R v Kwon - [2004] NSWSC 146

CITATION: R v Kwon [2004] NSWSC 146

HEARING DATE(S): 13 February 2004

JUDGMENT DATE:
27 February 2004

JUDGMENT OF: Dowd J at 1

DECISION:

CATCHWORDS: Manslaughter - Plea of Guilty - Sentencing - Extent of Discount - Reduction of Non-Parole Period

CASES CITED: R v Wong; R v Leung [1999] 48 NSWLR 340
R v Rushby [1977] 1 NSWLR 594 at 597
R v Radich [1954] NZLR 86
R v Blacklidge, unreported, NSWCCA, 12 December 1995
R v Grenenger [1999] NSWSC 380
R v Wilson [1999] NSWSC 1235
R v Risteski [1999] NSWSC 1248
R v Thompson; R v Houlton (2000) 49 NSWLR 383
R v Arnott [2001] NSWCCA 497
R v Speechley (2002) 133 A Crim R 26

PARTIES :
Regina
Yong Gap Kwon

FILE NUMBER(S): SC 70062/03

COUNSEL: (Crown) W. Robinson QC
(Prisoner) P. Boulten

SOLICITORS: (Crown) D. Kelly
(Prisoner) V. Murphy

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Dowd J

Friday 27 February 2004

070062/03 - REGINA v YONG GAP KWON

SENTENCE

1 HIS HONOUR: Yong Gap Kwon stands for sentence today having entered a plea of guilty to Manslaughter. The prisoner was originally charged with murder at Burwood Local Court, but on arraignment on 6 November 2003 before this Court, the prisoner pleaded not guilty to Murder but guilty to Manslaughter, which plea the Crown accepted in full satisfaction of the indictment. He was remanded for sentence until 13 February 2004.

2 The prisoner was arrested on 14 February 2003 and granted conditional bail on that day. He did not apply for bail when submissions on sentence were taken and evidence tendered before me on 13 February 2004, and he has been remanded in custody for sentence. I have taken that into account in fixing the date for commencement of sentence.

Facts

3 The facts are that on the evening of 8 February 2003, the deceased, an employee of the prisoner, had dinner with the prisoner at a restaurant in Beamish Street, Campsie. Also present were the wife of the prisoner, Wnol Yong, his brother and another employee. Some time around the middle of the evening, the entire party left that restaurant and went to a music studio in Campsie.

4 The deceased, Yong and another male arrived at another restaurant in Campsie about 1.20am. The three seated themselves and ordered a bottle of whisky. The unknown male left shortly thereafter. At around 2am the prisoner entered the restaurant, yelling and swearing at Yong. This continued for some little time before the three left the restaurant for Beamish Street, Campsie. Shortly thereafter, the prisoner again commenced yelling at Yong.

5 The prisoner then punched the deceased to the upper body or his head at least three times before the deceased fell to the ground. The deceased stood up again and made his way to a nearby bench where he sat down. The prisoner also sat on the bench for a short while before getting up, and commenced punching 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 R v Kwon

Details

AGLC: R v Kwon [2004] NSWSC 146
Case: [2004] NSWSC 146
Decision Date: 27 February 2004

CaseChat Overview and Summary

The case involved the respondent, Kwon, who pled guilty to manslaughter. The matter was heard in the Supreme Court of New South Wales, where the court was tasked with sentencing Kwon for his crime. The key issue before the court was the appropriate extent of discount to be applied to the non-parole period in light of Kwon's guilty plea and other relevant factors.

The court considered the principles established in prior case law, which provide for a discount to the non-parole period when a defendant pleads guilty, as an admission of guilt is seen as a mitigating factor. The court examined the nature and circumstances of the offence, including the level of culpability and the impact on the victim. The court also considered the respondent's background, including his age, criminal history, and remorse. The court's analysis involved a careful balancing of these factors to determine the appropriate extent of the discount.

In determining the appropriate discount, the court found that a significant reduction was warranted due to the respondent's early guilty plea and the absence of any aggravating factors. The court ultimately decided that a 25% discount was appropriate, resulting in a non-parole period of 12 years. The court took into account the need for deterrence and the protection of the community, while also considering the respondent's potential for rehabilitation. The final orders of the court reflected this determination, with the sentencing reflecting the appropriate discount and non-parole period.

Orders