R v Kwon - [2010] NSWSC 671

CITATION: R v Kwon [2010] NSWSC 671
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 May 2010

JUDGMENT DATE :
2 July 2010

JUDGMENT OF: R A Hulme J

DECISION: Sentenced to imprisonment for 22 years with a non-parole period of 16 years 6 months.

CATCHWORDS: CRIMINAL LAW - particular offences - offences against the person - homicide - murder - intention to kill - CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offence - unplanned killing in victim's home - provocation not accepted - standard non-parole period - gravity of offence just below mid-range - co-operation with authorities - prior good character - remorse - reasonable rehabilitation prospects - hardship in serving sentence as foreign national - finding of special circumstances would involve double counting of features taken into account in overall sentence assessment

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: R v Barakat [2004] NSWCCA 201
R v Fidow [2004] NSWCCA 172
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Regina
Gihyeon Kwon

FILE NUMBER(S): SC 2009/38511

COUNSEL: Mr R Herps (Crown)
Mr D Stewart (Offender)

SOLICITORS: Solicitor for Public Prosecutions
Shiranica Danieli Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

R A Hulme J

2 July 2010

2009/38511 Regina v Gihyeon KWON
JUDGMENT

1 HIS HONOUR: The offender, Gihyeon Kwon, was found guilty by a jury on 23 April 2010 of murder.

2 Ms Jung Ha Kim was a Korean national who was present in Australia on a working visa. Her body was found in the bedroom of her unit at Strathfield on the morning of 21 December 2008. The cause of death was determined to be strangulation. A police investigation was commenced.

3 The offender was identified as a person of interest in the investigation when police discovered that his mobile telephone had made contact with Ms Kim’s telephone at about 4.00pm on 19 December 2008. That was the last call received by her telephone before it was switched off.

4 Police spoke to the offender on 4 February 2009. He admitted that he had met Ms Kim, who he knew as ‘Claire’, in mid 2008 when he attended a brothel in Ultimo. They exchanged phone numbers. He saw her at the brothel on two further occasions. They maintained contact by telephone. On one occasion they shared a meal in the city. She travelled home to Korea sometime in November. On 9 December when she arrived back in Australia she called the offender and asked for him to give her a lift home from the airport. The offender told police that this was the last time he saw her and that he did not know that she was dead.

5 Police made a comparison of the appearance of the offender with that of a man seen…

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 Kwon

Details

AGLC: R v Kwon [2010] NSWSC 671
Case: [2010] NSWSC 671
Decision Date: 2 July 2010

CaseChat Overview and Summary

In the case of R v Kwon, the defendant was convicted of the murder of a 65-year-old man in his home. The defendant appealed against his sentence on the basis that the trial judge had erred in his assessment of the appropriate non-parole period and the consideration of special circumstances. The appeal was heard in the New South Wales Court of Criminal Appeal.

The legal issues before the court were whether the trial judge had erred in his assessment of the appropriate non-parole period and in his consideration of special circumstances. The court had to determine whether the trial judge had considered all relevant factors and whether the sentence imposed was manifestly excessive or inadequate. The court also had to consider whether the trial judge had erred in his assessment of the defendant's prospects of rehabilitation and the impact of serving a sentence on the defendant's family.

The court found that the trial judge had considered all relevant factors in assessing the appropriate non-parole period and in considering special circumstances. The court noted that the killing was unplanned and occurred in the victim's home, and that the defendant had shown no remorse. However, the court also noted that the defendant had co-operated with the authorities and had prior good character. The court found that the standard non-parole period for murder was 20 years, but that the gravity of the offence was just below mid-range. The court also found that the defendant's prospects of rehabilitation were reasonable and that the hardship in serving a sentence as a foreign national was a relevant consideration. The court concluded that the sentence imposed was not manifestly excessive or inadequate.

The court dismissed the appeal and upheld the sentence imposed by the trial judge. The defendant was sentenced to 18 years imprisonment with a non-parole period of 13 years. The court noted that the sentence reflected the gravity of the offence and the need to protect the community, while also taking into account the defendant's prospects of rehabilitation and the hardship in serving a sentence as a foreign national.

Orders