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District Court 17 October 2008

R v Sang Jin Park

[2008] NSWDC 234

Assault & violenceHomicideDomestic & family violence
VICTIM WIFE OF THE OFFENDER PREVENTION OF ESCAPE INTERVENTION BY POLICE DEPRESSIVE EPISODE SIGNIFICANT PLANNING AND PREMEDITATION CONSIDERABLE DEGREE OF FORCE

Citation: R v Sang Jin Park [2008] NSWDC 234
Court: District Court of New South Wales
Date: 17 October 2008
Judge(s): Knox SC DCJ

Background

The offender and the victim were a married couple living together in a flat at Parramatta. Their relationship had deteriorated over disagreements about family arrangements and the offender's unfounded suspicion that the victim was having an affair. Five days before the principal offences, a serious domestic argument had occurred, during which the offender smashed furniture and disabled telephones to prevent the victim from calling police.

The parties had agreed to separate, with the offender due to vacate the flat on 3 or 4 January 2007. On 3 January, after spending time surveilling the victim, the offender returned to the flat. He locked both the front door and the bedroom door, trapping the victim inside, and then deliberately ignited a fire with the victim present.

A jury found the offender guilty on 25 March 2008 of attempting to set fire to the victim with intent to murder her, and of maliciously damaging by fire a room and its contents with intent to cause her bodily harm. The offender had also resisted police officers who intervened at the scene.

  • What sentence was appropriate for the principal offence of attempted murder by fire, having regard to the standard non-parole period of 10 years under the Crimes (Sentencing Procedure) Act 1999?
  • How should the objective seriousness of the offending be characterised, and where did it fall relative to the mid-range and high range of criminality?
  • What weight, if any, should be given to the offender's mental state (a depressive episode) as a mitigating factor?
  • Were there special circumstances justifying a departure from the standard non-parole period ratio?
  • Was there any evidence that deportation was likely, and should that be treated as an additional hardship in sentencing?

Decision

Knox SC DCJ assessed the objective seriousness of the principal offence as above the mid-range but below the high range of criminality. The court identified several aggravating features: significant planning and premeditation, the deliberate prevention of the victim's escape by locking doors, the use of considerable force, the fact that the offence occurred in the victim's own home, and a complete disregard for public safety given the fire in an apartment building.

The court accepted that the offender had experienced a depressive episode but found no psychiatric condition or defect of reasoning that substantially diminished his responsibility. His mental state provided only limited mitigation. The offender had no prior convictions, which was a mitigating factor, but the court found he showed little remorse. Taken together, these factors resulted in only a limited overall reduction in penalty.

The court found special circumstances existed, justifying a longer-than-standard ratio between the non-parole period and the total sentence on the principal count. This allowed for an extended period of supervision on parole, particularly given the recommended attendance at violence prevention and domestic violence programs.

No evidence was placed before the court that deportation following release was likely, and this was therefore not treated as a factor warranting further mitigation.

Orders Made

Count 1 (Attempt to set fire with intent to murder):
- 18 years imprisonment, commencing 4 January 2007, expiring 3 January 2025
- Non-parole period of 12 years, expiring 3 January 2019

Count 3 (Maliciously damage by fire with intent to cause bodily harm):
- 2 years imprisonment, commencing 4 January 2007, expiring 3 January 2009, served concurrently
- Non-parole period of 16 months, expiring 3 May 2008

Related offences (all concurrent):
- Resist officer in execution of duty: 6 months imprisonment (4 January 2007 to 3 July 2007)
- Maliciously destroy property: 1 month imprisonment (4 January 2007 to 3 February 2007)
- Intimidate with intent to cause fear: dismissed

Back-up charge (maliciously damage property by fire): dismissed

Apprehended Violence Order (AVO): Made for a period extending 5 years beyond the expiry of the non-parole period, prohibiting the offender from assaulting, harassing, stalking, or contacting the protected person; from entering premises where she resides or works; and from damaging her property.

Key Takeaways

  • Planning and premeditation, deliberate prevention of a victim's escape, and the domestic setting of an offence are all factors that elevate objective seriousness in sentencing for serious violence offences.
  • A depressive episode, without an accompanying psychiatric condition or defect of reasoning, provides only limited mitigation and does not substantially reduce an offender's culpability.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established where an extended supervisory period on parole is warranted, particularly where rehabilitation programs are recommended.
  • The District Court declined to treat potential deportation as an additional sentencing hardship in the absence of any evidence that deportation was actually likely to occur.
  • Where an offender shows little remorse and the aggravating features of an offence are substantial, the combined effect of mitigating factors such as the absence of prior convictions may result in only a modest overall reduction in penalty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 30, 196(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Benitez v R [2006] NSWCCA 21
- R v Fahda [1999] NSWCCA 267
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Engert (1995) 84 A Crim R 67
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Champion (1992) 64 A Crim R 244
- R v Wright (1997) 93 A Crim R 48
- R v Macadam-Kellie [2001] NSWCCA 170
- The Queen v Elphick [2000] NSWSC 977
- The Queen v Cheung (CCA, unreported, 11 December 1995)
- Rae [2001] NSWCCA 545
- Yun v R [2008] NSWCCA 114
- R v Way [2004] 60 NSWLR 168
- R v Pillay [2006] NSWCCA 402
- Maxwell v R [2007] NSWCCA 304
- R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23
- R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268
- Philipos [2008] NSWCCA 66
- R v Merrin [2007] NSWCCA 255