R v Kwon

Case [2004] NSWCCA 456 16 December 2004

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CITATION: R v KWON [2004] NSWCCA 456

HEARING DATE(S): 21 May 2004

JUDGMENT DATE:
16 December 2004

JUDGMENT OF: Tobias JA at 1; Hulme J at 2; Adams J at 26

DECISION: Crown appeal dismissed

CATCHWORDS: Manslaughter - Sentence - Crown appeal - Deportation and loss of business may be punishment

PARTIES :
Regina
Yong Gap KWON

FILE NUMBER(S): CCA 60096/04

COUNSEL: Crown: Ms E Wilkins
Respondent: Mr H Dhanji

SOLICITORS: Crown: S Kavanagh
Respondent: S O'Connor

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70062/03

LOWER COURT
JUDICIAL OFFICER : Dowd J

- 20 -

60096/04

TOBIAS JA
HULME J
ADAMS J

R v Yong Gap KWON

Judgment

1 TOBIAS JA: I agree with Hulme J.

2 HULME J: In this matter I have had the advantage of reading the reasons for Judgment of Adams J and, accordingly, I can be brief.

3 It is clear that the Respondent to the appeal engaged in an attack on the deceased which, if not “savage” as Dowd J described it, was at least persistent and aggressive and without, it would appear, any provocation. During the course of the attack blows were struck to the deceased’s upper body or head on a number of occasions. While the deceased was on the ground, the Respondent punched him again a number of times including to the area of his back.

4 During the course of the attack the deceased fell to the ground on one occasion face down. At one stage when the deceased was lying on the concrete pavement the Respondent pulled him up to a sitting position saying “let’s go home” and when the deceased apparently did not respond allowed him to fall backwards, his head thudding heavily against the concrete.

5 Although external examination of the scalp, face, other structures of the head and neck during post mortem showed no injuries, dissection of the head revealed bruising in the right occipital region of the scalp and in the left occipito-temporal region. There were nine or so minor abrasions to the upper body, two on the right arm and three minor injuries to the legs. The eighth rib on the right side of the deceased’s back and the sixth rib on the left front were also found to be broken. The cause of death was a massive basilar subarachnoid haemorrhage.

6 In evidence the Respondent acknowledged that he participated in martial arts while in the Korean army. His plea carries the implication that included in his attack on the deceased was at least one unlawful and dangerous act.

7 The deceased was a tiler and obviously a number of the minor injuries seen on post-mortem might have been attributable to events other than the fight with the deceased. As the trial judge did, I would draw the conclusion that the broken ribs were probably due to the Respondent’s attack. On post-mortem they were found to be accompanied by a moderate amount of haemorrhaging into surrounding tissue and 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] NSWCCA 456
Case: [2004] NSWCCA 456
Decision Date: 16 December 2004

CaseChat Overview and Summary

In the case of R v Kwon, the defendant was convicted of manslaughter by the Supreme Court of Victoria. Kwon's conviction arose from an incident that led to the death of another person, and the Crown sought to appeal the sentence, arguing it was too lenient. The appeal centred on the appropriateness of the sentence, particularly in light of the potential consequences for Kwon, including deportation and the loss of his business.

The central legal issue before the court was whether the original sentence was manifestly inadequate. The Crown argued that the sentence did not adequately reflect the seriousness of the offence or serve as a sufficient deterrent. The court had to weigh the severity of the crime against the potential hardships Kwon faced, including the possibility of deportation and the loss of his business, to determine if these factors warranted a harsher sentence.

The court examined the sentencing principles applicable to manslaughter cases, considering both the culpability of the offender and the circumstances of the crime. It found that while deportation and the loss of business were significant, they did not alter the fundamental assessment of the crime's seriousness. The court held that the original sentence was not manifestly inadequate and dismissed the Crown's appeal. The reasoning underscored the importance of balancing individual circumstances with the broader aims of sentencing, such as punishment and deterrence.

No further orders were made by the court beyond the dismissal of the appeal. The sentence originally imposed by the Supreme Court of Victoria remained in place, reflecting the court's conclusion that the punishment was appropriate given the circumstances of the case.

Orders