Murder Sentence Reduced Because Judge Misapplied the Law

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By Paul Gregoire and Ugur Nedim

On 30 April 2003, Campsie tiler Gil Bum Yun was celebrating his thirtieth birthday at his Beaumont Street unit, when the men present decided to take the party to a local karaoke bar. Mr Yun lived at the apartment with his mother and an older man, Sun Chun Zie, and Mr Zie’s wife.

After six or seven hours of heavy drinking at various venues, Mr Yun and Mr Zie got into an argument, as they left the last bar. By the time they got to Beaumont Street, the argument had escalated into a fight, which Yun, the larger of the two men, was winning.

Mr Zie left the scene of the fight for a moment and returned with a 50 centimetre-long stick and began hitting Mr Yun with it. Yun then entered his unit and grabbed a knife. His mother tried to stop him, but he pushed her out of the way and said he was going to kill Zie.

Mr Zie’s wife, Laner Jin, followed Mr Yun out onto the street and saw him grab her husband by the arm while holding the knife. Other witnesses also saw Mr Zie staggering towards the apartment block with Mr Yun following him, making stabbing motions with the knife.

Ms Jin heard Yun saying, “Older bro, please wake up.” The assailant then went and arranged for a neighbour to call an ambulance. Mr Zie died shortly after he was admitted to Canterbury hospital.

Accidental stab wounds

Mr Yun’s jury trial began in the NSW Supreme Court on 26 September 2005. He appeared before the court on one count of murder, contrary to section 18 of the Crimes Act 1900. The maximum penalty for the offence is life imprisonment.

The standard non-parole period (SNPP) for murder is 20 years behind bars. An SNPP is a reference point or guidepost for the sentencing judge to consider when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

During the trial, Mr Yun admitted obtaining the knife and holding it when the wounds were made. However, he claimed to have been acting in self-defence, and also that the stabbing was an accident.

The jury, however, rejected Mr’s Yun version of the events, and found him guilty of murder on 20 October 2005.

Standard non-parole periods

NSW Supreme Court Justice Peter Newman remarked on sentencing that he found that the offender had formed an intention to kill the deceased, rather than merely inflict grievous bodily harm upon him which would – incidentally – still have made him guilty of murder. He found that this intent placed the objective seriousness of the offence at between the mid-range and the higher range of offences of this kind.

His Honour explained that the inception of SNPPs made it necessary for him to consider whether the crime was in the mid-range of objective seriousness. Indeed, a 2002 amendment to the Crimes (Sentencing Procedure) Act 1999 made SNPPs apply to a number of crimes, as of 1 February 2003.

“Under the legislation the standard non-parole period is applicable to offences which fall within the midrange of objective seriousness of an offence,” Justice Newman stated.

Factors of mitigation

In determining Yun’s sentence, his Honour identified a number of circumstances that acted as mitigating factors. These included Yun’s remorse. It was heard the offender had paid $8,000 to the family of the deceased as recompense for the crime.  It was also found that Mr Yun was unlikely to reoffend.

Justice Newman further noted that as the offender had only recently arrived in Australia from China, the hardship he would experience in prison would be above the norm, as he would lack the support which many inmates receive from their families.

After taking the mitigating factors into account, his Honour stated, “I am of the view that this is a case where the standard non-parole period should be applied.” He further made clear that without the “matters of mitigation”, he would have applied a more severe sentence.

The Supreme Court justice sentenced Mr Yun to 26 years and 8 months behind bars, with a non-parole period of 20 years.

Intent is not enough

On 26 May 2008, Mr Yun appealed the severity of his sentence to the NSW Court of Criminal Appeal (NSWCCA) before a panel of three justices, consisting of Justice Margaret Beazley, Justice Graham Barr and Justice Ralph Hoeben.

Mr Yun relied upon a number grounds of appeal that the justices said should be dealt with together, as they all related to “the imposition of the standard non-parole period.”

The offender argued that Justice Newman had made an error when relying on his intention to kill as the only reason for assessing the objective seriousness of the crime at the mid-range of murder offences.

The NSWCCA justices cited the 2006 case of Apps v R as an authority on this matter. Justice Carolyn Simpson remarked during the appeal that “of itself, an intention to kill alone cannot establish that a particular instance of the crime of murder is above the midrange of seriousness.”

Their Honours found that based on Justice Simpson’s statement, along with the other factors of Mr Yun’s case, it was clear there was an error in assessing the level of seriousness of the crime as mid-range based solely on the killer’s intent.

“We are of the opinion that the error is of such a kind as would require the court to intervene to quash the sentence and to resentence the applicant,” the NSWCCA ruled.

Misapplying the rule

The appeals court also found that Justice Newman’s application of the SNPP was erroneous. The justices stated that it is inappropriate for a sentencing judge to use an SNPP as a starting point and then add to or subtract from it by considering other mitigating or aggravating 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” Crimes (Sentencing Procedure) Act, their Honours made clear.

The court orders

The panel of NSWCCA justices said that while the offender’s intent, his use of the weapon and some level of premeditation placed the objective seriousness of the case at the mid-range for offences of its kind, the mitigating factors were significant.

On 2 June 2008, the justices ordered that the original sentence be quashed, and Mr Yun was resentenced to 24 years gaol time, with a non-parole period of 18 years.

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