Supreme Court New South Wales Medium Neutral Citation: Application by Gil Bum Yun pursuant to s78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 824 Hearing dates: On the papers Decision date: 19 June 2014 Jurisdiction: Common Law - Criminal Before: Hoeben CJ at CL Decision: Application refused. Catchwords: Application - application for inquiry into sentence pursuant to s78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to mitigating circumstance - whether sentence infected by Muldrock error - offence of murder - conviction after trial - successful appeal by applicant to Court of Criminal Appeal, as a result of which sentence reduced - no Muldrock error in Court of Criminal Appeal re-sentencing process - application refused. Legislation Cited: Crimes (Appeal and Review) Act 2001 - 78(1) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Apps v R [2006] NSWCCA 290 Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Gil Bum Yun [2006] NSWSC 258 R v Way (2004) 60 NSWLR 168 Yun v R [2008] NSWCCA 114 Category: Principal judgment Parties: Gil Bum Yun - Applicant Regina - Respondent Representation: Counsel: -- Solicitors: Legal Aid NSW - Applicant Crown Solicitor's Office - Respondent File Number(s): 2013/215596 Judgment 1HIS HONOUR: Decision The applicant, Gil Bum Yun, has applied for an inquiry into his sentence pursuant to s78(1) Crimes (Appeal and Review) Act 2001 (the Act). The application seeks the referral of the sentence to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2The applicant submits that there is a doubt or question as to a mitigating circumstance in the case, namely that the applicant's sentence was infected by Muldrock error in that the standard non-parole period was given undue emphasis in the sentencing process, contrary to the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3The applicant was convicted by a jury of the offence of murder and on 11 April 2006 was sentenced by Newman AJ in the Supreme Court to imprisonment with a non-parole period of 20 years, with an additional term of 6 years and 8 months (R v Gil Bum Yun [2006] NSWSC 258). The offence of murder carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years. 4The applicant sought leave to appeal his sentence in the Court of Criminal Appeal. On 2 June 2008 the Court of Criminal Appeal granted leave to appeal the sentence, allowed the appeal, quashed the sentence and re-sentenced the applicant to imprisonment with a non-parole period of 18 years and an additional term of 6 years and 2 months: Yun v R [2008] NSWCCA 114. Factual background 5The applicant and the deceased were both Korean. They were friends and lived together, along with the applicant's mother and the deceased's wife. On the evening of the offence, the applicant was celebrating his birthday along with the deceased and others. They consumed alcohol over six or seven hours, both at home and then at several venues. 6At the end of the evening members of the group prepared to go home. The applicant and the deceased began to argue as they were walking in Campsie. The argument developed into a physical fight. The applicant was both younger and stronger and he got the better of the deceased. Witnesses deposed to seeing the applicant hitting and kicking the deceased. 7The deceased went and got a stick and struck the applicant. One of the other people present was struck and knocked down. The violence then ceased. Both the deceased and the applicant then headed home. The applicant obtained a knife from inside the unit and told the deceased's wife "I will kill Sun Chul". He went outside and stabbed the deceased between one and three times in the chest and once in the neck. 8The deceased collapsed. The applicant was immediately remorseful and organised for a neighbour to call an ambulance. He spoke to the deceased saying "Older bro, please wake up". The deceased died shortly afterwards in hospital. 9The applicant had not disputed at trial that he had argued with the deceased or that he had obtained a knife. He accepted that he was holding the knife when the deceased received his fatal injury. He argued that he had acted in self defence, or that the stabbing had occurred accidentally. 10There was no doubt that Newman AJ gave the standard non-parole period determinative effect when imposing sentence. If this application were based solely upon the remarks of the primary judge in his sentence judgment, I would have no hesitation in finding that Muldrock error had occurred when the applicant was sentenced. 11However, the applicant's sentence was taken to the NSW Court of Criminal Appeal which found error and as a result, re-exercised the primary judge's sentencing discretion. Accordingly, for the applicant to succeed in this application, he has to establish that Muldrock error occurred when he was re-sentenced by the Court of Criminal Appeal. 12The grounds of appeal relied upon in the Court of Criminal Appeal were: "Ground 1: The sentencing judge erred in holding that the case fell within the middle range of objective seriousness ... solely by reference to his finding that the applicant had formed an intention to kill. Ground 2: The sentencing judge erred in failing to take into account the lack of planning, the lack of premeditation and the fact that the offence was not part of any organised criminal activity in coming to the conclusion that the offence fell within the middle range of objective seriousness for the purposes of s54A. Ground 3: The sentencing judge erred in his approach to the application of the standard minimum non-parole period and in his application of sections 21A, 44 and 54A of the Crimes (Sentencing Procedure) Act 1999. Ground 4: A different less severe sentence is warranted and ought to have been imposed." 13The Court of Criminal Appeal (Beazley JA, Barr and Hoeben JJ) found that the primary judge had erred in assessing the objective seriousness of the offence at above mid-range. The Court based this conclusion on the fact that Newman AJ had so found solely because he concluded that the applicant had intended to kill the deceased. Such a conclusion was contrary to Apps v R [2006] NSWCCA 290. 14However, the primary reason for the success of the appeal was that the Court concluded that the primary judge had wrongly applied the legislative provisions relating to standard non-parole periods. In this regard, the Court said: "31 There is also considerable force in the applicant's third ground of appeal. It is apparent from his Honour's reasons that his Honour used as his start point in the sentencing process the standard non-parole period of 20 years. There is no indication in the judgment of his Honour having had regard to anything else. His Honour said nothing about an appropriate head sentence. There was no consideration of any balance between the head sentence and the non-parole period. His Honour's choice of a balance of term after fixing the non-parole period almost appears as an afterthought without any reasoning being offered for it. 32 The Court is of the opinion that the error described by Howie J in Maxwell v R [2007] NSWCCA 304 has occurred here. In that case his Honour said: "21 But the major difficulty with the passage is the manner in which the Judge applied the standard non-parole period. It has been stated on more than one occasion in this Court that it is not appropriate to use the standard non-parole period as a starting point to which discounts are added or from which they are subtracted: see Mulato v R [2006] NSWCCA 282 where Spigelman CJ, with whom Simpson J agreed, stated: "[13] It is now well established that it is an error of principle to select a specific figure - whether that be a maximum sentence or a standard non parole period or a 'subliminally derived figure' (see Markarian (2005) 79 ALJR 1048 at [39]) - and to add or subtract matters item by item in some sort of mathematical process. The reason that this approach constitutes legal error is because it impermissibly confines the sentencing discretion. Indeed, the use of the maximum sentence in such a manner was precisely the error identified by the High Court in Markarian." 22 Later, after referring generally to R v Way (2004) 60 NSWLR 168, the Chief Justice stated: "[17] In Way, the Court concluded: [131] What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of the seriousness, and irrespective of whether the offender's guilt was established after a trial or by a plea), at the standard non- parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act. [18] This reasoning rejects the use of the standard non-parole period as a "starting point" or fulcrum for a mathematical process. Even where the offence attracts a standard non-parole period, because it is in the middle of the range of objective seriousness, error occurs whenever the standard non-parole is used as a "starting point" rather than as a "reference point". (See R v Sangalang [2005] NSWCCA 171 esp at [19]-[24]; R v Hung Lo [2005] NSWCCA 436 at 159 A Crim R 71 esp at [64]-[71].) The description in AT supra at [36] of the maximum sentence as "a more appropriate start point" should not be understood as indicating a different view." 23 A similar error in applying the standard non-parole period was identified in Reaburn v R [2007] NSWCCA 60." 33 It follows that this ground of appeal has also been made out. Re-sentence 34 We accept that there is force in the Crown submission that the objective seriousness of this offence, given the applicant's intent, the use of a weapon and some level of premeditation is at the middle of the range for offences of this kind. There are, however, as was submitted on behalf of the applicant, significant mitigating circumstances particularly those relating to remorse, the unlikelihood of re-offending and the fact that his time his time in prison will be more difficult because of his lack of family support." Basis of application 15The applicant expressed the test to be applied in this application as follows: "The test to be applied in determining an application is, whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case (s79(2) of the Act) ... The doubt or question as to sentence may be formed where the material causes the Judge considering the matter unease or a sense of disquiet in allowing the sentence to stand (Varley v The Attorney General (NSW) (1987) 8 NSWLR 30 at 48 - 50; Application of Rendell (1987) 32 A Crim R 243 at 245; Application of Moore (2000) 112 A Crim R 331; Re Pedrana (2000) 117 A Crim R 459)". 16The applicant submitted that the mitigating circumstance was the possibility that had proper sentencing principles been applied, either by Newman AJ at first instance or by the Court of Criminal Appeal on the hearing of the appeal, the resulting sentence would have been less than that actually imposed. 17The applicant submitted that there is a powerful argument that if the applicant had been sentenced correctly in accordance with Muldrock, his sentence would have been appreciably less than it currently is. The applicant identified this as a mitigating circumstance for the purposes of Part 7. This was because the standard non-parole period was a dominant factor in both the first instance sentencing and the appeal decision outcomes. 18The applicant submitted that as a result of the High Court decision in Muldrock, it has to be accepted that R v Way was wrongly decided. Accordingly, the correct approach in sentencing is to apply the intuitive synthesis method of sentencing consistent with the decision of Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357at 378. The applicant submitted that a further consequence of Muldrock was that it was erroneous to characterise s54B(2) of the Crimes (Sentencing Procedure) Act 1999 as framed in mandatory terms or give primary or determinative significance to the standard non-parole period. 19The applicant submitted that the Court of Criminal Appeal still gave primary or determinative significance to the standard non-parole period when re-sentencing the applicant. Consideration 20The submissions on behalf of the applicant misconceive the approach of the Court of Criminal Appeal. Far from giving the standard non-parole period determinative significance, or regarding it as a mandatory consideration and ignoring Markarian, the Court of Criminal Appeal did precisely the opposite. One of the bases for overturning the sentence imposed by the primary judge was that very consideration, i.e. the Court of Criminal Appeal considered that the primary judge had given excessive weight to the standard non-parole period and had not applied the principles set out in Markarian. That was the basis for the quotations from R v Mulato and R v Maxwell. 21It is also clear from the Court of Criminal Appeal's remarks on re-sentencing that it applied Markarian in that it sentenced on an intuitive synthesis basis. 22It follows that I am not persuaded that "Muldrock error" occurred in the re-sentencing of the applicant by the Court of Criminal Appeal. Accordingly, I do not entertain any doubt or question as to the mitigating circumstances in the applicant's case. 23The application is refused. ********** 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. Decision last updated: 24 June 2014