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Supreme Court 14 October 2022

R v Jung

[2022] NSWSC 1262

Homicide
SENTENCE MURDER KOREAN AGED 56 AT TIME OF SENTENCE GUILTY PLEA AT FIRST OPPORTUNITY NO PRIOR CRIMINAL RECORD DEMONSTRATED REMORSE

Citation: R v Jung [2022] NSWSC 1262
Court: Supreme Court of New South Wales
Date: 14 October 2022
Judge: Harrison J

Background

The offender, a Korean-born man aged 56 at sentencing, pleaded guilty to the murder of a 49-year-old woman with whom he had conducted an extramarital affair for more than three years. The victim operated a family-owned Korean grocery store in Epping, where the offender had made regular deliveries for approximately nine years before her death.

On 8 March 2021, the offender arranged to meet the victim in a Coles carpark at Epping. He entered the rear of his work van through the passenger-side sliding door and positioned himself directly behind the front passenger seat before she arrived. When she entered the van, he strangled her with a telephone charger cord over the course of approximately five and a half minutes. She died in the front passenger seat.

After the killing, the offender destroyed her mobile phone, purchased a shovel, and ultimately buried her body at Blaxland Riverside Park in the early hours of the following morning. He initially gave police false accounts before, on 20 March 2021, telling his wife what had happened and asking to be driven to the police station to confess. He entered his guilty plea at the first available opportunity in the Local Court on 1 February 2022.

  • Whether the murder involved planning or was a spontaneous loss of control, and the significance of that distinction to the sentence
  • Whether the agreed facts, together with the disputed question of the offender's position in the vehicle, supported an inference of premeditation
  • The appropriate weight to give mitigating factors including the early guilty plea, demonstrated remorse, absence of prior criminal history, and prospects of rehabilitation
  • Whether specific deterrence was a relevant sentencing consideration on the facts
  • The appropriate head sentence and non-parole period, having regard to the standard non-parole period of 20 years and the statutory purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Harrison J found that the offender murdered the victim with an intention to kill her, noting that the prolonged force required to strangle a person with a cord was inconsistent with any lesser intention such as rendering her unconscious. The one disputed factual question, namely whether the strangulation occurred from directly behind the victim or from beside her, was not considered to be of particular significance to the ultimate sentence.

On the question of planning, the court found it highly likely that the offender had decided to kill the victim before she arrived at the carpark. His positioning in the rear of the van, directly behind where she would sit, was consistent with planning rather than spontaneous rage. The court also drew on the offender's own evolving accounts to police, and a later statement to a forensic psychiatrist that he recalled thinking "this woman shouldn't be allowed to live." The stated motive was to prevent the victim from exposing their affair to his family.

Notwithstanding those findings, the court weighed several mitigating factors. The offender had no prior criminal record, entered his plea at the earliest opportunity, attracting a 25 percent discount, and demonstrated genuine remorse. Expert evidence supported good prospects of rehabilitation and a low risk of reoffending. The court accepted that specific deterrence was not necessary, observing that the offender was highly unlikely to reoffend for a number of reasons. General deterrence and denunciation remained relevant, with the court noting that a "convenient surrender to uncontrollable rage" still warranted appropriate condemnation even where a crime of passion argument was raised.

The court also received and acknowledged a victim impact statement from the victim's daughter, recognising the significant harm caused to the family.

Orders Made

  • The offender was sentenced to 18 years imprisonment, commencing 20 March 2021 and expiring 19 March 2039
  • Non-parole period of 13 years and 6 months, expiring 19 September 2034
  • The court noted, in compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), that the provisions of that Act have potential application to the offender

Key Takeaways

  • An offender's physical positioning before the victim's arrival, combined with his own statements about his state of mind, can support an inference of planning even where the offender characterises the killing as impulsive or spontaneous.
  • The Supreme Court treated the precise mechanics of the killing (the position in the vehicle) as less significant than the established intention to kill and the surrounding conduct before and after the offence.
  • A 25 percent sentence discount applied where a guilty plea to murder was entered at the earliest available opportunity in the Local Court.
  • Where expert and other evidence supported genuine rehabilitation and very low risk of reoffending, the sentencing court found specific deterrence was not a relevant consideration, while maintaining that general deterrence and denunciation remained important purposes in a murder sentencing.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court is required to note on the record where that Act has potential future application to an offender, as occurred here.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases cited: No cases were cited in the portions of the judgment provided.