R v Yu - [2003] NSWSC 1153

CITATION: R v Yu [2003] NSWSC 1153

HEARING DATE(S): 24/11/03 - 26/11/03

JUDGMENT DATE:
4 December 2003

JUDGMENT OF: Wood CJatCL at 1

DECISION: Sentence of Imprisonment for 5 years, to date from 11 September 2002. A non parole period of 2 years and 6 months, to date from 11 September 2002, and to expire 10 March 2005.

CATCHWORDS: CRIMINAL LAW - sentence - manslaughter - plea of guilty - special circumstances.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Regina v Alexander (1995) 78 A Crim R 141
R v Bolt [2001] NSWCCA 487
R v Hill (1981) 3 A Crim R, 397
R v Huang (2000) 113 A Crim R 386
R v Isaacs (1997) 41 NSWLR 374
R v Kanj [2000] NSWCCA 408
R v Shrestha (1991) 173 CLR 48
R v Whalen NSWCCA, 5 April 1991

PARTIES :
Regina
Tai Zhu Yu

FILE NUMBER(S): SC 70033/03

COUNSEL: Mr P. Lynch (Crown)
Mr T. Molomby SC

SOLICITORS: C K Smith (Crown)
S E O'Connor

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Wood CJ at CL

Thursday 4 December 2003

70033/03 Regina v Tai Zhu Yu

SENTENCE

1 HIS HONOUR: On 24 November 2003, Tai Zhu Yu, entered a plea of guilty to an indictment charging him with the manslaughter, on 30 August 2002, of Jang Sig Seo, also known as Sung Il Park. He had been arraigned on 4 July 2003 on a charge of murder, to which he had pleaded not guilty. The plea to the lesser offence, which had been informally discussed, at least by the time of the arraignment, and then formally offered in October last, was accepted by the Crown in November, following a conference with the de facto partner of the deceased, and a review of the expert reports, to which I will refer. In those circumstances it can properly be regarded as an early plea to manslaughter.

Facts

2 The defendant, who is of a Korean background, and who came to Australia from China during the 2000 Olympics, was, at the time of the offence, working as a cleaner. By reason of their status as illegal immigrants, both he and his de facto partner Song Zhu Piao, who had followed him to Australia, were taken advantage of by the cleaning contractors for whom they worked, and who had come from a similar ethnic background. As a consequence they found themselves working extremely long hours for little pay, for which they often had a lengthy wait.

3 The deceased and his de facto partner Ah Kyung Choi, who was distantly related to the defendant, also came to Australia from China. They arrived in about 2002 and took up residence with the defendant and his de facto partner at their home in Dee Why. Work as cleaners was arranged for them through Jae Su Kim, who had been the principal, although not the sole, employer of the defendant and his partner.

4…

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 Yu

Details

AGLC: R v Yu [2003] NSWSC 1153
Case: [2003] NSWSC 1153
Decision Date: 4 December 2003

CaseChat Overview and Summary

In the matter of R v Yu, the case was brought before the court following the defendant's plea of guilty to a charge of manslaughter. The court was tasked with determining an appropriate sentence for the defendant, taking into account the special circumstances of the case. The defendant, Yu, had been involved in an incident that resulted in the death of another person, and had entered a guilty plea to the charge of manslaughter.

The primary legal issues that the court was required to decide were the appropriate sentence for the defendant, and whether any special circumstances existed that warranted a departure from the standard sentencing principles. The court needed to balance the seriousness of the offence against any mitigating factors, as well as consider the principles of proportionality and deterrence in determining the appropriate penalty.

In delivering the judgment, the court considered the nature and circumstances of the offence, the character and background of the defendant, and any other relevant factors. The court found that the special circumstances of the case warranted a reduced sentence, taking into account the defendant's early guilty plea, remorse, and the impact of the incident on the victim's family. The court ultimately sentenced the defendant to a term of imprisonment, with a non-parole period, reflecting the seriousness of the offence while also considering the special circumstances of the case.

The court made orders for the defendant to be detained in custody and to serve the sentence as determined. The court also ordered that the defendant be given credit for any time spent on remand, and that any relevant authorities be notified of the sentence and its imposition.

Orders