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Oh Hyunwook v R

Oh Hyunwook v R

Case [2010] NSWCCA 148 19 July 2010

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New South Wales
Court of Criminal Appeal

CITATION: OH Hyunwook v R [2010] NSWCCA 148

HEARING DATE(S): 5/7/10

JUDGMENT DATE:
19 July 2010

JUDGMENT OF: Beazley JA at 1; Kirby J at 2; Johnson J at 53

DECISION: 1. Leave to appeal granted.
2. The appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - convicted of reckless wounding - relevance of restitution to remorse - offender living in shared accommodation with victim - stabbing took place within apartment - whether matter of aggravation s 21A(2)(eb) - no reference to standard non parole period or nature of offending in relation to mid range offence - error - whether sentence excessive - s 6(3) Criminal Appeal Act - sustained violence and stabbing - sentence less severe not warranted.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Butters v The Queen [2010] NSWCCA 1
Collon v R [2009] NSWCCA 187
R v McEvoy [2010] NSWCCA 110
Phan v R [2010] NSWCCA 8
Corby v R [2010] NSWCCA 146
R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704

PARTIES: Hyunwook OH (Appl)
Regina (Resp/Crown)

FILE NUMBER(S): CCA 2009/73613

COUNSEL: M Thangaraj (Appl)
P A Leask (Resp/Crown)

SOLICITORS: Nyman Gibson Stewart (Appl)
S Kavanagh (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/73613

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 19/2/10

CCA 2009/73613

BEAZLEY JA
KIRBY J
JOHNSON J
Monday 19 July 2010

Hyunwook OH v REGINA

Judgment

1 BEAZLEY JA: I agree with Kirby J.

2 KIRBY J: Hyunwook Oh (the applicant) seeks leave to appeal against a sentence imposed by Knox DCJ on 19 February 2010. He pleaded guilty to having, on 13 May 2009, recklessly wounded the victim, an offence under s 35(4) of the Crimes Act 1900. The maximum penalty in respect of that offence is 7 years imprisonment. Under the Crimes (Sentencing Procedure) Act 1999, a standard non parole period of 3 years imprisonment is specified. He was sentenced to 1 1/2 years imprisonment (13.5.09 to 12.11.10), with an additional term of 1 year (expiring on 11.11.11).

3 Before going to the Notice of Appeal, I should describe the incident and the background of the applicant.

The incident.

4 Mr Oh was born in South Korea in March 1981. At the time of the incident he was 28 years old. He arrived in Australia in November 2007 and in May 2009 was living in an apartment in Sussex Street in the city. There were ten others living in the same apartment.

5 The victim also came from South Korea. He was about four years younger. He arrived in Sydney a day or so before the incident. He took up residence in the same apartment.

6 The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oh Hyunwook v R

Details

AGLC: Oh Hyunwook v R [2010] NSWCCA 148
Case: [2010] NSWCCA 148
Decision Date: 19 July 2010

CaseChat Overview and Summary

In the case of Oh Hyunwook v R, the appellant, Oh Hyunwook, was convicted of reckless wounding and subsequently appealed against the sentence imposed. The matter was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed by the lower court was excessive, considering the appellant's remorse and the fact that he lived in shared accommodation with the victim, which the trial judge deemed an aggravating factor.

The legal issues that the court was required to decide involved the relevance of restitution to the concept of remorse, and whether the stabbing incident, which took place within the apartment, constituted an aggravating factor under section 21A(2)(eb) of the relevant Act. Additionally, the court needed to assess whether the absence of a reference to the standard non-parole period or the nature of the offence in relation to a mid-range offence constituted an error. Finally, the court had to determine whether the sentence imposed was excessive under section 6(3) of the Criminal Appeal Act.

The court found that the appellant's remorse was genuine, and while the stabbing took place within the shared accommodation, this factor did not necessarily aggravate the offence. The court also concluded that the absence of a reference to the standard non-parole period or the nature of the offence in relation to a mid-range offence constituted an error. However, the court held that the sentence was not excessive, given the sustained violence and the stabbing. The court found that a less severe sentence was not warranted in this case.

Orders