Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lee v Regina [2011] NSWCCA 169
• Hearing dates: 21 April 2011
• Decision date: 28 July 2011
• Before: Basten JA at 1; RS Hulme J at 48; Hidden J at 59

Decision

(1) Grant the applicant leave to appeal against the sentence for murder imposed on him by Price J on 18 June 2010.

(2) Allow the appeal and set aside the sentence.

(3) Sentence Michael Lee for the murder of Joon Yup Lee to imprisonment for -

(a) a non-parole period of 12 years and 3 months, taken to have commenced on 20 March 2008 and expiring on 19 June 2020,

(b) with a balance of the term of 5 years 3 months, commencing on 20 June 2020 and expiring on 19 September 2025,

the term of the sentence being 17 years and 6 months.

(4) Specify the earliest date upon which it appears to the Court that the applicant will be eligible for parole as 20 June 2020.

• Catchwords: CRIMINAL LAW - appeal - sentence for murder - parity between co-offenders - whether insufficient differentiation between sentences based upon level of culpability
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54A
• Cases Cited: Arafan v The Queen [2010] VSCA 356; Dwayhi v R; Bechara v R [2011] NSWCCA 67; Hearne (2001) 124 A Crim R 451; Likiardopolous v The Queen [2010] VSCA 344; Lowe v The Queen [1984] HCA 46; 154 CLR 606; McAuliffe v The Queen [1995] HCA 37; 183 CLR 108; OM v R [2009] NSWCCA 267; R v AJP [2004] NSWCCA 434; 150 A Crim R 575; R v Thomson [2000] NSWCCA 309; 49 NSWLR 383; R v Way [2004] NSWCCA 131; 60 NSWLR 168; R v Wong [2010] NSWSC 171; Regina v AEM (Snr) [2002] NSWCCA 58
• Category: Principal judgment
• Parties: Michael LEE - Applicant; Regina - Respondent
• Representation: Counsel: Mr W G Roser SC - Applicant; Mr J H Pickering - Respondent; Solicitors: Lloyd Truman Sadiq - Applicant; Solicitor for Public Prosecutions - Respondent
• File Number(s): 2009/80915

Decision under appeal

• Citation: R v Lee [2010] NSWSC 632
• Date of Decision: 2010-06-18 00:00:00
• Before: Price J
• File Number(s): 2009/80915

Judgment

1 BASTEN JA : The applicant, Michael Lee, seeks leave to appeal against a sentence imposed on him by Price J for murder: R v Lee [2010] NSWSC 632. He alleges that the sentence was manifestly excessive and, in comparison with that imposed on his co-offender failed to reflect his significantly lower level of culpability: c.f. R v Wong [2010] NSWSC 171 (Buddin J).

2 This Court has recently commented on the undesirability of co-offenders being sentenced by different judges: see Dwayhi v R; Bechara v R [2011] NSWCCA 67 at [42]-[47], Johnson J (Whealy JA and Hidden J agreeing) . Sometimes that course is unavoidable, in practical terms, but in the present case, each co-offender pleaded guilty and they were sentenced within three months of each other in the Supreme Court at Sydney. In the result, this Court has been called upon to make a careful comparison of the judgment on sentence in each matter. In relation to the co-offender, findings of fact must be taken as given: in relation to the applicant, there are challenges to particular findings of fact made in respect of him.

3 The applicant was sentenced to a term of imprisonment with a non-parole period of 13 years, 3 months and a balance of term of 6 years. The overall sentence was, therefore, 19 years and 3 months. The applicant was arrested in the early hours of 20 March 2008 and his sentence was backdated to commence on that date. He is presently eligible to be released on parole on 19 June 2021.

4 The co-offender, Mr Ivan Wong, received a non-parole period in respect of the murder charge of 14 years, with a balance of term of 5.5 years.

5 In the course of the fracas described below, Mr Wong, who had a knife, also wounded another man. He pleaded guilty to a separate count of wounding with intent to inflict grievous bodily harm and was sentenced to 6 years imprisonment, being a non-parole period of 4 years 6 months and a balance of 1 year 6 months. The sentence for murder was accumulated on 18 months of the sentence for wounding.

Factual background

6 The relevant facts may be stated shortly. The sentencing proceeded on the basis of a set of agreed facts which are set out by his Honour in his judgment at [6] and accepted by his Honour for the purpose of sentencing: at [16]. His Honour made some additional findings to which specific reference will be made below.

7 Mr Wong telephoned the applicant on the evening of 19 March 2008 from Hungry Jacks restaurant in George Street, Sydney. Mr Wong apparently believed that one of a group of three young Korean men had "stared at him" at the restaurant. He rang the applicant on his mobile telephone, saying "Fight, come over to Hungry Jacks". When he arrived at the restaurant, the applicant spoke to Mr Wong and then telephoned a female acquaintance, requesting her to bring him a hammer, which she did shortly thereafter, wrapped in a paper bag.

8 The applicant and the co-offender did not confront the three Korean men at Hungry Jacks, but followed them after they left and accosted them in the World Square Shopping Centre, at a short distance from the restaurant.

9 The verbal exchange was initiated by the applicant, who called upon one of the Korean men, Mr Song, to "show some respect" and apologise to Mr Wong for staring at him. Mr Song apologised. The applicant then showed the men Mr Wong's hand, in which he was carrying a knife with the blade open and showed the handle of the hammer in the paper bag, which he was carrying. In respect of each, he said, "You don't see this".

10 After the applicant had inquired whether the men were Korean, Mr Wong suddenly raised the knife and stabbed Mr Song in the chest. The Korean men backed away, as did the applicant, but Mr Wong again swung the knife in their direction. They fled, one, Mr Joon Yup Lee, leaving in a different direction from Mr Song and the third man. The applicant and Mr Wong chased Mr Lee, though why they did so does not appear from the agreed facts or the evidence.

11 Mr Lee slipped and fell, allowing the applicant to catch up with him and attempt to hit him with the hammer. The hammer slipped from his grasp and neither the agreed facts nor the evidence suggested that he caused any significant injury with the hammer. The applicant was grappling with Mr Lee, who was on the ground, when within a matter of seconds, Mr Wong caught up with them and stabbed Mr Lee four times, one wound to the left anterior chest proving fatal. Mr Lee attempted to rise, but the applicant picked up the hammer and struck him, causing him to fall back. Mr Lee then got up and was able to run from the scene.

12 In his evidence on sentence, the applicant agreed that he had been "holding and scuffling with Mr Lee when Mr Wong arrived": Judgment at [15]. In respect of the applicant's role at that stage, the trial judge found at [19]:

"I am satisfied beyond reasonable doubt that the deceased was being held by the offender immediately before the stabbing. The CCTV footage does not establish that the offender was holding the deceased when he was stabbed. As a consequence of the offender's conduct, the deceased was not able to defend himself against being stabbed four times with a knife by the co-offender."

Issues on leave application

13 The applicant sought, in 18 grounds of appeal, to identify separately precise aspects of the sentencing process which were said to reveal error. Although it is often unhelpful for an applicant to simply state that a sentence is manifestly excessive (or manifestly inadequate), on one view the present notice errs in the opposite direction. There were, in effect, four primary bases of challenge.

14 First, issue was taken with his Honour's finding that the applicant's level of culpability was "not significantly less" than that of Mr Wong: at [27]. That was the basis of the submission that there was insufficient differentiation between the sentences: grounds 1 and 3. There should be a grant of leave to raise these grounds.

15 Secondly, there was a challenge to his Honour's conclusion as to where, on a scale of objective seriousness for murder, this particular offence lay. In that respect, there was a specific challenge to the finding that the applicant had "facilitated" the murder of Mr Lee and to a failure to find that the applicant's liability was to be assessed on the basis of "extended common purpose": grounds 2 and 4. In addition, his Honour was said to have erred in treating as aggravating circumstances the use of a weapon and the commission of the offence in company: grounds 5, 6 and 17. It also appears to have been assumed that the finding that there was "a limited degree of planning" (at [23]) was adverse to the applicant: ground 14. These grounds lack substance.

16 Thirdly, there were a number of grounds which alleged that his Honour had given "no or insufficient weight" to particular mitigating circumstances: grounds 7-13. However, it appeared in the course of argument that the underlying rationale of these grounds was that a failure to give sufficient weight to such matters, whilst not revealed on the face of the reasons, was an available explanation for the allegedly excessive sentence: ground 18. They are available (though not in substance separate grounds) and also permit a grant of leave to appeal.

17 Fourthly, his Honour was said to have erred in assessing the degree of departure from the statutory proportion between non-parole period and the balance of the term, having made a finding of special circumstances, for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act "). This was as much a challenge to the length of the non-parole period, as to the period as a proportion of the sentence; nevertheless, it is appropriate to grant leave in respect of these grounds 15 and 16. This challenge formed part of the general claim of manifest excess.

Objective circumstances of offence

18 It is convenient to start with the specific challenge to his Honour's primary fact-finding, namely the conclusion that the applicant "facilitated" the murder of Mr Lee by the co-offender. After noting that Buddin J, in sentencing Mr Wong, had described the murder as "brutal and senseless", his Honour continued at [27]:

"Whilst it is true that if the co-offender had not wielded the knife in the way that he did, the deceased would not have been killed, the offender's role in the commission of the offence was not insubstantial. His violence towards the deceased facilitated the murder."

19 The submission that the applicant "had a very minor role", is untenable. Whether Mr Lee would have escaped if he had not slipped, is a matter of speculation. However, having slipped, his Honour correctly found that the applicant kicked him, attempted to hit him with the hammer and was holding and scuffling with him when Mr Wong arrived. The conclusion that the applicant had deliberately and effectively prevented Mr Lee's escape was justified on the evidence. His conduct was appropriately described as "facilitating" the attack on Mr Lee. The murder was the consequence of the attack.

20 The second element of the challenge was, in substance, an extension of that just discussed. Having described the applicant as having facilitated the murder, his Honour concluded that the applicant had "an intention to inflict grievous bodily harm": at [27]. The complaint was that the applicant was sentenced on the basis that he himself had an intention sufficient to satisfy the mental element of murder, instead of "extended common purpose", which was all that the law required in respect of joint criminal enterprises.

21 Precisely what was meant by reliance on the concept of "extended common purpose", in this context, is unclear. The problems caused by the use of terminology, having roots in past distinctions which are no longer relevant, have been noted on more than one occasion: see, for recent discussions, Likiardopolous v The Queen [2010] VSCA 344 at [46]-[75] (Buchanan, Ashley and Tate JJA) and Arafan v The Queen [2010] VSCA 356 (Maxwell P and Wineberg JA) at [24]-[34]. The 'extension' referred to in that phrase is addressed to the situation where the crime charged was not comprehended by the understanding or arrangement, whether express or tacit, between the offenders, but was an act foreseen by the accused as an incidental crime which might be committed, combined with continued participation in the criminal venture: McAuliffe v The Queen [1995] HCA 37; 183 CLR 108 at 117. Unlike Johns v The Queen [1980] HCA 3; 143 CLR 108, where the concept was applied, the applicant was present at the scene of the crime committed by Mr Wong. Further, it was open to his Honour to find that the infliction of grievous bodily harm, at least on Mr Song, was conduct within the arrangement or agreement, in which both offenders participated.

22 It is beyond doubt that he was sentenced for his part in a joint criminal enterprise. He was not, however, sentenced as the principal who inflicted the fatal wound on Mr Lee. That does not mean that his own mental state was irrelevant. His primary complaint, as to the relative sentence as compared with Mr Wong, is itself premised on the assumption that parties to a joint criminal enterprise may be sentenced disparately, taking into account the level of responsibility and personal circumstances of each. His Honour's conclusion that both the applicant and Mr Wong acted "impulsively" in chasing Mr Lee may, as the applicant submitted, be inconsistent with an agreement to inflict grievous bodily harm on Mr Lee, but his Honour made no such finding. The actual finding in respect of the mental state of the applicant was justified by his own conduct in chasing and attacking Mr Lee with a hammer.

23 In effect, the adverse objective circumstances of the case were as follows:

(a) although the initiative came from Mr Wong, the applicant willingly associated himself with Mr Wong and armed himself for whatever might eventuate;

(b) the applicant was clearly aware that the circumstances of Mr Wong's complaint were directed primarily (or solely) at Mr Song and not Mr Lee, and hardly warranted the attack which followed;

(c) it was the applicant who initiated the confrontation with the three Korean men;

(d) it was the applicant who led the chase after Mr Lee as he ran away;

(e) it was the applicant who first attacked Mr Lee and continued to hold and scuffle with him until Mr Wong arrived;

(f) the applicant sought to continue his attack on Mr Lee after he had been stabbed by Mr Wong.

24 A number of factors of aggravation were rejected by the sentencing judge. First, he rejected a suggestion on the part of the prosecution that the attack was racially motivated: at [20]-[22]. Secondly, he rejected a prosecution submission that the offence was part of a "planned criminal activity", concluding at [23]:

"Whilst the evidence establishes that there was a limited degree of planning, I am not satisfied to the requisite standard that the murder was part of a planned criminal activity. It seems to me that the offender's conduct after the stabbing of Mr Song, mainly arose impulsively."

25 This finding, read in context, was favourable to the applicant. The challenge to the finding (ground 14) is without substance. There was undisputed evidence of the meeting at Hungry Jacks; each, to the knowledge of the other, was carrying a weapon, and the confrontation with Mr Song was planned as part of the ostensible purpose which led the applicant and Mr Wong to confront the three Korean men. The acts which followed, constituting the brutal and senseless attack on the unarmed and unoffending Mr Lee, were not, his Honour held, specifically planned.

26 Three further grounds of appeal complain that his Honour accepted as circumstances of aggravation the fact that the activity involved the use of a weapon and that it was carried out in company (grounds 5, 6 and 17). The suggestion that these were indeed not circumstances of aggravation required a rejection of his Honour's statement that neither was "in dispute": at [24]. The substance of the ground was that they were double-counted, as elements of the objective circumstances and as aggravating factors (ground 17).

27 There is no doubt that s 21A of the Sentencing Procedure Act is apt to give rise to awkwardness in writing judgments on sentence. Further, it is well understood that there is a risk of double-counting where a particular aggravating factor identified in s 21A(2) is also an element of the offence. Most of the factors listed in s 21A(2) will, if applicable, be taken into account in determining the objective seriousness of the offence. Because a sentencing judge refers to them explicitly as aggravating factors, does not mean that there has been double-counting. There was nothing in his Honour's reasons to suggest that double-counting occurred in the present case.

Mitigating factors

28 The first complaint as to factors of mitigation relates to the discount given for the plea of guilty. A plea was taken only on the second day fixed for the trial (although agreement had been reached on the first day) and the sentencing judge discounted the sentence by 12.5%. There was some ambivalence in the applicant's submissions as to whether that was to be treated as an inadequate discount, or was inadequate when compared with that accorded Mr Wong (namely, 20%) for a plea upon arraignment. The safer course is to accept that both issues were being raised. However, on their face, neither discount was inappropriate in the circumstances of each case. According to the sentencing judge, counsel for the applicant did not submit that each discount should have been same, as Mr Wong had entered a plea upon his arraignment, having waived his right to a committal hearing: R v Wong at [31], referred to by the sentencing judge at [38].

29 The applicant's late plea undoubtedly had utilitarian value, as his Honour accepted. The case in favour of a greater discount was based on two factors. The first was that the applicant had confessed his part in the criminal activity and co-operated with police, including undertaking a "walk through" of the crime scene, immediately upon arrest. Secondly, it was submitted that the reason for the delay in entering a formal plea resulted from the original charges including attempted murder of Mr Song and a charge of wounding with intent to inflict grievous bodily harm on Mr Song. It was only when agreement was reached to abandon the serious charges in respect of Mr Song that the applicant agreed to plead guilty to the charge of murdering Mr Lee.

30 In concluding that a lesser discount was appropriate in relation to the applicant, the sentencing judge stated at [38]:

"The reasons advanced for the delay in the plea are largely irrelevant as the utilitarian value of the delayed plea was less. ... There is, in my opinion, a significant difference in the utilitarian value of a plea entered upon arraignment and a plea offered on the second day of the time allocated for trial. The utilitarian value of the Agreed Facts was reduced as agreement was not reached until 10 May 2010. I accept that there has been a significant saving in court time and the trial may have involved difficult issues of accessorial liability."

31 The approach adopted by the trial judge is entirely within the scope of the guidelines given in R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 at [155] (Spigelman CJ). It is possible, that in some circumstances there may be a concern as to the reasonableness of expecting an early plea where an indictment has been overladen with charges which could not reasonably be expected to proceed to trial, but which the prosecution has declined to withdraw. There was no such suggestion in the present case and, as the sentencing judge noted, there was no evidence of an offer to plead guilty to the murder at an earlier stage, on the basis that other charges would be withdrawn or reduced. The disparity in discounts was warranted by the differing circumstances of the two offenders.

32 The other factors which it was argued were either not taken into account at all or were given insufficient weight were expressions of contrition and remorse; previous good character; absence of significant criminal convictions; assistance to police and pre-trial disclosure; unlikelihood that the applicant would re-offend and the good prospects of rehabilitation: grounds 8-13. There was clearly a degree of overlap between these complaints and, all these matters being mentioned by the sentencing judge, it was not possible to contend that any one was entirely neglected: indeed, the language of the grounds of appeal reflects closely the factors identified in the judgment on sentence at [31]-[35]. It is not necessary to repeat that discussion here. If the complaint has substance, it is because, for some reason which does not appear from the judgment itself, the overall effect of taking these factors into account was to reduce the sentence by an inadequate amount.

33 Viewed independently, the complaint lacks substance; the sentence was not manifestly excessive. Whether there was inadequate reflection of the differing levels of culpability of the applicant and Mr Wong is a matter addressed below.

Adjustment of sentence for special circumstances

34 The last matter of specific complaint concerned the adjustment for special circumstances. Absent a finding as to special circumstances, his Honour would have been obliged to impose a balance of the term of sentence which did not exceed one-third of the non-parole period: Sentencing Procedure Act , s 44(2). If one assumes that the period of mandatory custody was an appropriate length, then the balance of the term, without adjustment, should not have exceeded 4 years and 5 months. Approaching it from the other end, if a total sentence period of 19 years, 3 months was appropriate, the non-parole period should have been not less than 14 years, 5 months. Of course, his Honour need not have undertaken either calculation, but they indicate the range of variation from the statutory norm. There was in fact a slightly greater variation than in Mr Wong's case, he having received a non-parole period of 14 years for the murder with a balance of sentence of 5 years, 6 months. Nevertheless, the level of variation may not reflect the individual circumstances of the two offenders adequately. This assessment can best be made in the context of the overall comparison required by grounds 1, 3 and 18.

Whether disparity appropriate

35 The equal treatment of co-offenders requires both that those similarly placed be treated equally and that those subject to material and relevant differences should be treated differently: see Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610-611 (Mason J) and 617 (Brennan J); OM v R [2009] NSWCCA 267 at [7]. In the present case, the applicant received a somewhat lighter sentence than his co-offender. The contention is that objectively viewed, the disparity should have been greater.

36 The factors which tended to place the applicant in a similar position to Mr Wong in respect of culpability have been set out at [23] above. There were other factors which tended to set their respective circumstances apart. These were:

(a) the aggression was instigated by Mr Wong;

(b) Mr Wong wielded the knife by which the fatal injury was inflicted;

(c) Mr Wong was on conditional liberty in relation to other charges at the time of the offence;

(d) the applicant had better prospects of rehabilitation and a lower likelihood of re-offending.

37 The applicant complained that his Honour's assessment of his culpability for the murder as being "not significantly less than" that of Mr Wong did not adequately reflect the role of each. In Mr Wong's case, Buddin J had assessed the offence as "falling below, but only slightly below, the 'middle of the range of objective seriousness'": R v Wong at [36]. His Honour made a similar finding without the qualification: at [27].

38 Language referring to "the middle of the range of objective seriousness" is taken from s 54A(2) of the Sentencing Procedure Act , where it is used to characterise the case in which a standard non-parole period is applicable. Differing views have been expressed as to the relevance of a standard non-parole period, once the Court has determined that it is not, in the circumstances of the case, applicable: see, eg, R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [122]; followed in R v AJP [2004] NSWCCA 434; 150 A Crim R 575 (Simpson J); cf at [41]-[50] (Adams J). In the present case, nothing turns on the use of the language of s 54A, so long as appropriate weight has been given to the mitigating circumstances which were clearly treated as not falling within the assessment of "culpability".

39 In assessing the relationship between the offences, it must be remembered that the apparent equivalence of the sentences (19 years, 6 months for Mr Wong and 19 years, 3 months for the applicant) is partly accounted for by the different discounts for their pleas of guilty. Allowing for the discounts, the starting point for Mr Wong's sentence was 24 years, 4.5 months and for the applicant, 22 years. The disparity is then seen to be greater, but the applicant's sentence is less than 10% below that of Mr Wong. Given the factors differentiating the two, in my view that difference is manifestly too low.

40 As explained by the sentencing judge in the present matter, in respect of Mr Wong at [43]:

"The co-offender had been placed on a bond and on two periods of probation for these offences by the Children's Court. At the time of the murder, the co-offender was subject to three kinds of conditional liberty which in his case was a significant factor of aggravation."

41 The respondent contended on the appeal that limited weight should be given to the fact that Mr Wong committed the offence while on conditional liberty, because the matters for which he was on conditional liberty were relatively minor offences, not involving personal violence. This contention should be rejected. The underlying offences were factors to be taken into account, as in fact they were, in relation to Mr Wong's minor criminal record for offences of dishonesty: R v Wong at [28]. It may be that the breach would have been more serious if the offences for which he was on conditional liberty were similar to those committed in the present case, but the mere fact of conditional liberty is, as the sentencing judge noted, a significant factor of aggravation. The question for present purposes is whether that, and the other factors, were adequately taken into account in assessing the proper sentence for the applicant.

42 One further factor which arises, partly perhaps because of the unfortunate procedural history in these two matters, is that Mr Wong was sentenced on the basis that it was the applicant who brought "the weapons", a phrase which must include the knife, to the scene: R v Wong at [30]. That was not the basis upon which the applicant came to be sentenced: rather, there was at least an implicit finding that it was Mr Wong who had the knife at all relevant times: the applicant only obtained the hammer: Agreed Facts, set out at [6] and [15].

Conclusions

43 As noted earlier, the applicant should be granted leave to appeal. Although some grounds lack substance, there is no purpose in limiting the terms of the grant, assuming there is power to do so.

44 The submission that the difference between the sentences imposed on the applicant and Mr Wong failed adequately to reflect their differing levels of culpability and the different findings in respect of rehabilitation should be accepted. The applicant should be resentenced. In undertaking that task, all the matters relied on by the primary judge, except those specifically qualified above, should be taken into account. It is also necessary to have regard to the fact that the applicant was youthful at the time of the offence, having turned 18 years only 4 months earlier. As noted by Buddin J in sentencing Mr Wong, some allowance must be made for immaturity and the importance of rehabilitation: see, eg, Regina v AEM (Snr) [2002] NSWCCA 58 at [96]-[98] (Beazley JA, Wood CJ at CL, Sully J).

45 In Wong , Buddin J noted that an offender's youth "cannot simply be used as a 'cloak of convenience'", by which I understand is meant a cloak for leniency. The age of majority is not to be treated as a bright line dividing maturity from something less; nor does the seriousness of the offence totally preclude considerations deriving from youthfulness. Such factors are points on a scale; the applicant committed one of the most serious offences under the law, when over 18 years, but only just.

46 In my view, the starting point for the applicant's sentence, taking account of that imposed on his co-offender, should have been 20 years. Applying the discount accepted by the sentencing judge and a similar (though not identical) proportion between the non-parole period and the balance of the term, the appropriate non-parole period is 12 years and 3 months, with a balance of term of 5 years 3 months. The sentence imposed should be set aside and the applicant should be re-sentenced accordingly.

47 Accordingly, I propose the following orders:

(1) Grant the applicant leave to appeal against the sentence for murder imposed on him by Price J on 18 June 2010.

(2) Allow the appeal and set aside the sentence.

(3) Sentence Michael Lee for the murder of Joon Yup Lee to imprisonment for -

(a) a non-parole period of 12 years and 3 months, taken to have commenced on 20 March 2008 and expiring on 19 June 2020,

(b) with a balance of the term of 5 years 3 months, commencing on 20 June 2020 and expiring on 19 September 2025,

the term of the sentence being 17 years and 6 months.

(4) Specify the earliest date upon which it appears to the Court that the applicant will be eligible for parole as 20 June 2020.

48 RS HULME J: In this matter I have had the advantage of reading the reasons for judgment of Basten J. His Honour has set out the relevant facts and I accordingly I can be brief.

49 I agree with his Honour that Price J did not err in finding that the Applicant "facilitated" the murder of Mr Lee, and had an intention to inflict grievous bodily harm, and that there was no double counting in Price J's identification of the aggravating factors of use of a weapon and the offence being committed in company. I agree also that there is no validity in the Applicant's complaints so far as the discount for his or Wong's pleas of guilty are concerned.

50 Section 54A et seq. of the Crimes (Sentencing Procedure) Act 1999 provide that unless there are reasons for not doing so a court is to impose on a person who commits an offence of murder that falls into the middle of the range of objective seriousness, a non-parole period of 20 years. If the proportions envisaged by s 44 of that Act were followed, a 20 years non-parole period would correspond with a total sentence of 26 years and 8 months.

51 When regard is had to the 12 discount allowed to the Applicant for his plea, the sentence imposed of 19 years and 3 months accords with a pre-discount sentence of 22 years, only 4 years and 8 months or 17% less than that appropriate for an offence falling within the middle of the range of objective seriousness committed by an offender whose subjective circumstances do not call for some amelioration of such a sentence.

52 In my view the circumstances of the offence and of the Applicant called for a greater difference than this 4 years and 8 months. The principal factors leading me to that conclusion are as follows:-

(i) There was no intention to kill;

(ii) There was little premeditation;

(iii) The Applicant was not the principal offender even though, as Price J concluded, his culpability was not significantly less than that of the principal offender, Wong;

(iv) The Applicant exhibited remorse and an acceptance of responsibility for his offending;

(v) The Applicant was found to be of prior good character;

(vi) Price J found that the Applicant has good prospects of rehabilitation and is unlikely to re-offend;

(vii) The Applicant was not yet aged 18 at the time of the offence.

53 Price J said that he gave this last mentioned factor modest weight, a view with which I agree. As was said in Hearne (2001) 124 A Crim R 451 at [25], "Where ... immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years." However, as was also contemplated in that case, it takes no great maturity to appreciate that bringing weapons such as knives and hammers into physical confrontations infringes the rights of others in a way that no civilized society can tolerate. I can accept, as Price J did, that the Applicant's youth may have been a contributing factor to his offending. However, even 18 year olds must know that blows with hammers or knives are capable of serious injury. While in light of the matters listed above, personal deterrence, rehabilitation and protection of society do not demand a sentence of the length often imposed for murder, general deterrence and retribution must be given weight.

54 In arriving at the conclusion I have I do not ignore the fact that there were factors tending to aggravate the Applicant's offence - that it was committed in company and involved the use of a weapon, indeed two weapons, that were procured with the prospect of use in a fight. There was also to be taken into account a Form 1 offence of assault constituted by displaying the knife Wong had to a third member of the victim's group.

55 Thus the conclusion at which I have arrived is that the sentence is manifestly excessive. I am not sure that I would have arrived at the same conclusion if the only comparison was with the maximum penalty of life imprisonment but the finer guidepost or reference point provided by the standard non-parole period leads me to the view that Price J's nominal starting point of 22 years was not only too high but appellably so.

56 I am also of the view that the notional commencing point of the Applicant's sentence was high by comparison with the notional commencing point for the sentence imposed on Wong. After adding back the discount of 20% for the latter's plea, the notional starting point for his sentence of 19 years becomes 24.375 years. Yet disadvantages that Wong suffered from and the Applicant did not included that Wong was the principal aggressor, deliberately wielding a weapon far more calculated to inflict death than the hammer used (to a limited degree) by the Applicant. Wong also was on conditional liberty pursuant to three separate bonds imposed as incidents of three separate previous sentences. Numerous authorities have laid down that offending on conditional liberty is a seriously aggravating circumstance. Wong had a criminal record and was an abuser of illicit drugs. Arguing in the opposite direction was the fact that Wong would seem to have had a somewhat more traumatic childhood than had the Applicant. There were other less significant differences.

57 Successful appeals on parity grounds require that there be a "marked" difference in sentences. My mind has vacillated on the question whether the less than 2 years difference in notional starting points can, having regard to the differences in the circumstances of the two offenders be so described but ultimately I have come to the view that it can. Thus on this ground also, I would allow the appeal.

58 I agree with Basten JA that an appropriate starting point in the determination of the Applicant's sentence is 20 years. When to this figure the discount of 12% for the Applicant's plea is taken into account the result is 17 years. Considerations of parity and proportionality with the sentence imposed on Wong justify the non-parole period being reduced below the proportion specified in s 44 of the Crimes (Sentencing Procedure) Act and accordingly I agree with the orders proposed by Basten JA.

59 HIDDEN J : To reflect the difference in culpability of co-offenders in the sentences passed upon them is a difficult discretionary task. It is only after careful consideration that I agree that the sentence passed upon the applicant does not adequately distinguish his criminality from that of Mr Wong. I agree with the orders proposed by Basten JA and with his Honour's reasons

**********

Amendments

29 July 2011 - Correcting par numbers for commencement of judgments
Amended paragraphs: Coversheet

Decision last updated: 29 July 2011