R v KWON [2004] NSWCCA 456

New South Wales Court of Criminal Appeal

CITATION : R v KWON [2004] NSWCCA 456 HEARING DATE(S) : 21 May 2004 JUDGMENT DATE : 16 December 2004

JUDGMENT OF : Tobias JA at 1; Hulme J at 2; Adams J at 26 DECISION : Crown appeal dismissed

CATCHWORDS : Manslaughter - Sentence - Crown appeal - Deportation and loss of business may be punishment PARTIES : Regina Yong Gap KWON FILE NUMBER(S) : CCA 60096/04 COUNSEL : Crown: Ms E Wilkins Respondent: Mr H Dhanji SOLICITORS : Crown: S Kavanagh Respondent: S O'Connor

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70062/03 FILE NUMBER(S) : LOWER COURT Dowd J JUDICIAL OFFICER :

- 20 - IN THE COURT OF CRIMINAL APPEAL 60096/04

TOBIAS JA HULME J ADAMS J

Thursday, 16 December 2004 R v Yong Gap KWON Judgment 1 TOBIAS JA: I agree with Hulme J. 2 HULME J: In this matter I have had the advantage of reading the reasons for Judgment of Adams J and, accordingly, I can be brief. 3 It is clear that the Respondent to the appeal engaged in an attack on the deceased which, if not "savage" as Dowd J described it, was at least persistent and aggressive and without, it would appear, any provocation. During the course of the attack blows were struck to the deceased's upper body or head on a number of occasions. While the deceased was on the ground, the Respondent punched him again a number of times including to the area of his back. 4 During the course of the attack the deceased fell to the ground on one occasion face down. At one stage when the deceased was lying on the concrete pavement the Respondent pulled him up to a sitting position saying "let's go home" and when the deceased apparently did not respond allowed him to fall backwards, his head thudding heavily against the concrete. 5 Although external examination of the scalp, face, other structures of the head and neck during post mortem showed no injuries, dissection of the head revealed bruising in the right occipital region of the scalp and in the left occipito-temporal region. There were nine or so minor abrasions to the upper body, two on the right arm and three minor injuries to the legs. The eighth rib on the right side of the deceased's back and the sixth rib on the left front were also found to be broken. The cause of death was a massive basilar subarachnoid haemorrhage. 6 In evidence the Respondent acknowledged that he participated in martial arts while in the Korean army. His plea carries the implication that included in his attack on the deceased was at least one unlawful and dangerous act. 7 The deceased was a tiler and obviously a number of the minor injuries seen on post-mortem might have been attributable to events other than the fight with the deceased. As the trial judge did, I would draw the conclusion that the broken ribs were probably due to the Respondent's attack. On post-mortem they were found to be accompanied by a moderate amount of haemorrhaging into surrounding tissue and the coincidence between their location in the sense of the upper body and the fact that the Respondent administered blows to that area seems to me sufficient to merit the inference his Honour drew. Furthermore, that finding is only of an incidental nature as one bearing on a conclusion as to the nature of the attack or the cause of death and in those circumstances not one which, in my view, requires proof beyond reasonable doubt. While there are clear statements that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt" – see e.g. R v Olbrich (1999) 199 CLR 270 at [27], there is no reason to think that such statements apply to every primary or incidental fact taken into account in arriving at a conclusion as to the existence of an aggravating feature. On issues going to the guilt of an accused, the lower standard for subsidiary facts applies – see Shepherd v R (1990) 170 CLR 573; Chamberlain v R (No 2) (1984) 153 CLR 521 - and logic indicates that no higher requirement should exist in the case of subsidiary facts relevant in sentencing. See also R v Khouzame [2000] NSWCCA 505 at [30]. 8 Undoubtedly one must recognise that the relative lack of more serious external wounds to the deceased argues in favour of the view that, whether due to the Respondent's inebriation or otherwise, the attack may have been less severe than some of the evidence would suggest. Be that as it may, the fact remains that in the course of persistent and repeated aggression, including aggression directed to a man already on the ground, the Respondent, by inflicting at least one unlawful and dangerous blow, caused the deceased's death in circumstances where there was no excuse, or even a reasonable explanation, for his conduct. 9 Dowd J found that the Respondent was of good character, a hard worker and respected among his business associates, remorseful and would be unlikely to offend again. The Crown conceded the first of these matters, subject to the fact that the Respondent had apparently built up a substantial tiling business – he had a contract to tile 130 apartments - by employing a number of illegal immigrants who he paid in cash. Six of his employees were arrested on one occasion. Remorse for what had occurred there may have been but it is also relevant to bear in mind that during the sentencing proceedings, the Respondent maintained that it had been a two-way fight – a proposition quite at odds with the Crown Case Statement and his Honour's findings as to what had occurred. 10 In the body of his remarks, Dowd J also said that he "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." Apart from the offence itself, there was no evidence that the Respondent had any need for rehabilitation and, as has been said, Dowd J had in any event found that the Respondent was unlikely to reoffend. 11 His Honour took as his starting point for the sentence he ultimately imposed on the Respondent, imprisonment for 4 years. But for 2 matters I regard such a period as manifestly inadequate and giving insufficient recognition, as the courts have said many times must occur, to the dominating feature that another human being has been killed – R v Blacklidge (Unreported, CCA, 12 December 1995); R v McDonald (Unreported, CCA, 12 December 1995). 12 I should say that in arriving at the conclusion expressed in the preceding paragraph, I have had regard, apart from my own experience in this Court, to a substantial number of cases to which the Crown referred the Court, albeit recognising that there is such a variety of circumstances in which manslaughter offences are committed, that other cases can be at best a very rough guide. The Crown also submitted that, although its appeal did not depend on the Court doing so, it was open to the Court to find that sentences at the lower end of the spectrum for manslaughter have generally been manifestly inadequate. I have not found it necessary to embark on that issue in determining this appeal. 13 One of the factors to which I refer as justifying the period of 4 years arises from the fact that the presence of the Respondent and his family in Australia was pursuant to a visa that allowed temporary residence. He hoped to settle in Australia but the result of his offence is that his family have had to leave, and on completion of the custodial portion of his sentence, he will also have to leave Australia. The second factor concerns the consequence of his custodial sentence. He has lost the tiling business which he had established and which was, it would seem, an asset of significant value. At the time of the offence he was tiling a 130 unit development for Meriton Apartments. 14 These two matters are not insubstantial and one may fairly say, in practical terms, punishing consequences of his offending. I would regard an opportunity for someone in the situation of the Respondent of permanently settling in Australia with his family as something of real value to him. I should perhaps add that, while I have mentioned what has happened to the Respondent's family, I do not regard the hardship they suffer from not being allowed to settle here as falling within the highly exceptional circumstances where hardship to an offender's family can properly be taken into account in mitigation of his sentence – Edwards (1996) 90 A Crim R 510 at 516; R v Byrne (Unreported, CCA, 5 August 1998). 15 In light of these losses, the conclusion at which I have arrived is that his Honour's 4 years starting point, while lenient, was not manifestly inadequate. 16 I agree with Adams J that the discount his Honour allowed for the Respondent's plea and what was said to be assistance to the authorities of 33 1/3% was unjustifiably generous. The assistance was little, if anything, more than reversing his own actions in absconding and taking possession of some of the deceased's assets after the latter's death. Furthermore, some proportion has to be kept. If, as Dowd J thought, 4 years imprisonment was an appropriate reflection of the Respondent's offending in causing death, it strikes me as completely out of proportion to suggest that a reduction of 1 year and 4 months is an appropriate reflection of pleading guilty and the Respondent's "assistance". 17 Nor was the plea made at an early stage. It occurred after one adjournment of an arraignment hearing in this Court and after the Respondent was indicted for murder. It avoided a 2 to 3 week hearing so while it had undoubted utilitarian value, that utilitarian value was not particularly large. The appropriate range of discount for the plea was of the order of 15%. Applying this discount to a starting point of 4 years, the result, in round figures, is 40 months. 18 The custodial portion of the Respondent's sentence was then further reduced in consequence of a finding by his Honour that "there should be a period of 12 months supervision after serving the custodial sentence, taking into account the subjective matters that I have referred to above, and the difficulties of re-adjustment to (sic) custodial life" and, implicitly, that these factors amounted to "special circumstances". 19 There was no evidence to suggest that the Respondent needed or would benefit from an extended period on parole or would have any more difficulties in adjusting to non-custodial life than the usual. Thus I regard his Honour's reasons for reducing the custodial portion of the Respondent's sentence as also affected by error. In addition, the Respondent's subjective matters had been taken into account in the fixing of the head sentence. Of course in the fixing of a non-parole period such factors may be taken into account again – Bugmy v R (1990) 169 CLR 525 at 531, but courts must be astute to ensure that there is no unjustifiable double counting. Furthermore, to justify a departure from the statutory proportions, the legislature requires that the circumstances be such as to fall within the description "special" – Crimes (Sentencing Procedure) Act s44. Here, apart from two matters, there was nothing about the Respondent's subjective or the other circumstances which argued for a finding of "special circumstances". 20 The two matters to which I refer are that this was the Respondent's first time in custody and that his knowledge of English was limited. On the other hand the Respondent has been in Australia since 1997 and he gave evidence that he could speak enough English to have negotiated all the business he engaged in for builders and to hold a small conversation in English and otherwise just used simple English like talking about the weather. 21 In combination, I would regard these matters as both constituting special circumstances and arguing for some reduction in the non-parole period and corresponding increase in the period of the Respondent's sentence when he is eligible for parole. However it must be borne in mind that his Honour had also taken the second of these matters into account in determining the period of 4 years. In the circumstances of this case, this fact inspired me to give this second factor limited weight on the issue of special circumstances and the determination of the non-parole period. Approaching the matter in accordance with normal sentencing principles, recognising that in this case personal deterrence, rehabilitation and protection of the community have little part to play, but general deterrence and retribution are still required to be given weight, I do not think it possible to justify a non-parole period of less than 65% of the overall sentence – i.e. 26 months. Indeed there is much to be said for the view that that is too light for killing another human being in the course of a persistent, aggressive and unprovoked physical attack. 22 Certainly I am satisfied that at first instance no lower sentence than a non-parole period of 26 months and parole period of 14 months was appropriate. 23 What should this Court do? The Court has a discretion in the case of any Crown appeal not to interfere even where it concludes that error has occurred either in the sentence imposed or otherwise at first instance and the authorities indicate that because of the double jeopardy which arises in such cases, the Court should hesitate before it interferes. 24 Although my mind has vacillated on the topic, ultimately the conclusion at which I have arrived is that the Court should exercise its discretion not to allow the Crown appeal. I am much influenced in that conclusion by the view that this event was an aberration in what seems to have been an otherwise very worthwhile life. 25 Accordingly, the appeal should be dismissed. 26 ADAMS J: This is an appeal by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act 1912 against the sentence imposed in the Supreme Court on 27 February 2004 upon a conviction of manslaughter committed on 9 February 2003. The respondent was sentenced to a term of thirty-two months' imprisonment commencing 13 February 2004 with a non-parole period of twenty months expiring on 12 October 2005. The Notice of Appeal was filed in the Court of Criminal Appeal on 5 March 2004 and served on the respondent on the following day.