R v Won [2012] NSWSC 855

Supreme Court New South Wales

Medium Neutral Citation: R v Won [2012] NSWSC 855 Hearing dates: 18/07/2012 Decision date: 03 August 2012 Before: Fullerton J Decision: Imprisonment for 7 years and 6 months to date from 11 May 2010 comprised of a non-parole period of 5 years expiring on 10 May 2015 and a balance of term of 2 years and 6 months expiring on 10 November 2017. Catchwords: CRIMINAL LAW - sentence - manslaughter - provocation Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Hill v R (1981) 3 A Crim R 397 R v Alexander (1994) 78 A Crim R 141 R v Bolt [2001] NSWCCA 487; 126 A Crim R 284 R v Johnson [2003] NSWCCA 129 Category: Sentence Parties: The Crown Joachim Won (Offender) Representation: Counsel: P Lynch (Crown) W Terracini QC (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid Commission (Offender) File Number(s): 2010/117415

REMARKS ON SENTENCE 1HER HONOUR: On 10 July 2012 the offender was convicted, after trial, of the manslaughter of Hyoung Mo Lee at Pendle Hill on 11 May 2010. The jury acquitted him of the deceased's murder. Although the jury were directed that a conviction of manslaughter by an unlawful and dangerous act was open to them in the event that they were not satisfied that the Crown had proved an intention to kill or inflict grievous bodily harm, I am satisfied that the verdict of manslaughter was returned because the Crown was unable to exclude the reasonable possibility that the offender killed the deceased under provocation after the offender found him having sex with his wife in the bedroom of their home. Counsel did not submit otherwise. 2The offender pleaded guilty to manslaughter when he was indicted before the jury. The Crown did not accept that plea in discharge of the indictment. 3At the sentence hearing the Crown acknowledged that both prior to, and at the time of the committal proceedings, the offender had offered a plea of guilty to manslaughter (on the grounds of provocation) and that, consistent with what the Court has held in R v Johnson [2003] NSWCCA 129, he was entitled to a discount on sentence for that reason. In the circumstances of this case where, in final address, the Crown conceded that the offender had in fact lost his self-control, thereby seeking a verdict of guilty on the basis that the jury would be satisfied that an ordinary person in the position of the offender would not have lost his self-control as to have formed an intention to kill or to inflict grievous bodily harm, I am satisfied a discount of 25 per cent on the sentence should be allowed. 4The deceased died from blood loss within minutes of suffering a knife wound to the front of his upper left arm. It penetrated to the surface of the bone, transecting two arteries, a major vein and a nerve. Five other knife wounds were inflicted to his back, chest and abdomen, none of which would have proved fatal, assuming medical attention was administered. That said, the wound to his abdomen was deep enough for the internal organs to protrude from the wound, and one of the wounds to the chest was deep enough to penetrate the lung, albeit to a minor degree. 5Although the pathologist was unable to assign any order to the infliction of the six stab wounds, the evidence from the offender's wife suggests that the fatal wound was inflicted as the deceased raised his arm to defend himself after being stabbed in the abdomen and falling against a window in the bedroom, and that the balance of the wounds were inflicted in the lounge room after the deceased attempted to escape from the offender's knife attack and after her failed attempts to disarm her husband. 6The offender and his wife were married in 1992. Two children were born in 1993 and 1995. It would seem the marriage was happy for a time but that they progressively became distant from one another, to the extent that they were sleeping apart as at the date of the killing, whilst maintaining the outward semblance of a marriage, largely, it would seem, for the sake of their children. Mrs Won gave evidence that the sexual relationship with her husband had been unsatisfactory, from her perspective, for some time and that she became sexually involved with the deceased in an extramarital affair soon after meeting him in a Korean social club in 2008. The offender met the deceased at the same time and they became friends. Mrs Won said that aside from their poor sexual relationship and strained domestic life the offender was a loving, caring and gentle man who was a good provider for her and her children. 7Mrs Won agreed that she maintained a separate mobile telephone in order that her relationship with the deceased would be maintained undetected and that this was done with the intention of deceiving her husband. She gave evidence that at no time during the affair, or since the killing, did the offender ever tell her that he knew she was having the affair. 8The deceased's wife, on the other hand, became aware of the affair after she discovered explicit photographs on her husband's mobile phone. The deceased and his wife separated on 28 December 2009 after a violent argument in a car park, witnessed by the offender and his wife, when the deceased tried to stop his wife talking with Mrs Won about the photographs. Mrs Lee said the offender helped her up off the ground and that she said to him "You should know why I had to do this". She said that she did not tell the offender what she knew of the illicit affair because she did not want to shame him. She agreed that although in the Korean community extramarital affairs are kept very private, others in the Korean community knew about the affair between Mrs Won and her husband. She said she tried to call the offender a number of times between December and May but he did not return her calls. She believed he wanted to keep his family together. 9Mrs Won said she was embarrassed by the incident in the carpark. She said when the offender asked her what the confrontation was about she deflected his enquires by accusing the deceased's wife of being overly suspicious. 10The affair continued after the deceased's separation from his wife. Mrs Won said in the weeks prior to the killing she persuaded her husband to allow the deceased to paint their house because he was short of money but that the offender was not very happy about it. 11Both counsel advanced submissions concerning the findings of fact which would inform my assessment of the objective seriousness of the offender's conduct accepting that the verdict of the jury determines the characterisation in law of the unlawful killing. In R v Alexander (1994) 78 A Crim R 141, in the context of manslaughter by provocation, Hunt CJ at CL identified three matters which the case law suggested had (to that date at least) been taken into account on sentence: (1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence, (2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence, and (3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence. 12His Honour went on to observe that the second feature is in a practical sense no more than some evidence by which the degree of provocation might be judged. 13In R v Bolt [2001] NSWCCA 487; 126 A Crim R 284 Dowd J at [34] observed that there are logical, practical and legal inconsistencies in the consideration to be given to the features identified in Alexander. Although his Honour recognised that as a matter of logic the degree of provocation (if high) must reduce the objective gravity of the offence and that the degree of violence employed (if great) would increase the objective gravity, there are cases where the degree of provocation is not great (the view I take of the present case) but the degree of violence or aggression involved in the killing is considerable (also my view of the present case), and cases where the converse also applies. 14I do not understand that sentencing in cases of manslaughter committed under provocation requires "a tick box approach" to those matters identified by Hunt CJ at CL in Alexander. What is essential is that all the features of the offending are taken into account in assessing the objective seriousness that has accompanied the unlawful taking of a human life. 15In the present case, the objective features of the attack on the deceased which resulted in his death, while not of the same magnitude as the Court was considering in Bolt, nonetheless amounted to the infliction of serious violence accompanied by what I am satisfied was an intention to kill the deceased. The offender's attack with a kitchen knife with a blade of 18 centimetres in length and about 4 centimetres wide at the hilt, was on any view sustained and persistent. He first stabbed the deceased at least twice in the bedroom and then, as the deceased attempted to flee he was stabbed repeatedly in the lounge room where he bled to death. It was at this time that the offender said words to the effect "I'll kill him" or "He must die" and said, somewhat rhetorically, "Shall I kill you too" because of Mrs Won's attempts to stop him. 16While on one view the wound to the deceased's arm was an unusual site for a fatal wound, the fact that it was inflicted after the deceased sustained a serious stab wound to the abdomen satisfies me that it was sustained when the knife was being aimed at the deceased's upper body, and under force, and that it was only deflected as the deceased raised his arm. Although there is no evidence of what the offender said at the time of inflicting that wound, what he said as the attack continued in the lounge room persuades me that his intention throughout the sustained attack on the deceased was not just to inflict really serious injury, but to kill him. 17There is an additional feature of the offending the subject of conflict on the evidence which needs to be resolved by me in order to make a final assessment of the gravity of the deceased's provocative conduct. 18The offender gave evidence that he was provoked into killing the deceased - a man he knew and with whom he claimed to have had a close friendship - when, after becoming ill at work, and on coming home to collect his wallet containing his Medicare card and credit card en route to the doctor, he found the deceased having sex with his wife. He claimed he had no reason to suspect that the deceased and his wife were having an affair. 19The competing factual scenario contended for by the Crown at trial and a finding I would need to make beyond reasonable doubt for sentencing purposes, was that the offender left work before 9am because of his suspicions about his wife's fidelity and the deceased's loyalty to him as a friend, and not because of illness or the need to go home and collect his wallet before seeing a doctor. The Crown submitted that I would be satisfied that the offender parked his car around the corner from his house so as to approach his home without warning to see whether his suspicions were well founded and not because of fear of falling debris damaging his car were he to park it at the front of his house. The Crown also submitted that logic and common sense would dictate that were he to drive into the driveway of his house he would have avoided the risk of damage entirely and the more so when, on his own evidence, he was only stopping at his house to collect his wallet before going directly to the doctor. The Crown also submitted that I would be satisfied that when the offender found his wife's car was in the garage and concluded that she was not at work as she was scheduled to be, and that the deceased was not painting the outside of the house as he was expected to be, he let himself into the house, took a knife from the kitchen and headed to the bedroom, perhaps to threaten to harm the deceased (or his wife, or both), or perhaps with no crystallised purpose of any kind other than to present the knife in a show of strength. 20Even on this scenario it should be emphasised that it was not the Crown case at trial that the offender acted with premeditation or that he armed himself with the knife with the intention of harming the deceased (or his wife), or at that time intending to kill the deceased. To the contrary, the Crown conceded at trial (a concession maintained on sentence), that the offender lost control whilst armed with the knife and he formed the intention of killing the deceased only when he was confronted with the stark reality of the sexual relationship between his friend and his wife, and that it was then that he lost his ability to control his reactions or response and used the knife with murderous intent. 21It is not necessary to refer to the evidence in any great detail to resolve this issue. The evidence at trial relied upon by the Crown came from the offender's wife and a neighbour who saw the offender park his car around the corner and retrieve it later and the arresting police to whom the offender made full admissions to the killing of the deceased. 22Mrs Won gave evidence that she was having sex in her son's bedroom when the deceased said he heard a click (she said she did not hear it). She said she then noticed a shadow in the corridor so she pushed the deceased away from her. She said that the deceased was standing next to the bedroom door when she saw her husband come in through the door. She said she did not see anything he was holding in his hand then all of a sudden he started stabbing the deceased. 23The offender also gave evidence. He told police that he came home from work, discovered the deceased and his wife having sex; that they did not notice him at the bedroom door; that he went and got a knife from the kitchen and he stabbed the deceased in the bedroom and then followed him and stabbed him again. He then said he put the knife in the washing basin and went to the kitchen and had a drink of wine. He said the deceased was a family friend and he did not want him to die. 24In his evidence at trial the offender said that he came home from work because of illness and that he parked around the corner partly out of habit and to avoid damage to his car and that he always removed his shoes on entering the house. The offender gave evidence, supported by evidence from other Korean witnesses called in his case, that removing footwear is a Korean custom that is adhered to irrespective of the period of time that a person is inside the home or their purpose in entering. His work colleagues supported his evidence that he left work that morning because he claimed he was ill. They also gave evidence of his good character which was not in dispute. The character evidence was relied upon to support the truth of his account that he left work because of illness. 25In my view, the fact that the offender did not announce his arrival when he entered the house, or call out to see where his wife or the deceased might be inside the house, perhaps engaged in some innocent activity weighs against accepting his account as truthful. Of less weight was the fact that he removed his footwear on entering despite the fact that on his evidence he was only intending to collect his wallet from the shelving in the hall and go directly to the doctor. It is, however, not insignificant as I see it that the offender had his wallet in his pocket when he was arrested by police. There was no evidence as to whether the wallet also held the cards the offender claimed to be intent on retrieving for his doctor's appointment. 26The offender also gave evidence that he retrieved his wallet from the shelving in the hallway after killing the deceased. He also gave evidence that again after regaining his self-control and before the arrival of the police he collected the car and parked it in the garage. He said he did this also having accepted that he would be taken into custody for killing the deceased. 27In so far as the question when the offender got the knife, Mrs Won' s evidence to the effect that he must have had it when she saw him at the doorway of the bedroom satisfies me that, contrary to the offender's evidence, he did not leave and return with the knife before launching his attack on the deceased but had the knife with him as he approached the bedroom. 28In short, I do not consider the offender's account of his actions on the day of the killing as a reasonably possible version of events in all respects. I expressly reject his evidence that he had no suspicions of his wife's infidelity or the deceased's disloyalty to him. Although he told workmates that he was ill and needed to attend a doctor, not only did he give inconsistent accounts of his medical complaints but his conduct thereafter is, in my view, inconsistent with any medical urgency and wholly consistent with what the Crown contended were his true motivations, namely seeking to see whether his suspicions as to his wife's infidelity were well founded and, if so, to expose her. I place particular weight on the offender parking the car distant from his house and then entering soundlessly, arming himself with the knife in the process. This satisfies me beyond reasonable doubt that he did suspect his wife's infidelity and that the deceased was her lover, and that while he had no premeditated plan to avenge his position as her husband with violence, he did plan to expose them and that when he was confronted by their sexual activity he lost his self-control and killed him. 29On the basis of those findings, his loss of self-control and the formation of his intention to kill the deceased must be regarded as immediate and relatively short lived, thereby explaining the arrangements he made for his family by offering $3000 in cash in his wallet to his wife and retrieving his car before the police arrived coupled with his unqualified admissions to police at the house and his expressed remorse at the time. Whilst I am obliged to accept that the offender did lose his capacity to exercise self-control I do not regard the degree of provocation presented by the deceased engaged as he was in sexual activity with the offender's wife as grave even allowing for some build up of suspicion due to the unhappy state of his marriage and his strained marital relations. There is no evidence to suggest any taunting by the deceased or any overt slight at the offender's sexual prowess or masculinity. However confronting and upsetting proof of infidelity might prove to be when it is exposed, where a marriage or other relationship is unhappy (as I am satisfied this marriage was), regrettable though it might be, a lack of fidelity is not uncommon. While the identity of his wife's lover as a person who he regarded as a friend added to the offender's general upset, I do not regard this as adding materially to the degree or extent of provocation for sentencing purposes. 30In summary, I am satisfied that the death of the deceased was accompanied by an intention to kill and was the result of a sustained and determined attack delivered with considerable violence. Although the degree of provocation was obviously sufficient for the jury to be satisfied that the offender lost his self-control (albeit only for a short time), and for them to be satisfied that the Crown had not removed the reasonable possibility that an ordinary person in the offender's position may have lost self-control, I am of the view that for sentencing purposes the degree of provocation was not such as to reduce the objective gravity of the offending to any significant degree. I am also of the view that the degree of violence reflects the need for the sentence to denounce the offender's conduct that resulted in a loss of life and to provide some measure of general deterrence. 31That is not to say that this case does not engender a degree of sympathy for the offender. For my part, I recognise the weight of moral responsibility he will bear for the death of the deceased and the permanent loss of family life that he has suffered as a consequence. It is in cases such as these that the remarks of Street CJ in Hill v R (1981) 3 A Crim R 397 at 402, where he described sympathy for an offender as a manifestation of a humanitarian tendency that must be attended by the utmost caution, have particular resonance. He went on to say: ...It can be seen to be constantly written in the decision of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.