Regina v Park [2003] NSWCCA 142

New South Wales Court of Criminal Appeal

CITATION : Regina v Park [2003] NSWCCA 142 HEARING DATE(S) : 20/12/02 JUDGMENT DATE : 10 December 2003

JUDGMENT OF : Mason P at 1; James J at 18; Hidden J at 20 DECISION : (By majority) appeal dismissed.

CATCHWORDS : CRIMINAL LAW: Crown appeal against sentence - murder (3) - victims applicant's wife and two children - overall sentence of twenty six years, non parole period nineteen and a half years - challenges to judge's findings of fact, structure of sentences - whether sentences manifestly inadequate. LEGISLATION CITED : Sentencing Act 1989 Pearce v The Queen (1998) 194 CLR 610 at 623-4 Reg v Alexander (1999) 107 ACrimR 449 Reg v De Gruchy (2000) 110 ACrimR 271 Reg v Khouzame [2000] NSWCCA 505 at pars 33-47 CASES CITED : R v O'Donoghue (1988) 34 A Crim R 397 Reg v Leonard (CCA, unreported, 7.12.98) R v Park [2003] NSWCCA 203 Reg v Velevski (Dunford J unreported 26.9.97) The Queen v Olbrich (1999) 199 CLR 270 PARTIES : Regina Sung Eun Park FILE NUMBER(S) : CCA 60540/00 COUNSEL : D Frearson - Appellant Crown P Byrne SC - Respondent SOLICITORS : SE O'Connor - Appellant Crown DJ Humphreys - Respondent

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70085/98 FILE NUMBER(S) : LOWER COURT Sperling J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60540/00

MASON P JAMES J HIDDEN J Wednesday, 10 December, 2003 Regina v Sung Eun PARK JUDGMENT 1 MASON P: I have had the benefit of reading in draft the reasons of Hidden J. 2 The respondent did not give evidence at his trial or sentencing proceedings. The Crown case was circumstantial, but strong (see generally R v Park [2003] NSWCCA 203). The jury's verdict establishes that the respondent came to the flat at Eastwood where his wife and children were living on the night of 17-18 October 1996 and killed them there. He killed them intentionally by suffocating them. A plastic bag was tied over each victim's head and their hands and feet were bound with rope and stockings. The mother was killed first, and then the two children who were aged three and half and two and half. 3 Evidence tendered at trial indicated a motive and the context in which the murders took place. The respondent had left his wife and formed an attachment with another woman, Ms Hwang. They began living together and had discussed marriage. On 12 October 1996 there was an angry confrontation between the deceased and Ms Hwang at the flat occupied by the respondent and Ms Hwang. On the day of the killings, the respondent had received a letter from the Child Support Agency following an approach by the deceased for assistance. The respondent was angered that the letter informed him that he could be required to pay child support if his circumstances changed. The respondent spoke to the deceased about the letter at the Eastwood flat later that day. 4 When the respondent phoned Ms Hwang in the small hours of the following morning he sounded both angry and "weepy". He said, "Listen, everything has been resolved now. It will be alright if we go to Korea now". The next day he notified an estate agent that the Eastwood flat would be vacated and he withdrew the money from the deceased's bank account and from accounts kept on behalf of the children. 5 Sperling J was satisfied that the respondent intended to kill each of the three victims. He went on to observe that there was little in the evidence of the circumstances of the killings on which to base any finding either in aggravation or mitigation of them. He was not satisfied to the criminal standard that the killings were premeditated, saying that he could make no finding other than that the killings were perpetrated by the respondent "in a highly charged emotional state". Equally, he was unable to attribute the killings to a desire by the respondent to rid himself of his family so that he could pursue his relationship with Ms Hwang. 6 This appeal is not by way of rehearing. Error must be demonstrated. In R v O'Donoghue (1988) 34 A Crim R 397 Hunt J, with whom Carruthers and Wood JJ agreed said (at 401): Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice… 7 This principle (often cited) extends to sentencing appeals (R v Khousame [2000] NSWCA 505). 8 On this approach it is not open to this Court to reject inferences drawn from the primary facts even if we disagreed. Accordingly, I must give the respondent the benefit of a reasonable doubt as to his state of mind at the moment when he killed his wife. 9 But the subsequent intentional killing of the defenceless young children was in a different category. Sperling J concluded that it was "reasonably possible that the children were killed out of some misguided notion, arising from the emotional aftermath of [Mrs Park's] death". The Crown submits, and I agree, that this conclusion was totally speculative and unsupported by any evidence. Hypotheses of this nature must be both "reasonable and available on the evidence" (R v Park [2003] NSWCCA 203 at [56] per Shaw J, Ipp JA and Buddin J agreeing). 10 There was (I infer) a degree of premeditation in the killing of the children, having regard to its timing (after Mrs Park) and the steps involved to bring about suffocation. 11 There was no evidence suggesting that the respondent was motivated other than by self interest by the time he killed his children. To so conclude is not to deny that he could have been in a highly agitated state of mind in which his sense of moral responsibility and self-control were severely diminished. But the killings were intended and carried out in a measured way, having regard to the means adopted to kill each infant victim. 12 The method of disposal of the three bodies, the plundering of the bank accounts and the selling of the family furniture represent conduct that (to say the least) does not assist the respondent in upholding the favourable open-ended finding by the learned primary judge. 13 In my opinion, the objective gravity of these murders, particularly the separate murders of the children, comes close to a worst case category. The Crown advocated a life sentence in the court below. Had such a sentence been imposed it would, in my view, have survived appellate challenge, having regard to: