R v Kwon [2004] NSWSC 146 (27 February 2004)

Last Updated: 23 March 2004

NEW SOUTH WALES SUPREME COURT

CITATION: R v Kwon [2004] NSWSC 146



CURRENT JURISDICTION:

FILE NUMBER(S): 70062/03

HEARING DATE{S): 13 February 2004


JUDGMENT DATE: 27/02/2004

PARTIES:
Regina
Yong Gap Kwon

JUDGMENT OF: Dowd J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
(Crown) W. Robinson QC
(Prisoner) P. Boulten

SOLICITORS:
(Crown) D. Kelly
(Prisoner) V. Murphy


CATCHWORDS:
Manslaughter
Plea of Guilty
Sentencing
Extent of Discount
Reduction of Non-Parole Period

ACTS CITED:


DECISION:



JUDGMENT:

- 11 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION


Dowd J


Friday 27 February 2004


070062/03 - REGINA v YONG GAP KWON

SENTENCE

1 HIS HONOUR: Yong Gap Kwon stands for sentence today having entered a plea of guilty to Manslaughter. The prisoner was originally charged with murder at Burwood Local Court, but on arraignment on 6 November 2003 before this Court, the prisoner pleaded not guilty to Murder but guilty to Manslaughter, which plea the Crown accepted in full satisfaction of the indictment. He was remanded for sentence until 13 February 2004.

2 The prisoner was arrested on 14 February 2003 and granted conditional bail on that day. He did not apply for bail when submissions on sentence were taken and evidence tendered before me on 13 February 2004, and he has been remanded in custody for sentence. I have taken that into account in fixing the date for commencement of sentence.


Facts

3 The facts are that on the evening of 8 February 2003, the deceased, an employee of the prisoner, had dinner with the prisoner at a restaurant in Beamish Street, Campsie. Also present were the wife of the prisoner, Wnol Yong, his brother and another employee. Some time around the middle of the evening, the entire party left that restaurant and went to a music studio in Campsie.

4 The deceased, Yong and another male arrived at another restaurant in Campsie about 1.20am. The three seated themselves and ordered a bottle of whisky. The unknown male left shortly thereafter. At around 2am the prisoner entered the restaurant, yelling and swearing at Yong. This continued for some little time before the three left the restaurant for Beamish Street, Campsie. Shortly thereafter, the prisoner again commenced yelling at Yong.

5 The prisoner then punched the deceased to the upper body or his head at least three times before the deceased fell to the ground. The deceased stood up again and made his way to a nearby bench where he sat down. The prisoner also sat on the bench for a short while before getting up, and commenced punching the deceased around the upper body or head several more times. As a result of this, the deceased fell to the ground. The deceased stood up again, made his way to a nearby bench where he sat down. The prisoner also sat on the bench and then commenced punching the deceased around the upper body several more times. The deceased got up off the bench, only to then fall face down to the ground, where the prisoner punched him again about five more times.

6 Yong intervened and tried to pull the prisoner away, at which point the prisoner struck her several times to the face. She was heard to remark that her glasses had been broken. Yong and the prisoner then walked off around the corner. By this time the deceased had rolled over onto his back.

7 Il An, a passerby, who spoke Korean, went to the aid of the deceased but could not detect any breathing. At this point the prisoner returned, pulled the deceased into an upright position and said words to the effect of “Let’s go home”. An asked the prisoner who the deceased was and he replied that they worked together. The prisoner then let go of the deceased, allowing him to fall backwards, his head thudding heavily against the concrete. The prisoner was then seen to walk to the other side of the street, get into his four wheel drive and drive off.

8 The deceased was conveyed to Canterbury Hospital, but never regained consciousness and was pronounced dead at 5.44pm on 10 February 2003. The cause of death was traumatic isolated subarachnoid haemorrhage.

9 Police who attended at the scene located a broken pair of spectacles and some prescription medicine identifying Yong’s address in Canterbury. The prisoner was not present when they attended. Yong did not know where he was and, due to her level of intoxication the evening before, had no recollection of events after the party went to the music studio. She had bruising to her face and arms. She however went with police to Canterbury Hospital where she was able to identify the deceased as the employee, Baek, with whom they had been that evening.

10 Later that night the prisoner arrived home and told Yong that the three had indeed been together in Beamish Street, Campsie, in the early hours of 9 February 2003. The prisoner said he had also been drunk and that he was upset after separating from the deceased at the music studio, and Yong had not been at the restaurant where they had agreed to meet. The prisoner said he had argued with both of them as he wanted to go home but they wished to stay out. He explained that he struggled with Yong and the deceased in an effort to get them to the car, and that at one point whilst struggling with Yong he saw the deceased slump forward from the bench he was sitting on and fall to the ground. He said that he then decided to take Yong to the car and return for the deceased, but that when he got back he saw the ambulance, became worried and decided to go home.

11 On 10 February 2003, police saw the prisoner’s vehicle parked in the garage at 11 Redman Street, Canterbury, and on the following day located the shirt the prisoner had been wearing on 9 February 2003. It was in a rubbish bin outside those premises and it had been ripped. Il An and another witness identified the prisoner from photographs. After contact with the police in charge through the prisoner’s solicitors, the prisoner presented himself on the morning of 14 February 2003 at Burwood police station, whereupon he was arrested. The prisoner is a person of good character, having no criminal convictions here or in Korea, his place of birth.

12 Before me, through his counsel Mr Boulten, in the presence of the prisoner, the plea of guilty to Manslaughter was adhered to. It is to be noted that, taking into account the co-operation afforded by the prisoner, there had been a few days before the police were able to locate the prisoner. The prisoner and the prisoner’s wife assisted police in obtaining documents to assist in identification of the prisoner.

13 The prisoner gave evidence before me of his birth in Korea and of having initially visited Australia in 1997, and then, in that year, of bringing his wife and children, now aged fifteen and fourteen, to Australia. The prisoner’s migration visa has now expired, and the wife and children only remain in Australia because of a special visa to permit them to be present while these proceedings are being determined. On termination of these proceedings the prisoner’s family will only be able to remain for approximately four weeks before they must leave for Korea. It had originally been the intention of the whole family to migrate to and live permanently in Australia.

14 The prisoner’s evidence was that the drinking that had occurred prior to the events I have related was because the deceased was due to terminate his work and it had been decided for all to have a meal together. This meal started off, the parties having been drinking whisky in a house beforehand, and the parties went to the initial restaurant where they drank Korean whisky, and then to the music studio where the group drank beer. The prisoner by this time was very much affected by alcohol. The extent of the prisoner’s intoxication was such that he went to sleep at the music studio and found he had been left alone. He said that he had been to various places but did not quite remember which, but that he had been told where he had been by other people later on.

15 The prisoner then described the fight that I have earlier referred to, after he had gone to another place and had more alcohol. He said that he did not have a clear recollection, but when the deceased and the prisoner’s wife came out of a restaurant there was a fight. The prisoner said he did not know what they had been fighting or arguing about. The prisoner said that punches had been exchanged between himself and the deceased.

16 The prisoner’s evidence was that he took his wife home and came back, and that the deceased was lying in the street, and that the prisoner spoke to the deceased and told him to go home. Mr Il An, who I have referred to, told the prisoner to go home and that he, Mr An, would take care of the deceased. The prisoner said he remembered that he had been arguing and had had physical interaction with the prisoner’s wife, and that his shirt had been torn in the altercation. The prisoner admitted in cross-examination punching the deceased when he came out of the karaoke bar and again when they were sitting on the bench.

17 The witness An’s evidence was that he heard the prisoner and another man arguing in Korean, and had observed the deceased being hit around the top part of the body and probably to the deceased’s head, but he had not seen the deceased hit back or try to defend himself. He saw the deceased fall to the ground and stand up and go back to the wooden bench. He observed the prisoner hit the deceased a number of times whilst on the bench, and that the deceased slumped to the ground and fell face down onto the footpath and did not move. An also observed a number of punches to the deceased by the prisoner whilst the deceased was lying on the ground.

18 During this time, An observed the female with the prisoner trying to stop the assault. The prisoner was observed to hit the female around the head. An saw the female and the prisoner walk around the corner, at which time the deceased was not moving and the deceased did not respond to An’s shaking of the deceased’s body. The prisoner then returned and appeared to be trying to wake up the deceased, saying “Let’s go home”, was An’s observation. The deceased was then dropped from the upright position where he was sitting and his head collided with the concrete with a loud thud.

19 The prisoner has expressed remorse and said that he was very sorry towards the person who died, the deceased’s family and indeed the prisoner’s family and everyone involved. The prisoner has said that he has since the event rarely gone out, that he had difficulty sleeping and had recurring thoughts about what had happened. I accept this evidence.

20 The prisoner’s evidence was that he accepts that he will be imprisoned as a result of the commission of the crime and this will mean the effective destruction of the tiling business which he had built up. The prisoner is currently undertaking quite substantial tiling work and, in particular, currently has a job tiling some one hundred and thirty apartments. The prisoner employs a large number of tilers. It may well be however that there are breaches of various laws in relation to that business, but it is likely, in my view, that completion of the work is unlikely without the prisoner’s supervision, and that his business may well collapse. The prisoner accepts that he will on terminating his gaol sentence have to return to Korea, notwithstanding his previous wish to live in Australia with his family.

21 I take into account that inevitably, when assessing sentence, there will only be a limited number of people speaking only Korean within the prison system, and indeed in a particular part of Corrective Services there will be a likelihood of significant deprivation of contact with people with whom he can speak and contact who are Korean speaking. He, being a person of previous good character, may well find those Korean speakers that he does meet are not of a class of people that he would necessarily wish to associate with.

22 Character witnesses were called on behalf of the prisoner, mainly his business associates in tiling, but they attested, and I accept this, as to his good character, his hard work and how well he was respected, how good a leader he was and how tolerant he was with people. A witness, Mr Chae, spoke of the prisoner’s great sorrow for the deceased and his family.

23 The evidence before me was that the cause of death was an intracranial subarachnoid haemorrhage, the deceased dying about forty hours after the altercation. There were relevantly also found bilateral rib fractures. I find beyond reasonable doubt that the death of the deceased occurred through the actions of the prisoner which I have described in the altercation and that the injuries resulted from the blows and actions of the prisoner, and that the subarachnoid haemorrhage was a result of the prisoner’s actions. I also find beyond reasonable doubt that the blows of the prisoner constituted an unlawful and dangerous act. The offence of Manslaughter is thus made out.

24 Taking into account the objective seriousness of the offence and the subjective matters, I now turn to the principles of sentencing and in particular as to the offence of Manslaughter.

25 The many purposes of sentencing include protection of the community, deterrence specifically and generally, rehabilitation or reform, and imposing an appropriate penalty to reflect the severity of the offence as a denunciation of that offence. I have had regard to the assumption of the criminal justice system that penalties operate as a deterrent (see R v Wong; R v Leung [1999] NSWCCA 420; [1999] 48 NSWLR 340).

26 It seems to me unlikely that the prisoner will reoffend and that the matters to be looked at in sentencing must be looked at in light of the prisoner’s favourable subjective circumstances. These principles were enunciated by Street CJ in R v Rushby [1977] 1 NSWLR 594 at 597 which applied the passage from R v Radich [1954] NZLR 86 at 87. There is a need however in such a vicious and violent attack perpetrated by the prisoner, which occurred notwithstanding the consumption of alcohol, of a denunciation by this Court of such conduct leading to the death of the deceased.

27 I have also had regard because of the difficult circumstances of the prisoner in the Corrective Services system, due to cultural and language deprivation, to the need for rehabilitation and the fact that his time will be served absent contact with his family, who will by then have been removed to Korea. Nonetheless the Court must denounce the crime.

28 In relation to the offence of Manslaughter, I have been assisted by a large number of cases of generally similar circumstances placed before me by the learned Crown and Mr Boulten, counsel for the prisoner. It must be remembered that the circumstances giving rise to a Manslaughter conviction are infinitely varied and not much assistance can be gained from other cases or, in particular, from the general statistics on Manslaughter to which I have had regard.

29 The starting point must be the gravity of the objective circumstances of the case (see R v Blacklidge, unreported, NSWCCA, 12 December 1995). I have also particularly considered what was said by Whealy J in R v O’Hare, unreported, NSWSC, 25 July 2003, and R v Grenenger [1999] NSWSC 380, unreported.

30 I have read the medical evidence as to the state of the prisoner and find no evidence of any psychiatric or mental illness. I have had regard also to what has been said by Newman J in R v Wilson [1999] NSWSC 1235, unreported, and Dunford J in R v Risteski [1999] NSWSC 1248, unreported, which cites Blacklidge (supra), as to taking into account deterrence and the community’s denunciation. In that last case a minimum term of three and a half years was imposed with an additional term of two years, taking into account prior custody.

31 The savage attack on the part of the prisoner, affected as it was by considerable ingestion of alcohol, was nonetheless a protracted period of violence which resulted in the death of a human being through no apparent fault of that human being. As I have indicated, in terms of the prisoner’s subjective circumstances, it is clear that the removal of his family, he being a fairly recent migrant to Australia, will cause him great distress and pain. He is now deprived of being an Australian, and of bringing up his family here. He has lost his business and will do his time hard for the cultural and linguistic reasons I have referred to.

32 I have taken into account that he was a person of good character who, on the night of the death of the deceased, had had no premeditation or previous ill will towards the deceased. These matters I have taken into account in terms of the overall penalty but, more importantly, I find that there are special circumstances for reducing the time actually served to below three quarters of the total sentence to be imposed.

33 I should note that I have read with sadness what is put very respectfully by the family of the deceased but, in noting what has been said, I do not consider in terms of other factors the court has to consider that it is appropriate to have regard to the contents of that statement in deciding the sentence to be imposed.


Discount

34 I now turn to the difficult question of the entry of the plea of guilty and the question of discount. Although the prisoner did not come forward for some few days, he nevertheless arranged through his solicitor to surrender himself. He pleaded guilty at the earliest opportunity. I have had regard to the guideline promulgated in R v Thompson; R v Houlton (2000) 49 NSWLR 383, unreported, which dealt with the utilitarian value as being generally between ten and twenty five per cent discount of sentence. It must be remembered however that in this case, I find, in addition to those utilitarian factors, that the prisoner assisted authorities in providing evidence to complete the Crown case, and that he came forward at an early opportunity and assisted police. The prisoner is remorseful, and I find that remorse for his actions on that night genuine.

35 I have referred to the general range of twenty to twenty five per cent discount, but in R v Arnott [2001] NSWCCA 497, unreported, even a discount of twenty per cent was not considered sufficient, although in R v Speechley [2002] NSWCCA 300; (2002) 133 A Crim R 26, a discount of twenty five per cent was considered too large. In that case the Court of Criminal Appeal did not agree with the judge’s finding that the trial would have been lengthy and expensive.

36 In all the circumstances of this case, taking into account the seriousness of the offence and the prisoner’s favourable subjective circumstances, and taking into account the utilitarian value of the plea, the surrender by the prisoner, the assistance provided, and the earliness of the plea, I consider that a plea of greater than twenty five per cent is appropriate and propose to grant a discount of one third, that is, thirty three and one third per cent.

37 Taking into account the authorities that I have referred to and the authorities and statistics on the offence of Manslaughter, which carries a penalty of twenty five years, and the fact that the blow to the skull causing death was clearly unintentional resulting from the prisoner’s inability to judge the consequences of his actions, I consider the starting point for this offence in determining the sentence should be four years. This nonetheless takes into account the severity of the attacks on the deceased. If this is reduced by one third it means a total sentence of thirty two months. I consider that there should be a period of twelve months supervision after serving the custodial sentence, taking into account the subjective matters that I have referred to above, and the difficulties of readjustment to custodial life.


Sentence

38 Would the prisoner please stand. Yong Gap Kwon, on the evidence before me, you are convicted of the offence of Manslaughter. I find, as I have indicated, there are special circumstances to reduce the custodial sentence to below three quarters of the total sentence.

39 I sentence you to a total term of thirty two months to commence from your entering custody on 13 February 2004 to conclude on 12 February 2006, with a non parole period of twenty months, that period to expire on 12 October 2005.

40 I direct that on completion of the non-parole period you be released to parole.


**********

LAST UPDATED: 19/03/2004