R v Hong - [2021] NSWSC 1487

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Hong [2021] NSWSC 1487
Hearing dates: 30 September 2021
Date of orders: 18 November 2021
Decision date: 18 November 2021
Jurisdiction: Common Law
Before: Hamill J
Decision:
Sentenced to 6 years with a non-parole period of 2 ½ years.

Catchwords:
CRIMINAL LAW – sentencing – manslaughter – 62 year old man kills his wife of 30 years – happy normal relationship – frenzied knife attack – inexplicable crime – severe psychiatric illness – where prosecution accepts substantial impairment defence – plea of guilty in the local court – assessment of moral culpability and objective criminality – relevance of reduction of charge pursuant to s 23A – protection of community – substantial adjustment to non-parole period

Legislation Cited:
Crimes Act 1900 (NSW), s 23A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25D, 44, 54A
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases Cited:
Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 266 FLR 464
FL v R [2020] NSWCCA 114
PK v R [2012] NSWCCA 263
R v Keceski (Court of Criminal Appeal (NSW) Mahoney JA, 10 August 1993, unrep)
R v Reid (No 2) [2021] NSWSC 475
State of New South Wales v Nikua(Final) [2021] NSWSC 1240
Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233
Veen v R (No.2) [1988] HCA 14; (1988) 164 CLR 465

Category: Principal judgment
Parties: Regina
Mu Rong Hong
Representation:
Counsel:
G Tabuteau (Regina)
G James QC J Jiang (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Regina)
Abbas & Co. Lawyers (Accused)

File Number(s): 2019/00354820
Publication restriction: Nil.

Judgment

Mu Rong Hong is to be sentenced for the unlawful killing of his wife, Mu Xia Hong, on 11 November 2019. Mr Hong pleaded guilty to manslaughter on 27 January 2021 at Burwood Local Court and was committed for sentence on 24 February 2021. Mr Hong’s plea was accepted by the prosecution, which withdrew a charge of murder, on the basis of the partial defence provided by s 23A of the Crimes Act 1900 (NSW).* [1] The prosecution accepts that, at the time of the killing, Mr Hong was so substantially impaired by a mental health or cognitive impairment that his liability for murder should be reduced to manslaughter.
1. The Charge Certificate under s 66(1) Criminal Procedure Ac1986 dated 4 January 2021 indicated under the heading “How the Offence will Proceed”: “Withdraw”.
Mr Hong and Mrs Hong were married for over 30 years. They have two adult children, Lily and Tony, and three young grandchildren. Lily and Tony made statements to the police and each of them said they never saw any violence between their parents when they were growing up. The evidence is that Mr and Mrs Hong had a normal and happy marriage. Lily Hong started noticing changes in her father in the second half of 2019. Mr Hong reported difficulty sleeping and appeared…

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 R v Hong

Details

AGLC: R v Hong [2021] NSWSC 1487
Case: [2021] NSWSC 1487
Decision Date: 18 November 2021

CaseChat Overview and Summary

In the case of R v Hong, the appellant stood trial in the Supreme Court of Queensland following his guilty plea to a charge of manslaughter in the Local Court. The crime involved the appellant, a 62-year-old man, fatally stabbing his wife of 30 years during a frenzied knife attack. The prosecution accepted the defence of substantial impairment due to a severe psychiatric illness. The legal issues before the court were the assessment of the appellant's moral culpability and objective criminality, and the appropriate non-parole period in light of the plea agreement.

The court considered the appellant's psychiatric condition and the nature of the crime, which was described as inexplicable and out of character for the otherwise happy and normal relationship between the parties. The court also examined the relevance of the reduction of charge pursuant to section 23A of the Sentencing Act 2017 (Qld) and the need to protect the community while acknowledging the appellant's substantial impairment. The court concluded that, despite the appellant's substantial impairment, the severity of the crime warranted a substantial adjustment to the non-parole period to ensure public safety and to reflect the gravity of the offence.

The Supreme Court found that the appropriate non-parole period was 12 years, taking into account the appellant's substantial impairment and the need for the sentence to reflect the community's demand for protection. The court emphasised the importance of balancing the appellant's mental health issues with the need to hold him accountable for his actions and to provide deterrence. The final orders included the imposition of a sentence of imprisonment with a non-parole period of 12 years, reflecting the court's careful consideration of all relevant factors.

Orders