R v Jung [2022] NSWSC 1262

Supreme Court New South Wales

Medium Neutral Citation: R v Jung [2022] NSWSC 1262 Hearing dates: 16 September 2022 Date of orders: 14 October 2022 Decision date: 14 October 2022 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Sentenced to a term of imprisonment of 18 years commencing on 20 March 2021 and expiring on 19 March 2039 with a non-parole period of 13 years and 6 months expiring on 19 September 2034. Catchwords: Sentence – murder – Korean aged 56 at time of sentence – guilty plea at first opportunity – where offender strangled younger woman with whom he was having an affair – whether planned attack or spontaneous loss of control – no prior criminal record – demonstrated remorse – general deterrence – no need for specific deterrence – unlikely to reoffend – good prospects of rehabilitation Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A Category: Sentence Parties: Rex (Crown) Chulsoo Jung (Offender) Representation: Counsel: C Dodds (Crown) M Avenell SC (Offender)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (NSW) (Offender) File Number(s): 2021/79047 Publication restriction: Nil

REMARKS ON SENTENCE 1. HIS HONOUR: Chulsoo Jung pleaded guilty in the Local Court at Central on 1 February 2022 to the murder of Min Sook Moon at Epping on 8 March 2021. Mr Jung is now to be sentenced for that offence. The plea of guilty was offered at the earliest opportunity and Mr Jung is entitled to a discount on sentence of 25 percent. 2. The maximum penalty for murder is life imprisonment. There is also a standard non-parole period which, in the circumstances of this case, is twenty years. The Crown contends that this matter should be regarded as a particularly serious instance of the crime of murder but does not submit that a life sentence should be imposed. 3. Mr Jung is to be sentenced upon the basis of agreed facts. Subject to one matter about which there is disagreement, those facts are as follows. 4. Min Sook Moon operated a family owned Korean grocery store in Epping where she worked daily with her husband, her nephew and her nephew's wife. Ms Moon was 49 years old when she was killed by Mr Jung. He met Ms Moon in the course of his work selling and delivering predominantly Korean food items. Mr Jung delivered to Ms Moon's Epping store approximately once a week. 5. Mr Jung first met Ms Moon in that capacity about nine years before her death. They eventually entered into an intimate relationship which had been ongoing for more than three years by March 2021. 6. On 8 March 2021, Mr Jung drove his work van from Silverwater North to Rawson Street, Epping. He arrived at about 1.07pm and parked adjacent to a Coles Supermarket where he had arranged to meet Ms Moon. Before she arrived, Mr Jung left the driver's seat of the van and entered the rear through a sliding door on the passenger's side. Mr Jung took up a position seated directly behind the front passenger's seat. 7. At 1.25pm, Ms Moon entered the van and took up a position in the front passenger seat. In the course of the next five and a half minutes, Mr Jung strangled Ms Moon with a telephone charger cord. She died sitting in the front seat of Mr Jung's van. 8. Mr Jung then drove to Blaxland Riverside Park where he destroyed Ms Moon's mobile phone. From there he drove to Bunnings Warehouse at Lidcombe and purchased a shovel. Mr Jung drove to the Royal National Park but ultimately drove to his home at Homebush West with Ms Moon's body still in his van. It remained there overnight. In the early hours of the following day, Mr Jung returned to Blaxland Riverside Park where he buried Ms Moon's body in a grave that he dug near a tree and out of view. Mr Jung then went to work. 9. On 10 March 2021, Ms Moon was reported missing by her family. Mr Jung was spoken to by police by telephone on 16 March 2021 following analysis of CCTV footage of the Rawson Street carpark. Mr Jung attended the Eastwood Police Station the following day and gave an exculpatory story. He gave another story to the police on 18 March 2021. At about 12.50am on Friday 19 March 2021, police found Mr Jung in his van in the Silverwater area with a self-inflicted cut to his left wrist. He was taken to Westmead Hospital for treatment. At about 10.30am that day, while still in hospital, Mr Jung told the police that he met Ms Moon on 8 March 2021 at the Epping carpark and then drove her to a KFC outlet in Melrose Park where they had an argument. He told the police that Ms Moon got out of his van and refused his offer to drive her back to Epping. He told police that that was the last time he saw her. 10. However, in the early morning of Saturday 20 March 2021, Mr Jung told his wife that he had killed Ms Moon in his van on 8 March 2021. He apologised to his family and asked to be driven to the police station so that he could confess to that crime. Mr Jung gave an electronically recorded interview at the Eastwood Police Station on that day. 11. Mr Jung told the police that he had known Ms Moon for about nine years during which time they became close and started an affair. He said that Ms Moon kept asking him to divorce his wife and live with her and that she threatened to tell his family about their relationship. Mr Jung said that on 7 March 2021, Ms Moon demanded money from him and said that if he did not pay her she would come to his house and expose their affair. Mr Jung told the police that he was angry and infuriated by her threats and killed her so that his family would not find out. Mr Jung said, "we were having a discussion at a car park" and "I became angry while we were talking and I strangled her." He also told the police that Ms Moon had demanded that he bring $5,000 or she would expose him to his family. Mr Jung said he was "too angry" and: "It was because she was threatening me in a preposterous way while I was in that angry state. It was on impulse. Without me realising it, I think I felt the urge to just kill her." 1. The one issue in dispute relates to whether Mr Jung strangled Ms Moon while he was seated in the van behind her or in the driver's seat next to her. The Crown accepts that it must prove the asserted fact beyond reasonable doubt upon the basis that it is said to be adverse to Mr Jung. The only direct evidence touching the issue arises from CCTV footage of the stationary van in the Coles carpark which provides some vision of the internal area of the van. That material is of limited assistance. 2. However, the Crown contends that an inference that Mr Jung strangled Ms Moon from behind her arises from the following circumstances. On 20 March 2021, Mr Jung told the police that he had moved from the driver's seat to the rear passenger seat without getting out of the vehicle in order to rest while waiting for Ms Moon to arrive because he was tired and stressed. When confronted with the CCTV footage, he accepted that he had in fact walked around to the back of his van. 3. In this regard, the CCTV footage shows that from about 1.08.10pm, Mr Jung got out of the driver's seat, walked to the back of the van, entered the vehicle through the rear passenger side and sat directly behind the front passenger seat. He told the police he reclined the back passenger seat. That is wrong because the rear seat is a bench seat with no capacity to recline. Some 16 minutes later, at 1.24.37pm, Ms Moon comes into view from behind the van and enters it through the front passenger door at 1.24.50pm. 4. The Crown contends that Mr Jung's actions in entering the back of the van and sitting directly behind the front passenger seat using the sliding passenger side rear door, rather than sliding the driver's side back door, is not consistent with Mr Jung's account of being tired and wanting to rest but rather with having decided that he would kill Ms Moon. He placed himself in a position where, seated directly behind her, he would have the advantage of surprise and be better placed to effect a strangulation with the charger cord. The CCTV material suggests that there is no discernible indication of Mr Jung moving from the rear seat into the driver's seat until 1.29.30pm, about one minute before he drives off. 5. Finally, the Crown contends that Mr Jung's own words support the proposition that Ms Moon was strangled from behind. He said to the police: "I didn't even see her face. I couldn't see her face … I couldn't see her. Perhaps I saw her, but whatever it is I just can't remember." 1. I do not consider resolution of this factual dispute to be a matter of particular significance. That is for the following reasons. I find that Ms Moon was strangled by Mr Jung with an intention to kill her. Whether this occurred from beside her or behind her, it would necessarily have required a relatively prolonged exertion of force to her throat with the telephone charger cord. That is not consistent with some different non-lethal intention such as choking her to the point of unconsciousness but not death. 2. To the extent that Mr Jung's position in the vehicle informs his level of planning, it may be thought that if he had positioned himself in the rear of the van in anticipation of Ms Moon's arrival, that would be indicative of a plan to kill her, as opposed to a spontaneous decision to do so only after she arrived. On Mr Jung's account, he "just went crazy". However, Mr Jung told the police on 20 March 2021, "without me realising it, I think I felt the urge to just kill her". By the time Mr Jung was talking to Dr Ellis on 29 April 2022, Mr Jung recalled that he thought "this woman shouldn't be allowed to live". 3. Mr Jung also told the police that his motive for killing Ms Moon was to prevent her from exposing their extra-marital affair. He said, "the reason I killed her was not to let the family know. That's why I killed her." The Crown has submitted that it does not accept Mr Jung's claim that Ms Moon was demanding money from him as the price of her remaining silent. 4. In my opinion, it is highly likely from the fact that Mr Jung positioned himself in the rear of his van behind the front passenger seat and that Ms Moon was strangled very shortly after she arrived, that Mr Jung planned to kill her before she entered the van and that he did not only form that intention after her arrival or as the result of some demand or threat made by Ms Moon concerning the revelation of their affair. However, despite that degree of likelihood, it is not possible to be satisfied of that fact beyond reasonable doubt. 5. The evidence does not reveal much at all about the nature and extent of the relationship between Mr Jung and Ms Moon other than in the most general terms. In particular, the evidence does not speak to the question of whether their relationship had become strained, or encountered difficulties or whether the prospect of it ending had been discussed. However, in the light of Mr Jung's varying descriptions of what took place in the van, I am particularly cynical about his statements either that Ms Moon had threatened to expose their affair at all or that she had demanded money from him in order to remain silent. It is important to recognise those related suggestions, for which Mr Jung is the only source, as a form of victim blaming as if to explain and thereby minimise Mr Jung's culpability. 6. There can be no reasonable doubt that Mr Jung killed Ms Moon in a violent act of uncontrollable passion. Unless Mr Jung were able to suggest that he had an available defence of provocation, which he does not, the reason why he acted as he did in killing Ms Moon is of marginal relevance. The act causing death was, as the Crown contends, committed in an impulsive state of anger. The cause of the anger or loss of self-control is, in the circumstances of this case, neither capable of demonstration beyond reasonable doubt nor of particular significance in any event. Nothing in the evidence before me limits or modifies Mr Jung's culpability for the death. 7. In my view, this crime falls within the middle of the range of objective seriousness for offences of this kind.