Regina v Yun Young Ko [2000] NSWSC 1130

New South Wales Supreme Court

CITATION : Regina v Yun Young Ko [2000] NSWSC 1130 CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S) : SC 70037/2000 HEARING DATE(S) : 20/11/00 JUDGMENT DATE : 12 December 2000

PARTIES : Regina Yun Young Ko JUDGMENT OF : Kirby J

COUNSEL : D Frearson (Crown) Ms L Flannery (Acc) SOLICITORS : David Vautin - DPP (Crown) Narelle Marshall - LAC (Acc) CATCHWORDS : Sentence - Manslaughter - Provocation and substantial impairment LEGISLATION CITED : Crimes (Sentencing Procedure) Act, 1999 - s44(2) Savvas v The Queen (1995) 183 CLR 1 R v Pilley (1991) 56 A Crim R 202 CASES CITED : R v Low (1991) 57 A Crim R 8 R v Blacklidge (unreported, CCA, 12/12/95) R v Scognamiglio (1991) 56 A Crim R 81 DECISION : Ref para 44

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Tuesday 12 December 2000

70037/00 - REGINA v YUN YOUNG KO

JUDGMENT ON SENTENCE

1 HIS HONOUR: On Monday 20 November 2000, Yun Young Ko was indicted for the murder of Shin Woong Ha. She pleaded not guilty to murder, but guilty of manslaughter. The Crown accepted that plea. It did so upon the basis that Ms Ko was suffering from substantial impairment due to an abnormality of mind. 2 It remains for me to determine the facts (in a manner consistent with manslaughter), and to pass sentence. The facts which must be determined are those relevant to the sentencing discretion (Savvas v The Queen (1995) 183 CLR 1). Where the facts are adverse, they must be proved beyond reasonable doubt. Matters in mitigation may be proved on the balance of probabilities (R v Pilley (1991) 56 A Crim R 202, per Finlay J at 203). 3 Here, as mentioned, it was common ground between the Crown and the defence (and the experts retained by each) that, at the time of the offence, Ms Ko was substantially impaired by reason of an abnormality of mind. I will refer to the expert evidence shortly. 4 However, it was said on behalf of Ms Ko that the Crown could not exclude provocation. Were there both provocation and substantial impairment, they would operate together to reduce the objective seriousness of the offence. Lee CJ at CL (with whom McInerney and Sharp JJ agreed) made the following remarks in R v Low (1991) 57 A Crim R 8: (at 19) "Had the element of diminished responsibility not been present at all and had the matter gone forward on the footing that the verdict was a verdict of manslaughter on the ground of provocation, it would be my view that such a sentence would need to be greatly increased." 5 A number of witnesses were called relevant to provocation. It is, therefore, necessary to make findings in respect of their evidence.