R v See - [2001] NSWSC 776

CITATION: R v SEE [2001] NSWSC 776

FILE NUMBER(S): SC 70095/00

HEARING DATE(S): 10 August 2001

JUDGMENT DATE:
7 September 2001

PARTIES :

Regina
Choon Hai SEE

JUDGMENT OF: Hulme J at 1

COUNSEL : Crown: Mr P Miller
Prisoner: Ms L Flannery

SOLICITORS: Crown: SE O'Connor
Prisoner: Legal Aid Commission of NSW

DECISION: See paragraph 29

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70095/00

HULME J

R v Choon Hai See

Remarks on Sentence

1 His Honour: On 30 July 2001, Choon Hai See was indicted on a charge that on 12 September 2000 he attempted to use an offensive weapon namely a knife with intent to assault Zee Wei Ang, also known as Simon Ang, thereby occasioning him actual bodily harm. To this charge he pleaded guilty.

2 He was then indicted on a charge that on 12 September 2000 he did murder Han Cheat Ang, also known as Jack Ang. To this charge the Prisoner pleaded not guilty. On 10 August last, a jury found him not guilty of murder, but guilty of manslaughter and he now stands to be sentenced for both offences. Pursuant to s33B of the Crimes Act, the lesser charge carries a maximum penalty of 12 years. Under s24, the maximum penalty for manslaughter is 25 years.

3 It falls to me to decide, in a manner consistent with the jury's verdict, the facts upon the basis of which the Prisoner is to be sentenced. Insofar as any matters are to be used adversely to the Prisoner, I must be satisfied of them beyond reasonable doubt. In summary the circumstances of the offences were as follows.

4 The Prisoner and the two victims were employees of a Chinese restaurant which operated within the premises of the Mingara Recreation Club at Tumbi Umbi. The three also lived together in premises rented by the proprietor of the restaurant for such employees. For some period prior to 12 September, the Prisoner had been the butt of some puerile teasing. He had been kicked on the behind three times while squatting and an apple core or egg shells had been thrown at him twice. The Prisoner seems to have mentioned that he had a girlfriend and the deceased said the Prisoner was old and any young girl would fall in love with the deceased rather than the Prisoner. On one occasion the deceased, who was only 17, said the Prisoner's private part was very small, a remark which elicited laughter from others nearby.

5 Other incidents arose out of the fact that the Prisoner and the deceased were in Australia on 3 months tourist visas and were not supposed to be working. Apparently Immigration officials had on at least one prior occasion raided the premises in which the 3 persons lived. The Prisoner had come to Australia to earn money and had paid some $2,500 to an agent in Malaysia for the airfare and a job and did not want to lose 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 See

Details

AGLC: R v See [2001] NSWSC 776
Case: [2001] NSWSC 776
Decision Date: 7 September 2001

CaseChat Overview and Summary

The case of R v Choon Hai See involves the defendant, Choon Hai See, who was found guilty of manslaughter and attempting to use an offensive weapon with intent to assault. See had been subjected to prolonged and severe teasing by the deceased, Han Cheat Ang, which eventually led to a violent confrontation resulting in Ang's death. The court had to decide whether See should be sentenced for manslaughter based on provocation or for causing death by an unlawful and dangerous act. The court found that See's reaction was provoked and reduced the charge from murder to manslaughter.

In determining the appropriate sentence, the court considered several factors, including the degree of provocation, the time between the provocation and the loss of control, and the degree of violence displayed by See. The court found that the provocation was moderate, the loss of control was immediate, and the violence was extreme. The court also considered See's background, noting that he had a history of being bullied and teased, and was suffering from an adjustment disorder with a depressive condition at the time of the offence. Additionally, the court took into account that See was in Australia on a tourist visa, working illegally, and was not fluent in English.

Considering the purposes of sentencing, the court found that protection of society, personal deterrence, and reform played little part in this case. The court emphasized the importance of general deterrence and retribution, as a human life had been lost due to See's use of a knife. The maximum penalty for manslaughter is 25 years imprisonment. The court decided on a sentence of 7 years imprisonment, with a non-parole period of 4½ years, for the manslaughter charge, and a concurrent fixed term of 1 year for the charge of attempting to use an offensive weapon. The court's decision was based on the need for general deterrence and ensuring that those left behind the victim feel that justice has been done.

Orders