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5
Court of Criminal Appeal 5 June 2019

Park v R

[2019] NSWCCA 105

Homicide
CRIME SENTENCE APPEAL PAROLE PERIOD OF 27 YEARS WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL ALLOWED RESENTENCE

Citation: Park v R [2019] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 5 June 2019
Judge(s): Payne JA, Harrison J, R A Hulme J

Background

The appellant pleaded guilty on 1 February 2017 to the murder of his housemate, whom he had barely known, committed between 18 and 22 August 2015. The killing was carried out for financial gain: after the murder, the appellant used the victim's bank accounts to withdraw over $60,000, sold the victim's car, transferred funds to Korean bank accounts, and purchased luxury items. He was sentenced at first instance by Latham J to 36 years' imprisonment with a non-parole period of 27 years.

The appellant challenged the sentence on three grounds: that the sentencing judge erred in finding significant premeditation, erred in placing the offence significantly above the mid-range of objective seriousness, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that premeditation existed to a significant degree
  • Whether the sentencing judge erred in placing the murder significantly above the mid-range of objective seriousness, given the combination of premeditation, brutality, and financial motive
  • Whether the resulting sentence of 36 years (non-parole period of 27 years) was manifestly excessive

Decision

The Court of Criminal Appeal allowed the appeal on all three grounds. Harrison J, with whom Payne JA and R A Hulme J agreed, found that while some degree of premeditation was present, the sentencing judge had overstated its extent. The appellant's conduct in the days before the murder showed planning directed at obtaining money and leaving Australia, but the facts did not support a finding of premeditation to kill to a significant degree.

On objective seriousness, the court accepted that the murder was serious, involving a brutal assault on a young man the appellant barely knew, motivated by financial gain. However, the court found it was an error to place the offence significantly above mid-range. The combination of intention to kill and premeditation, while grave, did not of itself require that characterisation given the particular circumstances of the case.

In resentencing, the court took into account the utilitarian value of the guilty plea (a 10 per cent discount), the need for general deterrence given the planned and financially motivated nature of the offence, and some degree of special deterrence in light of the appellant's uncertain post-release prospects.

R A Hulme J added a note clarifying that a statement from Nguyen v R (2007), often relied upon by defence counsel, had been misread. Smart AJ's observation that intention to kill and premeditation are "usual elements in a murder of mid-range objective seriousness" does not mean that their presence places a murder in the mid-range. Those features can equally appear in worst-case offences.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Latham J on 30 June 2017 quashed
  • In lieu of the original sentence: non-parole period of 21 years and 6 months, commencing 26 August 2015, expiring 25 February 2037; balance of term of 7 years and 3 months, expiring 25 May 2044
  • First eligible parole date: 26 February 2037

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of significant premeditation must be grounded firmly in the facts; the sentencing court overstated the degree of premeditation where the evidence showed planning for financial gain and departure rather than a clearly premeditated plan to kill.
  • Placing a murder significantly above the mid-range of objective seriousness requires careful analysis of the specific circumstances; the mere presence of planning, brutality, and financial motive does not automatically warrant that characterisation.
  • A passage from Nguyen v R (2007) 180 A Crim R 267 has been repeatedly misconstrued in sentencing proceedings. R A Hulme J clarified that Smart AJ was saying only that intention to kill and premeditation are not unusual in mid-range murders, not that their presence defines or confines an offence to that range.
  • In resentencing, the court applied a 10 per cent discount for the utilitarian value of the guilty plea and gave weight to general deterrence, given that the murder was planned and carried out for financial advantage.
  • Sufficient error was established in both the premeditation finding and the objective seriousness assessment to warrant intervention under the Criminal Appeal Act 1912 (NSW), resulting in a materially reduced sentence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- 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 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 Nguyen [2006] NSWSC 850
- R v Wiggins [2018] NSWSC 1142
- Salafia v R [2015] NSWCCA 141