parole period.

  • Whether intent to kill, standing alone, is sufficient to place a murder offence above the mid-range of objective seriousness
  • Whether the sentencing judge erred by treating the standard minimum non-parole period as a starting point for the sentencing exercise, rather than a reference point
  • What sentence was appropriate on resentencing, having regard to both the objective seriousness of the offence and the applicant's mitigating circumstances

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in two respects. First, while intent to kill is a serious aggravating feature, it does not by itself automatically elevate an offence above the mid-range of seriousness. The Court accepted the Crown's submission that, when the intent to kill was considered alongside the use of a weapon and some degree of premeditation, the offence properly sat at the mid-range rather than above it.

The second, and more clearly established, error concerned the judge's use of the standard non-parole period. The Court confirmed that the standard non-parole period of 20 years must function as a reference point, not a starting point or mathematical fulcrum. By effectively commencing the sentencing exercise at the standard non-parole period and then adjusting from there, the sentencing judge fettered the sentencing discretion in a manner inconsistent with established authority, particularly the approach set out in R v Way (2004) 60 NSWLR 168.

On resentencing, the Court accepted that significant mitigating factors applied, including genuine remorse, a low likelihood of reoffending, and the particular hardship the applicant would face in custody due to lack of family support. Weighing these against an objective seriousness assessed at the mid-range, the Court substituted a head sentence of 24 years with a non-parole period of 18 years.

Orders Made

  • Leave to appeal granted and appeal allowed
  • The sentence imposed by Newman AJ on 11 April 2006 is quashed
  • In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 18 years commencing 9 May 2003 and expiring 8 May 2021, with a balance of term of 6 years expiring 8 May 2027

Key Takeaways

  • Intent to kill, while a serious matter, does not alone place a murder offence above the mid-range of objective seriousness for the purpose of applying the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999.
  • The Court of Criminal Appeal confirmed that the standard non-parole period must be used as a reference point in the sentencing process, not as a starting point from which a judge oscillates by reference to aggravating and mitigating factors.
  • Where a sentencing court treats the standard non-parole period as a fulcrum or anchor for the sentencing exercise, it commits a legal error that can ground a successful sentence appeal.
  • Mitigating factors such as remorse, low prospects of reoffending, and the particular difficulties an offender will face in custody remain relevant and can produce a non-parole period meaningfully below the standard minimum, even where objective seriousness is assessed at the mid-range.
  • In allowing the appeal, the Court reduced the non-parole period from 20 years to 18 years, illustrating that the correct application of the standard non-parole period framework can produce a materially different sentencing outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 19A(1), 19A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 54A, 54B, Division 1A of Part 4

Cases
- R v Way (2004) 60 NSWLR 168
- Markarian v The Queen (2005) 79 ALJR 1048
- R v Sangalang [2005] NSWCCA 171
- R v Hung Lo [2005] NSWCCA 436
- R v Pellew [2004] NSWCCA 434
- Apps v Regina [2006] NSWCCA 290
- Mulato v R [2006] NSWCCA 282
- Maxwell v R [2007] NSWCCA 304
- Reaburn v R [2007] NSWCCA 60
- House v The King (1936) 55 CLR 499