- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Soong  QSC 133
ANTHONY YOON SUN SOONG
SC No 1046 of 2015
Application for a pre-sentence ruling
Supreme Court at Brisbane
28 May 2019
15 March 2019; supplementary submissions on behalf of the prisoner dated 20 March 2019; supplementary submissions on behalf of the Crown dated 20 March 2019
It is ruled that s 538 of the Criminal Code 1899 (Qld) has no application to the circumstances in which the offence of attempted murder was committed by the prisoner.
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – where the applicant prisoner was convicted of attempted murder – whether the prisoner desisted of his own motion from the further prosecution of his intention to kill the victim – whether the fulfilment of the prisoner’s intention was prevented by circumstances independent of his will – whether the maximum penalty for the offence of attempted murder was, in the proven circumstances, reduced by reason of s 538 of the Criminal Code 1899 (Qld).
Criminal Code 1899 (Qld), s 4, s 306, s 536, s 538
Evidence Act 1977 (Qld), s 132C
Penalties and Sentences Act 1992 (Qld), s 15
Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Cheung v The Queen (2001) 209 CLR 1, followed
R v Gill; ex parte Attorney-General (Qld) (2004) 146 A Crim R 12, cited
R v Morrison  1 Qd R 397, cited
R v Parker  QCA 198, cited
R v Witchard  1 Qd R 428, followed
A Kimmins for the applicant
P McCarthy for the respondent
Gatenby Criminal Law for the applicant
Office of Director of Public Prosecutions for the respondent
The trial of the applicant prisoner before a jury commenced on 29 January 2019. He faced an indictment alleging one count of burglary (count 1), one count of attempted murder (count 2) or, in the alternative, doing grievous bodily harm with intent to do so (count 3) and one count of unlawful assault whilst armed with a gun (count 4). Each offence was alleged to have been committed on 6 December 2015.
In the presence of the panel, the prisoner pleaded guilty to counts 1 and 4 and not guilty to counts 2 and 3 but, in the case of count 3, he also pleaded guilty to doing grievous bodily harm simpliciter. The Crown did not accept that plea in discharge of counts 2 or 3 and so the trial proceeded on those counts.
On 5 February 2019, the prisoner was found guilty by the jury of attempted murder. Following administration of the allocutus, the sentencing hearing was adjourned to allow for material in mitigation of penalty to be assembled. When the hearing resumed on 14 February 2019, counsel for the prisoner made an instanter application for a ruling that s 538 of the Criminal Code 1899 (Qld) applied to the circumstances of the commission of the offence in this case, such that the maximum penalty which would otherwise have applied to that offence was reduced. Written submissions were later exchanged and a hearing with respect to this issue took place on 15 March 2019. Supplementary written submissions were subsequently provided by both parties.
Section 538 of the Code is in the these terms:
“538 Reduction of punishment
When a person is convicted of attempting to commit an offence, if it is proved that the person desisted of the person’s own motion from the further prosecution of the person’s intention, without its fulfilment being prevented by circumstances independent of the person’s will, the person is liable to one-half only of the punishment to which the person would otherwise be liable.
If the punishment to which the person would otherwise be liable for the attempt is imprisonment for life, the greatest punishment to which the person is liable is imprisonment for 14 years.”
The onus is on the prisoner to establish that he is entitled to the reducing benefit of s 538 of the Code. The standard is on the balance of probabilities. To succeed, the prisoner must demonstrate that he voluntarily desisted because of his “own determination to do so, unaffected by the intervention of any other circumstance which would prevent the fulfilment of that intention”. That “prompting, impulse or inclination must not be a response to the existence of some other external circumstance seen as likely to frustrate the implementation of the intention”. Furthermore, it is “the intention prevailing during the commission of the offence to which the provision relates, not an intention which may continue thereafter”. One must be able to “identify the desisting as the culmination, or end point, of the conduct which constitutes the attempt”. The reducing benefit of s 538 is “not available where, having made one attempt, the offender repents of his wrong-doing and desists from making a further attempt”. The same may be said of any case where the attack “ended only because the attacker believed or expected at that point that [his or her] intention had been fulfilled”.
The prisoner’s argument to support a reduction in the maximum penalty pursuant to s 538 of the Code depends on a particular view of the facts or, more particularly, the circumstances surrounding the commission of the attempted murder. That view is contested by the Crown.
By s 132C of the Evidence Act 1977 (Qld), if an allegation of fact is in contest on sentence, the sentencing judge may act on the allegation if the judge is satisfied on the balance of probabilities that the allegation is true: s 132C(3). The degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true: s 132C(4). It is of course not open to a judge to sentence on a factual basis that is inconsistent with the jury’s verdict.
As a general proposition, the onus is on the Crown to prove the factual foundation for a sentence although, as already mentioned, here there is an onus on the prisoner to prove on the balance of probabilities that he “desisted of [his] own motion from the further prosecution of [his] intention, without its fulfilment being prevented by circumstances independent of [his] will”.
The prisoner did not give evidence at the trial or at the hearing of this issue, but he did through his counsel seek to introduce some additional evidence going to the credibility and/or reliability of one of the Crown witnesses, Samuel Wallace. That evidence, consisting as it did of a recorded conversation between police and Mr Wallace at the Gold Coast Hospital following the commission of the offences and a written police statement which Mr Wallace signed eight days later (on 14 December 2015), was received without objection. Such a course is expressly authorised by s 15 of the Penalties and Sentences Act 1992 (Qld), a provision that permits a sentencing court to receive any information it considers appropriate to enable it to impose “a proper sentence”. The court is not “constrained by any of the rules of evidence, in receiving information”.
It follows that the additional evidence introduced during the sentencing phase falls to be considered alongside the evidence given at the trial, with the assessment of the latter to be informed by the court’s impression as to its accuracy. But, whether assessing the trial evidence or the additional evidence, the touchstone must always be compatibility with the jury’s verdict. It should also be appreciated in a case like this where the prisoner chose not to testify that the court may more readily accept the Crown evidence including inferences to be drawn from that evidence. As to that, in R v Miller, Holmes J (as the Chief Justice then was) observed:
“It is self-evident that there is at [the sentencing] stage no longer any presumption of innocence which might be infringed by an expectation that the accused will give evidence. It is true that he has a right to maintain his silence and that he cannot be compelled to give evidence on sentence; but those entitlements are not infringed by the drawing of an inference in favour of the prosecution case if he does not do so.”
The lead-up to the attempt on Mr Wallace’s life was not the subject of much, if any, dispute at the trial but, in any event, what follows are the facts (relevant to the issue presently under consideration) as I find them to be.
The prisoner had been in a relationship with a woman by the name of Jhai Saric who resided in a unit at Broadbeach. That ended in November 2015 and, not long after, Ms Saric became acquainted with Joshua Milani. Ms Saric and Mr Milani had dinner together at a restaurant on the evening of Friday, 4 December 2015 and, afterwards, spent the night at a unit situated in Burleigh Waters where Mr Milani lived with two of his friends, one of whom was Mr Wallace. On the following morning, Mr Milani drove Ms Saric home.
The prisoner attempted to telephone Ms Saric on several occasions during the day on the Friday and, when his calls went unanswered, he sent a stream of abusive text messages to Ms Saric, some of which contained threats against her. On Saturday afternoon, the prisoner sent more text messages to Ms Saric. Again, threats were made and, in one text, he indicated that he knew about her liaison with Mr Milani as well as his identity. The prisoner then took to messaging Mr Milani on Facebook during the evening, threatening him and demanding that they “meet up”.
At around midday on Sunday, 5 December 2015, the prisoner appeared outside Ms Saric’s unit. He was heard to shout demands that Ms Saric either let him in or come out. He struck at the flyscreens for the external windows before forcing the door open and entering the unit. The building manager, having heard the commotion, decided to go up to the unit. He found the prisoner in one of the bedrooms pinning Ms Saric down on a bed. The prisoner then rolled off Ms Saric and pointed a gun at him. The manager ran from the unit and called the police. The assault on Ms Saric and the building manger constituted count 1.
Later that afternoon, the prisoner telephoned Mr Milani several times. He was irate and said that he wanted to “meet up with [Mr Milani] to kill” him. For reasons Mr Milani explained when giving evidence, he agreed to meet at a location specified by the prisoner; the carpark for a restaurant at Merrimac. Mr Wallace (who had been present with Mr Milani when he received a number of the telephone calls from the prisoner) insisted on accompanying Mr Milani and the pair left shortly thereafter in a vehicle driven by Mr Wallace.
When they arrived at the location, Mr Wallace drove into the carpark and parked the vehicle. Mr Milani then sent a text message to the prisoner – “I’m here”. A short time later, the prisoner entered the carpark in a vehicle driven by Ms Saric. It braked abruptly before the prisoner alighted and quickly advanced towards the vehicle in which Mr Wallace and Mr Milani were seated. He was armed with a gun. Mr Milani was at this point in time getting out of the vehicle, but Mr Wallace saw that the prisoner was armed and shouted a warning to Mr Milani. Mr Milani got back into the passenger compartment and Mr Wallace started to drive off.
What happened next was the subject of argument, to varying degrees.
It is clear that, as the prisoner advanced towards the vehicle in which Mr Milani and Mr Wallace were seated, he fired at least four bullets in rapid succession. These penetrated the bodywork of the vehicle, and those defects were described in evidence at the trial as D1, D2, D3 and D4. The bullet that caused the damage at D2 passed through the driver’s side door and then through Mr Wallace’s right thigh before lodging in his left thigh. The bullet that caused the damage at D1 impacted on the pillar between the driver’s side door and the rear passenger door on that side of the vehicle at a point that must have been only centimetres behind where Mr Wallace’s head was positioned. Although there was argument at trial and on the hearing of this application regarding the precise sequence of the four shots, all that needs to be said is that I am satisfied to the requisite standard that the bullets causing the damage at D3 and D4 were fired before the bullet that wounded Mr Wallace (D2) and that the last shot fired by the prisoner caused the damage at D1.
After the last shot was fired by the prisoner, he reached a position that was adjacent to the driver’s side window. The window was down. Mr Wallace exclaimed, “You’ve shot me”, but the prisoner held the gun to Mr Wallace’s head and pulled the trigger. Mr Wallace heard a sound which he described as a “click”. The gun failed to fire, either because it had jammed or because there were no more live rounds left in the gun.
With that, the prisoner moved closer to Mr Wallace and viciously pistol-whipped him with the “bottom of the gun” three times. He struck Mr Wallace in the middle of the forehead causing three separate lacerations. Mr Wallace then said, “You’ve got the wrong guy”. The prisoner replied, “I don’t care. If you go to the police, I’ll kill you”. The prisoner then ran off.
The prisoner did not dispute that he assaulted Mr Wallace as described in the preceding paragraph. After all, that assault constituted count 4 to which the prisoner pleaded guilty. Instead, for the prisoner it was argued that the events described in paragraph  did not happen. Rather, it was submitted, the court should find that, after the last shot was fired by the prisoner, he voluntarily desisted from any attempt to murder Mr Wallace, deciding instead to pistol-whip him and leave after a warning. In support of that argument, the feature that Mr Wallace made no mention of these events when interviewed by police at the Gold Coast Hospital was pointed to, as was the evidence of Mr Milani at the trial.
It is true that Mr Wallace did not mention the events described in paragraph  when interviewed by police in hospital, but he had been taken there for treatment (including surgery) after being shot and could hardly be expected to provide a comprehensive version in those circumstances. Indeed, the feature that he failed to do so was not put to him when cross-examined at the trial and probably for the reason that he included that very detail in the statement he provided to police a mere matter of days later (14 December 2015). Likewise, it is true that Mr Milani made no mention of these events in the account he gave to the jury, and did not hear any “click”, but he was not looking in the direction of the prisoner when they occurred and was otherwise distracted looking at the wounds to Mr Wallace’s legs while attempting to push one of his legs down on the accelerator. I have also considered the evidence given by other witnesses called at trial as to what they heard or saw. Unsurprisingly, those accounts vary in a number of respects because of their different perspectives and perceptions, not to mention that each was exposed to a display of violence that must have been as shocking as it was unexpected. None of those accounts is such as to cause me to doubt the accuracy and reliability of the evidence Mr Wallace gave as to the events described in paragraph . Indeed, Mr Wallace’s credibility was not challenged at the trial and his evidence was not contradicted by any evidence from the prisoner. All in all, Mr Wallace was an impressive witness. The evidence he gave was free of embellishment; if anything, it was understated. The moment in time when he faced his own mortality, only to be saved by a misfiring or unloaded gun, was no doubt seared in his memory.
It follows that I do not accept the factual premise for the prisoner’s argument. He did not desist from his attempts to take Mr Wallace’s life; he was prevented from executing that intention because his gun failed to fire.
There is another reason why the prisoner’s argument cannot be accepted. The sole issue at the trial was the prisoner’s intent at the time when he fired the shot that caused the damage at D2. The whole case was litigated in that way and the jury was directed accordingly. By the verdict that was returned on count 2, the jury was satisfied beyond reasonable doubt that, at the time when that shot was fired, the prisoner intended to kill Mr Wallace. It follows that the offence was complete after that shot was fired. It is irrelevant to s 538 what may or may not have occurred after that point in time. Section 538 is, for the reasons earlier discussed (at ) only concerned with the intention prevailing during the commission of the offence; not an intention which may continue thereafter. As de Jersey CJ said in R v Witchard, “[I]t would be surprising were the benefit of the provision, which concerns punishment for an attempt to commit an offence, relate to, not the manner of commission of the offence, but to retreat from the commission of another offence”.
For these reasons, I am not satisfied that the prisoner has discharged the onus on him to prove that he desisted of his own motion from the further prosecution of his intention, without its fulfilment being prevented by circumstances independent of his will. It will accordingly be ruled that s 538 of the Code has no application to the circumstances in which the offence of attempted murder was committed by the prisoner.
On 14 February 2019, the prisoner also pleaded guilty to one charge of contravening a domestic violence order.
Criminal Code 1899 (Qld), s 306(1).
Criminal Code 1899 (Qld), ss 536(2) and 538(2).
R v Witchard  1 Qd R 428, ,  and .
Ibid, . It is, however, to be observed that s 132C(4) cannot apply and, as such, in the discharge of the onus on the prisoner, the degree of satisfaction required is simply on the balance of probabilities; it will not vary as provided by s 132C(4) or, for that matter, in accordance with the sliding scale discussed in Briginshaw v Briginshaw (1938) 60 CLR 336.
Ibid,  per de Jersey CJ. And see  (Mackenzie J) and  (Mullins J).
Ibid,  per de Jersey CJ. And see - (Mackenzie J) and  (Mullins J).
Ibid,  per de Jersey CJ. And see  and  (Mackenzie J).
Ibid,  per de Jersey CJ.
Ibid,  per Mackenzie J.
Cheung v The Queen (2001) 209 CLR 1, , ; R v Parker  QCA 198, .
Criminal Code 1899 (Qld), s 538(1).
Sentence exhibit 3.
Sentence exhibit 4.
R v Morrison  1 Qd R 397, 404 per Pincus JA and Fryberg J.
 1 Qd R 548.
Ibid, . During the hearing of this issue, the question whether it is open to the court to rely on the additional evidence was reserved: Transcript (15 March 2019), 1-7, 8. The evidence is plainly admissible and capable of being relied on as part of the fact-finding exercise.
Trial exhibit 9.
Trial exhibit 12. It should be added that, at trial, Mr Milani could not recall having read the Facebook messages until the police photographed them: Transcript (29 January 2019), 1-67.
Transcript (29 January 2019), 1-69, 71.
Trial exhibit 9.
See trial exhibits 38, 39 and 73.
Transcript (31 January 2019), 3-34.
Sentence exhibit 3.
Sentence exhibit 4, par 24. Relevantly, it is the following appears:
“When he got to the car he pulled the trigger but no bullet came out. I was looking straight at him and saw that he had brown eyes. The whole time I had the car windows down. The male came to my window and with the bottom of the gun pistol whipped me [three] times in the head standing one [metre] away.”
Transcript (30 January 2019), 2-58.
 1 Qd R 428.
- Published Case Name:
R v Soong
- Shortened Case Name:
R v Soong
 QSC 133
28 May 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 133||28 May 2019||Application for a ruling that s 538 of the Criminal Code 1899 (Qld) applied to the circumstances of the commission of the offence of attempted murder (to in effect reduce the maximum penalty to 14 years imprisonment from life imprisonment) refused: Burns J.|