R v Kwon

[2004] NSWCCA 456

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

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60096/04

TOBIAS JA
HULME J
ADAMS J

Thursday, 16 December 2004

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 coincidence between their location in the sense of the upper body and the fact that the Respondent administered blows to that area seems to me sufficient to merit the inference his Honour drew. Furthermore, that finding is only of an incidental nature as one bearing on a conclusion as to the nature of the attack or the cause of death and in those circumstances not one which, in my view, requires proof beyond reasonable doubt. While there are clear statements that a sentencing judge “may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt” – see e.g. R v Olbrich (1999) 199 CLR 270 at [27], there is no reason to think that such statements apply to every primary or incidental fact taken into account in arriving at a conclusion as to the existence of an aggravating feature. On issues going to the guilt of an accused, the lower standard for subsidiary facts applies – see Shepherd v R (1990) 170 CLR 573; Chamberlain v R (No 2) (1984) 153 CLR 521 - and logic indicates that no higher requirement should exist in the case of subsidiary facts relevant in sentencing. See also R v Khouzame [2000] NSWCCA 505 at [30].

8 Undoubtedly one must recognise that the relative lack of more serious external wounds to the deceased argues in favour of the view that, whether due to the Respondent’s inebriation or otherwise, the attack may have been less severe than some of the evidence would suggest. Be that as it may, the fact remains that in the course of persistent and repeated aggression, including aggression directed to a man already on the ground, the Respondent, by inflicting at least one unlawful and dangerous blow, caused the deceased’s death in circumstances where there was no excuse, or even a reasonable explanation, for his conduct.

9 Dowd J found that the Respondent was of good character, a hard worker and respected among his business associates, remorseful and would be unlikely to offend again. The Crown conceded the first of these matters, subject to the fact that the Respondent had apparently built up a substantial tiling business – he had a contract to tile 130 apartments - by employing a number of illegal immigrants who he paid in cash. Six of his employees were arrested on one occasion. Remorse for what had occurred there may have been but it is also relevant to bear in mind that during the sentencing proceedings, the Respondent maintained that it had been a two-way fight – a proposition quite at odds with the Crown Case Statement and his Honour’s findings as to what had occurred.

10 In the body of his remarks, Dowd J also said that he “had regard because of the difficult circumstances of the prisoner in the Corrective Services system, due to cultural and language deprivation, to the need for rehabilitation and the fact that his time will be served absent contact with his family, who will by then have been removed to Korea.” Apart from the offence itself, there was no evidence that the Respondent had any need for rehabilitation and, as has been said, Dowd J had in any event found that the Respondent was unlikely to reoffend.

11 His Honour took as his starting point for the sentence he ultimately imposed on the Respondent, imprisonment for 4 years. But for 2 matters I regard such a period as manifestly inadequate and giving insufficient recognition, as the courts have said many times must occur, to the dominating feature that another human being has been killed – R v Blacklidge (Unreported, CCA, 12 December 1995); R v McDonald (Unreported, CCA, 12 December 1995).

12 I should say that in arriving at the conclusion expressed in the preceding paragraph, I have had regard, apart from my own experience in this Court, to a substantial number of cases to which the Crown referred the Court, albeit recognising that there is such a variety of circumstances in which manslaughter offences are committed, that other cases can be at best a very rough guide. The Crown also submitted that, although its appeal did not depend on the Court doing so, it was open to the Court to find that sentences at the lower end of the spectrum for manslaughter have generally been manifestly inadequate. I have not found it necessary to embark on that issue in determining this appeal.

13 One of the factors to which I refer as justifying the period of 4 years arises from the fact that the presence of the Respondent and his family in Australia was pursuant to a visa that allowed temporary residence. He hoped to settle in Australia but the result of his offence is that his family have had to leave, and on completion of the custodial portion of his sentence, he will also have to leave Australia. The second factor concerns the consequence of his custodial sentence. He has lost the tiling business which he had established and which was, it would seem, an asset of significant value. At the time of the offence he was tiling a 130 unit development for Meriton Apartments.

14 These two matters are not insubstantial and one may fairly say, in practical terms, punishing consequences of his offending. I would regard an opportunity for someone in the situation of the Respondent of permanently settling in Australia with his family as something of real value to him. I should perhaps add that, while I have mentioned what has happened to the Respondent’s family, I do not regard the hardship they suffer from not being allowed to settle here as falling within the highly exceptional circumstances where hardship to an offender’s family can properly be taken into account in mitigation of his sentence – Edwards (1996) 90 A Crim R 510 at 516; R v Byrne (Unreported, CCA, 5 August 1998).

15 In light of these losses, the conclusion at which I have arrived is that his Honour’s 4 years starting point, while lenient, was not manifestly inadequate.

16 I agree with Adams J that the discount his Honour allowed for the Respondent’s plea and what was said to be assistance to the authorities of 33 1/3% was unjustifiably generous. The assistance was little, if anything, more than reversing his own actions in absconding and taking possession of some of the deceased’s assets after the latter’s death. Furthermore, some proportion has to be kept. If, as Dowd J thought, 4 years imprisonment was an appropriate reflection of the Respondent’s offending in causing death, it strikes me as completely out of proportion to suggest that a reduction of 1 year and 4 months is an appropriate reflection of pleading guilty and the Respondent’s “assistance”.

17 Nor was the plea made at an early stage. It occurred after one adjournment of an arraignment hearing in this Court and after the Respondent was indicted for murder. It avoided a 2 to 3 week hearing so while it had undoubted utilitarian value, that utilitarian value was not particularly large. The appropriate range of discount for the plea was of the order of 15%. Applying this discount to a starting point of 4 years, the result, in round figures, is 40 months.

18 The custodial portion of the Respondent’s sentence was then further reduced in consequence of a finding by his Honour that “there should be a period of 12 months supervision after serving the custodial sentence, taking into account the subjective matters that I have referred to above, and the difficulties of re-adjustment to (sic) custodial life” and, implicitly, that these factors amounted to “special circumstances”.

19 There was no evidence to suggest that the Respondent needed or would benefit from an extended period on parole or would have any more difficulties in adjusting to non-custodial life than the usual. Thus I regard his Honour’s reasons for reducing the custodial portion of the Respondent’s sentence as also affected by error. In addition, the Respondent’s subjective matters had been taken into account in the fixing of the head sentence. Of course in the fixing of a non-parole period such factors may be taken into account again – Bugmy v R (1990) 169 CLR 525 at 531, but courts must be astute to ensure that there is no unjustifiable double counting. Furthermore, to justify a departure from the statutory proportions, the legislature requires that the circumstances be such as to fall within the description “special” – Crimes (Sentencing Procedure) Act s44. Here, apart from two matters, there was nothing about the Respondent’s subjective or the other circumstances which argued for a finding of “special circumstances”.

20 The two matters to which I refer are that this was the Respondent’s first time in custody and that his knowledge of English was limited. On the other hand the Respondent has been in Australia since 1997 and he gave evidence that he could speak enough English to have negotiated all the business he engaged in for builders and to hold a small conversation in English and otherwise just used simple English like talking about the weather.

21 In combination, I would regard these matters as both constituting special circumstances and arguing for some reduction in the non-parole period and corresponding increase in the period of the Respondent’s sentence when he is eligible for parole. However it must be borne in mind that his Honour had also taken the second of these matters into account in determining the period of 4 years. In the circumstances of this case, this fact inspired me to give this second factor limited weight on the issue of special circumstances and the determination of the non-parole period. Approaching the matter in accordance with normal sentencing principles, recognising that in this case personal deterrence, rehabilitation and protection of the community have little part to play, but general deterrence and retribution are still required to be given weight, I do not think it possible to justify a non-parole period of less than 65% of the overall sentence – i.e. 26 months. Indeed there is much to be said for the view that that is too light for killing another human being in the course of a persistent, aggressive and unprovoked physical attack.

22 Certainly I am satisfied that at first instance no lower sentence than a non-parole period of 26 months and parole period of 14 months was appropriate.

23 What should this Court do? The Court has a discretion in the case of any Crown appeal not to interfere even where it concludes that error has occurred either in the sentence imposed or otherwise at first instance and the authorities indicate that because of the double jeopardy which arises in such cases, the Court should hesitate before it interferes.

24 Although my mind has vacillated on the topic, ultimately the conclusion at which I have arrived is that the Court should exercise its discretion not to allow the Crown appeal. I am much influenced in that conclusion by the view that this event was an aberration in what seems to have been an otherwise very worthwhile life.

25 Accordingly, the appeal should be dismissed.

26 ADAMS J: This is an appeal by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act 1912 against the sentence imposed in the Supreme Court on 27 February 2004 upon a conviction of manslaughter committed on 9 February 2003. The respondent was sentenced to a term of thirty-two months’ imprisonment commencing 13 February 2004 with a non-parole period of twenty months expiring on 12 October 2005. The Notice of Appeal was filed in the Court of Criminal Appeal on 5 March 2004 and served on the respondent on the following day.

FACTS

27 In a general sense, the facts are not controversial. In two important respects, so it seems to me, there was a dispute which was determined by the learned sentencing judge adversely to the respondent. These controversies are indicated in the following account, which is largely taken from the learned sentencing judge’s reasons for sentence.

28 On the evening of 8 February 2003, the deceased, who was the respondent’s employee, had dinner with him and others, including the respondent’s wife (Yong), at a restaurant in Beamish Street, Campsie. Both the respondent and the deceased had known each other for some time, the respondent having employed him for several years in his roof tiling contracting business. Sometime around the middle of the evening, the party left the restaurant and went to a music studio in Campsie. Leaving the others there, the deceased, Yong, and another man went to another restaurant in Beamish Street, Campsie at about 1.20am where they commenced to drink whisky. At around 2am, the respondent entered the restaurant, yelling and swearing at Yong in the presence of the deceased, the third man having since left. A short time later, the deceased, Yong and the respondent left the restaurant and stood in Beamish Street and the respondent resumed shouting at his wife. In what appears to be an entirely unprovoked assault, the respondent then punched the deceased about three times, causing him to fall to the ground. (I interpolate here that seems that it would have taken very little force to have achieved this, as the deceased was very drunk indeed – a blood sample taken perhaps an hour later revealed the very high concentration of 0.336 grams/100 mL.) The deceased stood up and made his way to a nearby bench where he sat down. The respondent also sat on the bench but, shortly after, stood up and punched the deceased around his upper body or head several more times. The deceased rose from the bench only to fall to the ground, face down (as the eye-witness recalled, but see the pathologist’s report, referred to below), where the respondent punched him again about five more times. Yong tried to pull the respondent away from the deceased and was herself struck several times in the face by the respondent. Yong and the respondent then walked off around the corner, leaving the deceased, who had rolled over onto his back, on the ground.

29 Mr Il An, a passer-by who spoke Korean, and who had witnessed the respondent’s assaults, went to the aid of the deceased but was unable to detect any breathing although it is clear that he was still alive. At this point the respondent returned, pulled the deceased into an upright position and said words to the effect, “Let’s go home”. An asked the respondent who the deceased was and he replied that they worked together. The respondent then let go of the deceased, allowing him to fall backwards, his head hitting the ground hard. The respondent then walked to the other side of the street, entered his vehicle and drove off.

30 The deceased was conveyed to Canterbury Hospital but did not regain consciousness and was pronounced dead at 5.44pm on 10 February 2003. The cause of death was traumatic isolated subarachnoid haemorrhage.

31 It is important to read this account of the facts in light of the undisputed medical evidence contained in the autopsy report prepared for the Coroner by Dr Johan Duflou, of the Department of Forensic Medicine at Glebe. The report summary contains the following –

“At autopsy, there was no obvious injury to the head on external examination and very minor abrasion of parts of the trunk and limbs only. Internal examination revealed two small bruises to the back of the head. There was a dense basal subarachnoid haemorrhage. No specific site of bleeding could be identified at the time of the initial examination, and further detailed examination …will be conducted.” [That detailed examination did not take the matter any further.] In addition to the bleeding, there were two rib fractures, and advanced coronary artery narrowing with scar formation in the heart muscle.”

32 The rib fractures were described as a fracture of the eighth rib on the right laterally with a moderate amount of surrounding haemorrhage into soft tissues and a fracture of the sixth rib on the left anteriorly with a moderate amount of haemorrhage into the surrounding soft tissues. There is no evidence as to the extent of these fractures or when they were suffered. As far as the evidence goes, which is confined to the autopsy report, the fractures may have been quite small although they were associated with bleeding into the surrounding soft tissues. The Crown statement did not refer to these injuries.

33 The learned sentencing judge, in briefly describing the cause of death, noted, “There were relevantly also found bilateral rib fractures.” In light of the absence of any evidence as to when the fractures were suffered, I find it difficult (with great respect) to understand how the finding of relevance was made, especially since, as it was adverse to the respondent in a significant respect, it could not be made unless it had been proved beyond reasonable doubt. Even if the relevant standard of proof were the balance of probabilities, a conclusion that the respondent caused these injuries is not justified, in my view. There is no evidence as to how old the “associated bleeding” was and the autopsy revealed no connected external bruising. However that may be, there is no evidence, and his Honour did not find, that these injuries contributed to the respondent’s death: if relevant they went, of course, to the violence of the respondent’s attack at that point.

34 The detailed autopsy findings showed that there were no injuries evident on external examination of the scalp, face and other structures of the head and neck. The learned trial judge (relying, I think, on the evidence of An) stated that the respondent possibly punched the deceased in the head area. If this occurred, the punches were obviously slight since no injury at all resulted from them and no inference could be drawn that any injury was, in fact, intended. At the same time, no other injuries were apparently caused by the respondent’s blows described by Mr An to the upper body of the deceased. The two bruises to the back of the head, it seems almost certain, were caused when the deceased fell. In light of the qualified character of An’s statement (tendered in the proceedings) and in terms of his Honour’s finding, this Court should proceed upon the basis that there were no blows or, at least no significant or forceful blows, to the deceased’s head. The learned trial judge did not refer to the medical evidence except to identify the cause of death, from which I infer that it was not controversial. The uncontested medical evidence was a very significant objective indication of the true nature of the respondent’s assaults and, accordingly, on the evaluation of his culpability for the deceased’s death.

35 To return to the autopsy findings, Dr Duflou noted that subsequent dissection of the head revealed a 30 x 10 millimetre area of red bruising in the right occipital region of the scalp and a 60 x 20 millimetre blue/red bruise in the left occipito-temporal region of the scalp. It seems reasonable to conclude that these injuries resulted from trauma inflicted during the respondent’s attack on the deceased and, in all likelihood, at least one resulted from his fall to the pavement when he was let go by the respondent as described above. It seems unlikely that the latter bruise was inflicted when the deceased fell “face down” after he got up from the bench for the second time. The absence on any injury to the face rather suggests that, if indeed his face struck the pavement, it did so with very little force. As the bruises were the only injuries to the head, it seems reasonable to infer that one or other or both of them played a significant role in the injury which caused the subarachnoid haemorrhage. However, this conclusion is somewhat suppositious, since no evidence was tendered to the learned sentencing judge (or, for that matter, to us) which explained their significance. It may be that there was some agreement about this matter which was communicated to the judge in submissions but the submissions were not transcribed and do not form part of the material before us. A number of abrasions were found on the trunk and arms and legs of the deceased, all of them fairly small and many of them “very faint”. There was also a small blue bruise noted on the inner surface of the deceased’s left thigh. It is impossible from the autopsy report to gather whether these abrasions were or may have been caused during the respondent’s assaults on the deceased but, as a lay person, I find it difficult to understand how punches might result in abrasions but not in any bruising. It is probably significant in this respect that the deceased was a roof tiler working on a building site and it may be that these abrasions were suffered by him at various times whilst at work, but this is speculative. However, what seems to be clear is that no inference could be drawn without expert evidence that these abrasions were caused by the respondent. The Crown statement of facts tendered below does not contain any such allegation and the learned sentencing judge made no such finding for, as it seems to me (with respect), obvious reasons.

36 The learned judge concluded that the deceased’s death was caused (one way or another, as I understand his remarks on sentence) by the unlawful assaults of the respondent, which comprised the unlawful and dangerous act giving rise to the offence of manslaughter to which the respondent had pleaded guilty.

37 The respondent gave evidence before his Honour, the substance of which was that he and the respondent had engaged in a fight in which each of them had exchanged blows but that he was unable to recall much of what happened due to his own state of inebriation. Although he recalled (at the end) picking the deceased up to a sitting position and thinking that he was asleep and trying to wake him, he did not recall dropping him back onto the ground although he did not deny doing so. Whether dropping the deceased was intentional or hostile is a matter difficult to determine on the facts as elicited below. Of course, if it were either unintentional or not hostile it would not have been an assault and, accordingly, if death were caused by an injury resulting from that act, the respondent would not have been guilty of manslaughter. However, the respondent’s plea of guilty must be taken to amount to an admission that, indeed, he had assaulted the deceased and that one or more of those blows caused his death and that a reasonable person in his position would have realised that there was an appreciable risk of serious injury arising from that conduct: Wilson v The Queen [1991-1992] 174 CLR 313.

38 The respondent and his wife, Yong, went home after the incident but, by the time Yong awoke at about lunchtime, the respondent had left. She did not know where he went. Having discovered Yong’s address by following up some items of hers left at the scene, police went to Yong’s home in Redmond Street, Canterbury on the evening of 9 February. The respondent, however, was not there, having left sometime before Yong awoke at about lunchtime. It appears to have been accepted that, due to her level of intoxication at the time, she had no recollection of events from sometime before the party arrived at the restaurant.

39 Yong had suffered a bruise to underneath her left eye and a swollen cheekbone but could not remember how they were caused. (These injuries may be contrasted with the absence of injuries on the deceased.) Yong went to the hospital with the police in an attempt to identify the victim, who was then in the Neurosciences Intensive Care Unit. She told police that he was one of her husband’s employees and that she believed his name was Mr Baek, informing them also of the address of the block of units where she believed he lived, although she did not know in which particular apartment. Yong said that she did not remember being present when Mr Baek was assaulted and did not know who assaulted him. Sometime after Yong returned home that night, the respondent also returned. He was obviously very worried and nervous. He told his wife, in substance, that he had been very drunk and, though he did not remember everything that happened, recalled getting angry with Mr Baek and his wife for refusing to leave the restaurant and insisting that they wished to have more to drink, that an argument broke out, that they left the restaurant and sat down outside, Mr Baek being so drunk that he slumped forward from where he was sitting on the bench and fell to the ground. The respondent told Yong that there was a scuffle involving the three of them. He also told her that when Mr Baek slumped to the ground, he did not get up. The respondent decided to take Yong home and then return for Mr Baek but, when he returned (as I understand the account), the ambulance was already there and he was worried that the police would come and he would get in trouble so he just left and returned home.

40 Yong informed the respondent, of course, about the interest of the police and how badly Mr Baek was hurt. They were both “very scared” and the respondent in particular, was worried that the police were looking for him. Yong told the respondent what the police had told her, namely that the police would be in contact and arrange a time to speak to him. Yong and the respondent stayed together that night at their house. The respondent left home on the following morning and his wife did not see him for some days; although he spoke to her several times by telephone, she did not know where he was. At about 9.40am on 14 February, however, following a conversation between the respondent’s legal advisers and investigating police, he attended with his wife and his legal representative at the Burwood Police Station, declined to say anything about the matter and was charged with the murder of the victim. At that time, the victim was still not positively identified. It appears that the respondent’s wife had given the police every assistance both with respect to locating her husband and identifying the victim.

41 From the point of view of the police investigation, the next event occurred on 3 March 2003 when police attended the office of the respondent’s solicitors where an employee gave them a sports bag which contained a wristwatch, $500 cash and the deceased’s Korean passport. It was then, of course, possible to identify him. It appears that the victim had carried the bag on the night that he was attacked. However, up to this time, significant police resources had been utilised in an attempt to undertake the task of identifying the victim. One of the consequences of the delay in confirming his identity was that there was a substantial delay in informing his relatives in Korea of his death. It cannot be doubted that this would have been likely to have exacerbated their anguish, either because he could not be contacted or because of their awareness of the delay once they were informed of his death.

42 Amongst other things, police discovered that the respondent had employed, on the building site where he was undertaking a tiling contract, seven persons, including the deceased, who were unlawfully in Australia, as I take it, having arrived here on tourist visas which had long since expired.

43 The respondent said in evidence that his recollection was significantly affected by his intoxication and he found it difficult to distinguish between what he actually remembered and what he was told. This was not really disputed by the Crown. He said, however, that he remembered exchanging punches “a couple of times”, arguing with his wife and that “then Mr Baek collapsed”. The respondent claimed that Mr An told him that he was too drunk and should go home and he would take care of Mr Baek. The respondent expressed remorse and gave evidence to the effect that he had been very troubled by what had happened.

44 In cross-examination, the respondent said that he did not recall the victim falling to the ground following a punch; although he recalled that he was on the ground, he did not remember how that had happened. His recollection was that he and the victim were sitting on the bench, that the respondent was engaged in an altercation with his wife, that he then turned around and the victim was on the ground and that he did not see him falling. The respondent said that, so far as he knew, the victim fell to the ground once, although he could not be certain. He had no recollection of hitting the victim whilst he was lying on the ground. He recalled leaving the scene and then returning to where the victim was lying on the ground and picking him up to a sitting position, thinking he was asleep and trying to wake him up. He did not recall dropping the victim from that position back onto the ground although he recalled that Mr An was there at the time. He did not deny, however, that he might have dropped him. It is obvious that the learned sentencing judge did not accept the respondent’s evidence about mutual punching and preferred Mr An’s statement in this respect. This conclusion was certainly open to his Honour.

45 I have already drawn attention to the medical evidence which, as it seems to me, demonstrates virtually to the point of certainty that, if the respondent struck the deceased in the face and head, those blows were insignificant because they caused no observable injury. Nor was there medical evidence that any other blows caused any direct injury to the victim. Although the learned sentencing judge described the fractured ribs as “relevant”, it is not clear what inferences his Honour drew from their presence. If they were caused at the time of the incident (a matter which, in substance, was denied by the respondent in his evidence) they would bespeak the use of a fair amount of force but it is obvious that they were unrelated to the cause of death. On the other hand, if they had been suffered at some earlier time then the victim may have been suffering considerable discomfort from them which made it difficult, together with his state of inebriation, for him to defend himself. On the state of the evidence, it does not seem to me that the learned sentencing judge could have concluded that the former was the case absent any concession from the respondent, whose evidence was inconsistent with any such concession.

46 Bearing mind the Crown’s onus of proof of adverse facts, this offence therefore had the following features: the victim died from a brain haemorrhage suffered, almost certainly, when he fell on the back of his head; his fall, contributed to, probably substantially, by his extreme inebriation, was caused by at least one assault by the respondent; the fall from his being let go from a seated position was probably not an assault at all, since it may not have been associated with a hostile intent; in themselves, the assaults, though repeated, were trivial in the sense that they caused little or no direct injury; the respondent did not intend to injure the victim and had not foreseen the risk of any serious injury. This description is established by the objective evidence and, so far as I can see (with the possible exception of the broken ribs, which were not mentioned in the Crown statement of facts and, for the reasons already given, could not be attributed to the appellant), uncontroversial. There was no premeditation or previous ill will towards the victim. The respondent’s acts appear to have resulted from a spontaneous outburst of drunken, foolish anger.

47 The learned sentencing judge described the offence as follows –

“The savage attack on the part of the prisoner, affected as it was by considerable ingestion of alcohol, was nonetheless a protracted period of violence which resulted in the death of a human being through no apparent fault of that human being.”

With unfeigned respect for his Honour, I consider that this characterisation considerably overstated the actual gravity of the offence, in light especially of the uncontroverted medical evidence. The foundational offence, of course, is assault occasioning actual bodily harm. In the absence of brain damage it is incontrovertible that the respondent would not have suffered a sentence involving imprisonment. Disregarding the last fall when the appellant let the deceased go (because, although dangerous, it may well not have been an assault, for the reasons given above), I feel bound to say that, objectively speaking, there was a real doubt whether a reasonable person would have realized that there was an appreciable risk of serious injury ( Wilson v The Queen (1991-1992) 174 CLR 313 at 333) from the violence that was actually shown to have been inflicted. This issue was resolved, of course, by the plea.

48 These considerations lead me to conclude that this offence falls well within the least culpable category of manslaughter, having regard also to the subjective features of the case: the respondent’s remorse and contrition; his previous good character so far as non-immigration offences were concerned; the inevitability of his deportation following release, together with his family (especially distressing for his children) and the loss of the opportunity of becoming an Australian and of raising his family here; and the difficulties faced in gaol because of his limited English language skills. It follows that the learned trial judge’s starting point of four years was at the high rather than the low end of appropriate punishment. The Crown appeal cannot succeed at this point.

49 This was, of course, a case that called for a discount for utilitarian reasons in accordance with R v Thomson and Houlten (2000) 49 NSWLR 383. In this regard, his Honour said –

“In the circumstances of this case, taking into account the seriousness of the offence and the prisoner’s favourable subjective circumstances, and taking into account the utilitarian value of the plea, the surrender by the prisoner, the assistance provided, and the earliness of the plea, I consider that a plea of greater than twenty five per cent is appropriate and propose to grant a discount of one third, that is, thirty three and one third per cent.”

50 In this Court the Crown contended, in support of the general submission that the sentence was manifestly too lenient, that this discount was excessive. In my respectful view, this contention is correct. Firstly, the discount only comes to be considered after the starting point is determined, namely the sentence which appropriately reflects all objective and subjective matters, including remorse and contrition, since it is the very essence of the public interest considerations underlying the discount that it be separately identified. These matters might be relevant in the case of a crime that was so serious as to render any discount inappropriate (see Thomson and Houlten 49 NSWLR at [157] but this was plainly not such a case. Second, the assistance provided was limited to the production, after considerable delay, of the victim’s property, in particular his passport, that had been removed from the scene by the respondent himself. Although, no doubt, his intention was to safeguard them, the delay in their production caused considerable expenditure of time and effort by police in their endeavour to identify the deceased and, it is also clear, must have been very distressing to his friends and relatives back in Korea. To my mind, the return of this material did no more than to correct somewhat the wrongfulness of retention over that period. At the same time, I would respectfully agree that his surrender to the police was deserving of some credit. Taking these things together, I consider that there was no such assistance to the authorities as justified a greater discount than that suggested as the upper limit of twenty five per cent in Thomson and Houlten (49 NSWLR at [152]). In my view an allowance of twenty five per cent is appropriate, since it is in the public interest that suspects be encouraged to surrender to police and doing so is analogous to or connected with the utilitarian considerations justifying discount for the plea and it is plain that the respondent’s plea was indeed given at the earliest opportunity. This would reduce the head sentence to three years. It follows from what I have already said that I would not conclude that this was inappropriately lenient.

51 It is contended that the sentencing judge erred in finding that there were special circumstances justifying variation of the statutory calculus in s44 of the Crimes (Sentencing Procedure) Act 1999. The respondent was sentenced to a non-parole period of twenty months, rather than the twenty-four months which that calculation required. His Honour justified this step by a general reference to the respondent’s subjective circumstances and the difficulties of readjustment to custodial life. The Crown submits that this gives the subjective circumstances an inappropriate double effect and led his Honour into error. However, a careful reading of his Honour’s reasons for judgment has led me to conclude that the earlier discussion of the subjective circumstances, with a reference in particular to rehabilitation, was intended to cover both the setting of the head sentence and the possible impact of special circumstances. It is regrettable perhaps that there was no distinct assignment of considerations relevant to each element, but I do not think that his Honour doubled up: rather, as I read the reasons, he referred to all the relevant matters in a cumulative way. At the end, the crucial question is whether the resulting twenty months (rather than the unreduced twenty-seven months) non-parole period is manifestly too lenient, having regard to all the circumstances of the case. I do not think that the non-parole period was manifestly too lenient.

52 Looking at the matter as a whole, I consider that the sentence imposed on the respondent was well within the applicable range in the somewhat unusual circumstances of this case, even though it reflected an error (the inappropriately high discount for assistance) that, in part, led to the resulting sentence.

53 The appeal should therefore be dismissed.

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Last Modified: 12/17/2004