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: • the three separate acts of murder • the age of two of the victims • the location of the murders • the method of killing that meant that each victim endured a frightening death • the absence of any provocation, disability or other handicap to explain the prisoner's conduct • the partial premeditation involved in the killing of the children • lack of any demonstrated remorse on the prisoner's part. 14 However, the Crown did not press for a life sentence in this Court. This is understandable having regard to the principles governing Crown appeals, the prisoner's comparatively young age and the circumstances in which he will have to endure a lengthy term of imprisonment. 15 Sperling J would have imposed a sentence of 20 years with a non-parole period of 15 years in relation to the murder of each of the children, considered separately; and, in relation to the murder of Mrs Park, a sentence of 17 years with a non-parole period of 13 years. Applying the principle of totality, he imposed a term of 26 years, with a non-parole period of 19 and half years for the murder of Mrs Park and fixed terms of imprisonment of 15 years for the murder of Andrew Eun Park and Amy Park. 16 I would uphold the appeal. In light of Pearce v The Queen (1998) 194 CLR 610 adjustments to reflect the totality of criminality should be addressed through partial cumulation of sentences, if practicable. 17 Applying this principle, I would impose concurrent fixed terms of 22 years for the murder of each of Andrew Eun Park and Amy Park to date from 3 March 1998. I would impose a sentence of 17 years with a non-parole period of 13 years for the murder of Mrs Park, making that sentence partially cumulative upon the fixed term sentences. That sentence should commence 9 years after the commencement of the other sentences, ie on 3 March 2007. 18 JAMES J: I have had the advantage of reading in draft the judgments of Hidden J and Mason P. I am in general agreement with the judgment of Hidden J and for the reasons given by his Honour consider that the appeal should be dismissed. 19 In his remarks on sentence the sentencing judge expressly declined to make a number of findings about the facts of the offences, which, if his Honour had made them, would have aggravated the criminality involved in the offences. It might well have been open to the sentencing judge to have made some at least of these findings, in accordance with the requisite standard of proof. However, given the requirement that facts adverse to the interests of a person being sentenced cannot be taken into account unless they have been proved beyond reasonable doubt (The Queen v Olbrich (1999) 199 CLR 270 at 281 per Gleeson CJ, Gaudron Hayne and Callinan JJ) and the limited power of the Court of Criminal Appeal to review findings of fact by judges of first instance which is referred to in such cases as R v O'Donoghue (1988) 34 A Crim R 397 and R v Khousame (2000) NSW CCA 505, I do not consider that in the present case the Court of Criminal Appeal could hold that the sentencing judge erred in deciding that he was not satisfied beyond reasonable doubt that he should make these findings. Given the factual basis on which the sentencing judge sentenced the respondent, I do not consider that the sentences imposed could be held to be manifestly inadequate, although I would regard them as lenient. 20 HIDDEN J: This is an appeal by the Director of Public Prosecutions against sentences imposed by Sperling J upon the respondent, Sung Eun Park, after he was found guilty at trial of the murder of his wife and two children. For the murder of his wife, Qian Qin Park, he was sentenced to imprisonment for twenty-six years, to date from 3 March 1998, with a non-parole period of nineteen and a half years. For the murders of his son, Andrew, and his daughter, Amy, he was sentenced to fixed terms of imprisonment for fifteen years, also to date from 3 March 1998. Accordingly, the effective overall sentence for the three murders was twenty-six years with a non-parole period of nineteen and a half years. 21 After this appeal was argued the respondent pursued an appeal against conviction, which was heard by a differently constituted bench. That appeal was dismissed: R v Park [2003] NSWCCA 203. Facts 22 The facts which Sperling J found for the purpose of sentence were these. The respondent came to Australia from Korea as a child, and his wife migrated to this country from China as an adult. They met in Brisbane in 1992 and later moved to Sydney. In 1994 they moved to a flat at Eastwood, where the killings took place. The two children who were killed were their only offspring. At the time Andrew was about three and a half years old and Amy about two and a half. 23 Towards the end of 1995 the respondent left his wife, having formed an attachment to a nineteen year old Korean woman, So Yung Hwang (known as Demi Hwang). They began to live together, and from July 1996 they were living in a flat at Ashfield. Mrs Park remained at the Eastwood flat with the children, and by October 1996 she was receiving Social Security payments. 24 The respondent had a gambling habit. Throughout the year prior to the killings he was constantly short of money. He was a regular customer at two pawn shops, and he sold or pawned furniture and other property which he took from the Eastwood flat, even after he had ceased to live there. He also took money from Ms Hwang's bank account without her authorisation, and borrowed money from neighbours at Ashfield. 25 It was not until September 1996 that Mrs Park discovered that the respondent was living with Ms Hwang. On 12 October 1996 she went to the Ashfield flat and confronted Ms Hwang. They fought and the police were called. This incident angered the respondent, who was particularly concerned about the involvement of police because Ms Hwang's visa had expired and she was in the country illegally. 26 Mrs Park had approached the Child Support Agency for assistance, and on 17 October 1996 the respondent received a letter from that agency, which he read in Ms Hwang's presence. The letter informed him that he was responsible for the support of his children but that, because of his low income, he was not required to make any payments at that time. However, it went on to inform him that he could be required to pay child support if his circumstances changed. This letter also angered him. 27 Mrs Park and the children were last seen alive that afternoon. That night, it seems, the respondent went to the flat at Eastwood and it was there that he killed them. The evidence of this was circumstantial. According to Ms Hwang, who gave evidence for the Crown and whom his Honour found to be a credible witness, the respondent phoned her at the Ashfield flat to tell her that he was at Eastwood, talking to his wife about the letter from the Child Support Agency. In the small hours of the following morning he phoned Ms Hwang again. His voice was quavering and he sounded both angry and "weepy". He said, "Listen, everything has been resolved now. It will be alright if we go to Korea now." He made no direct response when Ms Hwang asked what had happened. 28 On 18 October 1996 the respondent notified the estate agent handling the lease of the Eastwood flat that the flat would be vacated. He withdrew the money from his wife's bank account and from accounts kept on behalf of the children, and he sold the furniture in the Eastwood flat. According to Ms Hwang, he lost the proceeds of the sale of the furniture through gambling. 29 On the night of 19 October 1996 the respondent drove with Ms Hwang to a seaside suburb, possibly Bondi. There, he proposed that they commit suicide together and suggested ways in which that might be done. Ms Hwang was distressed and said that she did not want to die. The respondent then proposed that they travel to Korea together immediately. Ms Hwang gave evidence that on that same occasion he looked up at the stars and said, "My children are there. They will be there peacefully." 30 A few days later the respondent drove to the Eastwood flat, where he placed the bodies of his wife and children in two large suitcases. He deposited the bodies in bushland in the Watagan State Forest near Cessnock. He told people that his wife and children had moved to Brisbane. 31 It was not until 27 August 1997 that their remains were discovered by fire fighters engaged in back burning in the area. A plastic bag had been tied over the heads of each of the deceased. Their hands and feet had been bound with rope and stockings were found near the necks of the children. A forensic pathologist concluded that all three had died of suffocation. 32 The respondent and Ms Hwang travelled to Korea on 29 October 1996, after he became aware that police had been notified that his family were missing and were making inquiries. He was arrested in that country on 3 March 1998, and he did not oppose his extradition to face trial here. 33 His Honour 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 they 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. 34 In the appeal the Crown prosecutor challenged his Honour's finding that the respondent was in a state of high emotion when he killed the children, as well as several other findings to which I shall turn in a moment. Subjective case 35 The respondent was twenty-six years old at the time of the offences and is now thirty-two. He has a criminal record, but his Honour made no reference to it in his remarks and it appears to be of no present significance. He had been on protection for the whole of his period in custody prior to sentence and wished to remain so. Given that two of his crimes were perpetrated against young children, his Honour considered that to be a reasonable choice. There was evidence of the disadvantages within the prison system, familiar to those experienced in the criminal courts, which flow from that status. The appeal 36 The Crown prosecutor in this Court, who did not appear before Sperling J, submitted that the overall sentence of twenty-six years imprisonment is manifestly inadequate. While he argued that a life sentence would have been appropriate, he recognised the element of double jeopardy in Crown appeals and did not urge us to take that course if the appeal were allowed. He also argued that, in structuring the sentences, his Honour failed to determine the sentence appropriate for each of the three offences and then to consider questions of concurrence, accumulation and totality, in accordance with the principles enunciated in Pearce v The Queen (1998) 194 CLR 610 at 623-4. The proper application of those principles, it was said, would have led to a partial accumulation of the sentences so as to produce a significantly longer overall sentence. 37 Finally, as I have said, the Crown prosecutor challenged a number of his Honour's findings of fact. It is convenient to deal with that aspect of the appeal first. I do so bearing in mind the familiar principles governing appellate review of the findings of fact of a primary judge. Those principles were restated, with reference to authority, by Greg James J in Reg v Khouzame [2000] NSWCCA 505 at pars 33-47. 38 The Crown's position in the sentence proceedings had been that Mrs Park was killed first and that the children were then killed because they had witnessed their mother's death. It was argued that, whatever might have been the respondent's emotional state when he killed his wife, he killed the children "in a calculated and cool headed state of mind." His Honour accepted that Mrs Park was probably killed first, but he thought it "reasonably possible that the children were then killed out of some misguided notion, arising in the emotional aftermath of her death, that it would be inhumane for the children to be left alive without their mother." His Honour went on to say that he was not satisfied beyond reasonable doubt that the respondent killed the children otherwise than "in a state of emotional turmoil." 39 The Crown prosecutor before us submitted that his Honour's observation that the killing of the children could have been motivated by a desire to spare them life without their mother was "totally speculative and unsupported by any evidence." However, I do not understand his Honour to have made any positive finding to that effect. Read in context, it is clear that his Honour was saying no more than that the evidence admitted of possible scenarios other than that for which the Crown contended. What mattered for the purpose of sentence was that his Honour was not satisfied that the children were killed in cold blood. 40 Allied to this is his Honour's finding that he was not satisfied that the respondent killed his wife and children in order to avoid his potential liability for child support. The Crown prosecutor before us argued that that was the true motive, describing it as "an almost overwhelming inference" from the evidence. No doubt, as his Honour did find, the respondent's anger engendered by the communication from the Child Support Agency played a role in the killings. Indeed, that he killed his family to avoid any liability to support the children is a reasonable hypothesis. However, it cannot be said that the evidence compelled such a conclusion beyond reasonable doubt, any more than that could be said of a conclusion that the children were killed in cold blood. 41 As to the manner in which the killings were carried out, his Honour noted the forensic pathologist's opinion that the deceased had been suffocated and continued: … I could not be satisfied beyond reasonable doubt that each of the deceased was not rendered unconscious in some other way before bags were placed over the head. Accordingly, I make no finding that the offences are aggravated by the deceased having died uncomfortable deaths or having been in fear before death. 42 The Crown prosecutor in this Court challenged that view of the facts, relying on the evidence not only that there were bags over the head of the three deceased but also that they were bound with rope. Again, an inference that the deceased were killed in more distressing circumstances is available but such a finding beyond a reasonable doubt was not inevitable. Generally, as his Honour observed, the paucity of evidence of what occurred at the Eastwood flat on that fateful night militated against positive findings adverse to the respondent. 43 There were other matters established by the evidence to which, the Crown prosecutor submitted, his Honour failed to attribute due significance as aggravating features. These were the disposal of the bodies of the deceased, the false story that they had moved to Brisbane, and the sale of the furniture from the flat at Eastwood and plundering of their bank accounts. 44 As to the disposal of the bodies, his Honour contrasted the present case with Reg v Leonard (CCA, unreported, 7.12.98), in which the offender had dismembered the body of one of his victims and kept the body parts in a refrigerator for some months before dumping them in a creek. The sentencing judge in that case had seen this behaviour as evidence of the offender's contempt for the victim and his lack of remorse for his crime. In the present case, his Honour noted that the bodies were not mutilated or interfered with and were disposed of shortly after the killings. His Honour saw their disposal, together with the false story about the deceased's whereabouts, as being motivated by the respondent's desire to avoid detection. While observing that the respondent could be "criticised for this course of conduct", his Honour did not see it as amounting to "a significant consideration in aggravation of the offences." That is a conclusion which was fairly open. 45 His Honour saw the sale of the furniture and the withdrawal of the money from the bank accounts as a continuation of the respondent's established pattern of behaviour as an habitual gambler. I earlier referred to the evidence that the proceeds of the sale of the furniture were lost by gambling. About this aspect of the evidence his Honour said: This history demonstrates a callous attitude on the part of the prisoner towards his family. It does not seem to me, however, to add anything of significance by way of aggravation to the objective seriousness of the crimes. They speak for themselves. Again, this conclusion was open. 46 The Crown prosecutor criticised his Honour's finding that the respondent's contemplation of suicide was "some evidence of remorse". However, his Honour went on to observe that the respondent was "easily distracted from thoughts of suicide" and "then applied himself assiduously to making arrangements to leave the country with Ms Hwang". His Honour noted that the respondent had not given evidence at the trial or in the sentence proceedings, and found that "there was some remorse for what the prisoner had done but not much". No exception could fairly be taken to this observation which, in any event, does not appear to have loomed large in his Honour's determination of the appropriate sentence. The same must be said of his Honour's finding that the respondent was entitled to "a modest discount in the sentence" because of certain formal admissions he made in the trial which had the benefit of shortening the proceedings. 47 I do not find that any of the challenges to his Honour's factual findings have been made out. 48 I turn, then, to the structure of the sentences and the complaint based upon Pearce. His Honour said that, if he were sentencing the respondent separately for the three offences, he would have imposed a sentence of imprisonment for twenty years (with a non-parole period of fifteen years) for the murder of each of the children, and a sentence of seventeen years (with a non-parole period of thirteen years) for the murder of his wife. However, noting that the principle of totality had to be applied, his Honour passed the sentences which he did: twenty-six years (with a non-parole period of nineteen and a half years) for the murder of the wife and fixed terms of fifteen years for the murders of each of the children, all sentences to be served concurrently. 49 What his Honour appears to have done is to have passed in respect of the murder of Mrs Park a sentence which encompassed the criminality of all three murders. Then, in respect of the murders of the two children, he has passed concurrent terms of imprisonment shorter than those offences, viewed in isolation, would have merited. This does offend the principles expressed in Pearce, and Mr Byrne SC, who appeared with Ms Bashir for the respondent, acknowledged as much. However, the sensible stance of the Crown prosecutor was that this Court should determine whether a sentence of twenty-six years is manifestly inadequate to reflect the whole of the respondent's criminality, and he did not ask us to restructure the sentences unless we came to that conclusion. 50 On that question, our attention was drawn to three cases of multiple murder in which determinate sentences had been passed. Two of them were referred to by his Honour in his remarks: Reg v Velevski (Dunford J, unreported, 26.9.1997) and Reg v Alexander (1999) 107 A Crim R 449. Mr Byrne also referred us to Reg v De Gruchy (2000) 110 A Crim R 271. 51 In Velevski, the offender had killed his wife and three children by slitting their throats. The motive was unclear, although there was evidence to suggest that the offender's wife had threatened to leave him and to take the children with her. Dunford J found that the killings required "a considerable degree of planning", and they were executed in such a way as to suggest that the wife had killed the children and then taken her own life. At the time of the proceedings the Sentencing Act 1989 was still in force. For the four offences his Honour passed concurrent sentences of imprisonment for twenty-five years, comprising a minimum term of nineteen years and an additional term of six years. 52 Alexander was a redetermination of life sentences under s 13A of the Sentencing Act. The offender strangled his landlady after an argument over arrears of rent. While he was attempting to conceal her body in the garage of the premises, her three year old daughter came in. He struck the child with a piece of wood and stabbed her. Kirby J accepted the findings of the trial judge that the killing of the landlady was premeditated, and that the offender killed the child because "she stood in his way" and was "a person who could identify him". For each offence his Honour imposed concurrent sentences of twenty-nine years, comprising a minimum term of twenty-one years and an additional term of eight years. 53 In De Gruchy, the appellant had killed his mother, brother and sister in a brutal manner. No motive for the killings could be established. He was sentenced, again under the Sentencing Act, to concurrent terms of imprisonment for twenty-eight years, comprising a minimum term of twenty-one years and an additional term of seven years. His appeal against conviction was dismissed and an application for leave to appeal against sentence was not pressed. Wood CJ at CL, who delivered the leading judgment, described the sentences as "manifestly appropriate …". 54 Of course, each case turns on its own facts and sentences in other cases can be no more than a very rough guide. Alexander was affected by the special considerations governing the redetermination of a life sentence under s 13A of the Sentencing Act. Neither that case nor De Gruchy involved the gross breach of trust and responsibility perpetrated by a father killing his children, a matter to which his Honour expressly referred in the present case. However, that was an important feature of Velevski, a case which appears to be more serious than this. 55 What does emerge from those decisions is that the effective sentence of twenty-six years passed upon the respondent cannot be seen as manifestly inadequate. This is a dreadful case and it would have been open to his Honour to have imposed a heavier sentence, but the sentence he did pass is not such as should attract the intervention of this Court on a Crown appeal. 56 I would dismiss the appeal. ********** Last Modified: 12/11/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.