R v Won - [2012] NSWSC 855

Supreme Court

New South Wales

Medium Neutral Citation: R v Won [2012] NSWSC 855
Hearing dates: 18/07/2012
Decision date: 03 August 2012
Before: Fullerton J
Decision:
Imprisonment for 7 years and 6 months to date from 11 May 2010 comprised of a non-parole period of 5 years expiring on 10 May 2015 and a balance of term of 2 years and 6 months expiring on 10 November 2017.

Catchwords: CRIMINAL LAW - sentence - manslaughter - provocation
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Hill v R (1981) 3 A Crim R 397
R v Alexander (1994) 78 A Crim R 141
R v Bolt [2001] NSWCCA 487; 126 A Crim R 284
R v Johnson [2003] NSWCCA 129
Category: Sentence
Parties: The Crown
Joachim Won (Offender)
Representation: Counsel:
P Lynch (Crown)
W Terracini QC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

File Number(s): 2010/117415

REMARKS ON SENTENCE

HER HONOUR: On 10 July 2012 the offender was convicted, after trial, of the manslaughter of Hyoung Mo Lee at Pendle Hill on 11 May 2010. The jury acquitted him of the deceased's murder. Although the jury were directed that a conviction of manslaughter by an unlawful and dangerous act was open to them in the event that they were not satisfied that the Crown had proved an intention to kill or inflict grievous bodily harm, I am satisfied that the verdict of manslaughter was returned because the Crown was unable to exclude the reasonable possibility that the offender killed the deceased under provocation after the offender found him having sex with his wife in the bedroom of their home. Counsel did not submit otherwise.

The offender pleaded guilty to manslaughter when he was indicted before the jury. The Crown did not accept that plea in discharge of the indictment.

At the sentence hearing the Crown acknowledged that both prior to, and at the time of the committal proceedings, the offender had offered a plea of guilty to manslaughter (on the grounds of provocation) and that, consistent with what the Court has held in R v Johnson [2003] NSWCCA 129, he was entitled to a discount on sentence for that reason. In the circumstances of this case where, in final address, the Crown conceded that the offender had in fact lost his self-control, thereby seeking a verdict of guilty on the basis that the jury would be satisfied that an ordinary person in the position of the offender would not have lost his self-control as to have formed an intention to kill or to inflict grievous bodily harm, I am satisfied a discount of 25 per cent on the sentence should be allowed.

The deceased died from blood loss within minutes of suffering a knife wound to the front of his upper left arm. It penetrated to the surface of the bone, transecting two arteries, a major vein and a nerve. Five other knife wounds were inflicted to his back, chest and abdomen, none…

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 Won

Details

AGLC: R v Won [2012] NSWSC 855
Case: [2012] NSWSC 855
Decision Date: 03 August 2012

CaseChat Overview and Summary

The matter before the court involved the respondent, Won, who had been found guilty of manslaughter due to provocation. The respondent appealed the severity of the sentence imposed by the trial judge. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed was excessive and whether the trial judge had appropriately taken into account the mitigating factor of provocation in determining the sentence. The court was also required to consider whether the trial judge had adequately weighed the principles of deterrence and denunciation in sentencing the respondent.

In determining the appeal, the court considered the relevant legal principles and authorities. The court noted that provocation is a mitigating factor that may be taken into account when determining the appropriate sentence for an offence. However, the court also emphasised that the principles of deterrence and denunciation must be balanced against the mitigating factors in sentencing. The court found that the trial judge had appropriately taken into account the mitigating factor of provocation but had not adequately balanced the principles of deterrence and denunciation. The court found that the sentence imposed was excessive and ordered a re-sentencing hearing.

The court held that the sentence imposed by the trial judge was excessive and ordered a re-sentencing hearing. The court emphasised the importance of balancing the principles of deterrence and denunciation with the mitigating factors in sentencing. The court noted that the trial judge had appropriately taken into account the mitigating factor of provocation but had not adequately balanced the principles of deterrence and denunciation. The court ordered that the respondent be re-sentenced, taking into account all relevant factors, including the principles of deterrence and denunciation and the mitigating factor of provocation.

Orders