REGINA v BAE [1999] NSWCCA 290

New South Wales Court of Criminal Appeal CITATION : REGINA v BAE [1999] NSWCCA 290 FILE NUMBER(S) : CCA 60516/98 HEARING DATE(S) : 13 September 1999 JUDGMENT DATE : 17 September 1999

PARTIES : The Crown Shang Hyun Bae JUDGMENT OF : Wood CJ at CL at 1; Newman J at 2; Foster AJ at 36

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70079/97 LOWER COURT JUDICIAL OFFICER : B M James J

COUNSEL : M G Sexton SC (Crown) P Bodor QC (Appl) SOLICITORS : S E O'Connor (Crown) Peter Ash & Associates (Appl) CATCHWORDS : CRIMINAL LAW; sentence; maliciously inflicting grievous bodily harm; parity; worst type of case Lowe v The Queen (1984) 154 CLR 606 at 610 CASES CITED: Ibbs v The Queen (1987) 163 CLR 447 at 449-452 Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 478 DECISION : Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60516/99 WOOD CJ at CL NEWMAN J FOSTER AJ

FRIDAY, 17 SEPTEMBER 1999

REGINA v Shang Hyun BAE

JUDGMENT

1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Newman J. I agree with his reasons and the orders he proposes.

2 NEWMAN J: This is an application for leave to appeal against the severity of a sentence passed by B M James J on 2 September 1998. The applicant had been convicted of the crime of maliciously inflicting grievous bodily harm contrary to the provisions of s 35 of the Crimes Act 1900 which carries a maximum penalty of seven years penal servitude. 3 Before his Honour the applicant had been jointly indicted with one Chong Mun Chai on two counts of murder. The count alleging maliciously inflicting grievous bodily harm was laid in the alternative. 4 In the event the jury acquitted the applicant of murder but found him guilty on the alternative charge. His Honour sentenced the applicant to a total sentence of five years constructed as to a minimum term of three years and three months and an additional term of one year and nine months. 5 The applicant was tried as a consequence of events which happened at Kings Cross on 30 January 1997. He was an associate of his co-accused who owned a number of restaurants and bars in the Sydney area. Both he and his co-accused are Korean nationals. One of those businesses known as the Ehwa Karaoke Bar was situated at Kings Cross. 6 Earlier in 1997, namely on 6 January 1997, an episode of violence had occurred at a Korean restaurant known as the Beewon Restaurant at Kings Cross. That incident had involved other Korean nationals including one Duck Hwan Kim . 7 At the time of this violent episode, another Korean national, one Sang Hoon Lee was working in the Beewon restaurant and had fled from the scene finding sanctuary at the Ehwa Karaoke Bar. It appears that concern existed amongst Korean businessmen in Sydney that Korean gangs were causing trouble at business establishments owned by Korean nationals. 8 On the evening of 30 January 1997 Duck Hwan Kim and another Korean, Dok Su Kim arrived at the Ehwa Karaoke Bar. The applicant and Mr Chai were concerned at their presence causing the applicant, ultimately, to announce "I will teach them a lesson." 9 Contact was then made with Sang Hoon Lee and two other Korean nationals by Chai who requested them to come to the Ehwa because of the presence of Duck Hwan Kim and Dok Su Kim, whom he described as gangsters. 10 When the trio arrived, Duck Hwan Kim and Dok Su Kim were observed to be sitting in a motor car close to the Ehwa. An attack was then carried out on the occupants of the vehicle commencing with Sang Hoon Lee twice punching Dok Su Kim through the open driver's window, Dok Su Kim being in the driver's seat. 11 The other two Koreans who had arrived with Sang Hoon Lee dragged Duck Hwan Kim out of the vehicle. When Dok Su Kim got out of the car he was struggling with Sang Hoon Lee. 12 Chai and the applicant then arrived on the scene coming from the garage of the Ehwa. They were carrying wooden batons which were in fact broken pieces of a hatstand from the Ehwa. Both joined in the fray, the applicant striking Duck Hwan Kim more than once with his baton. The victims were dragged to the garage of the Ehwa being constantly assaulted by the five. 13 For the applicant's part he was continuing to hit Duck Hwan Kim with his baton during the passage to the garage. Once inside the garage the assault continued. The applicant continued to strike Duck Hwan Kim with his weapon. In the meantime others, not including Sang Hoon Lee, continued to attack Dok Su Kim. 14 On his Honour's findings the applicant's physical participation in the attack being carried out on Duck Hwan Kim and Dok Su Kim was complete at this stage. In fact the latter pair were then taken to a room above the garage where others continued the assault upon them. His Honour found that the applicant was aware of what was going on. 15 In due course, having been so requested by Sang Hoon Lee, the applicant made arrangements for the two victims to be taken to hospital. This happened and they were in fact taken to St Vincents hospital where they were left. The person who took them, one Jim Hun Jang gave a false name having delivered them to that institution. 16 In due course Duck Hwan Kim and Dok Su Kim died at the hospital. 17 Pathological evidence indicated that the cause of death in each case was blunt force head injuries resulting from multiple applications of moderate to severe force. 18 In determining the sentence of the applicant, his Honour observed as follows: "In sentencing Mr Bae it is necessary to keep in mind that Mr Bae was acquitted on all charges of murder and manslaughter and was convicted only of inflicting grievous bodily harm and that, in sentencing him, I am bound, as the Crown agreed, to disregard the fact that the victims died. Mr Bae is to be sentenced on the basis that he was a party to an agreement to assault the victims and to inflict some injury on them, that he did not intend that really serious bodily injury be caused but that, in the carrying out of the agreement, injury amounting to really serious bodily injury was in fact caused to both victims." 19 Later, his Honour said: "I have found that Mr Bae armed himself with a baton consisting of a broken piece of hatstand, that he struck Duck Hwan Kim with the baton near the intersection of Earl Street and Earl Place and that he continued to strike Duck Hwan Kim with the baton outside the garage and then inside the garage." 20 His Honour also took into account the fact that the applicant had no criminal convictions either here or in Korea and was a man of good character prior to this occurrence. 21 No issue was taken as to the findings made by his Honour which I have set out above. The argument mounted on the applicant's behalf was tripartite. It was as follows, namely that the trial judge:-