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 After a time tensions emerged between the two families, as a result of delays in being paid for their work, personality clashes, and behaviour of the deceased that the defendant described as “backbiting”, involving, it would seem, tales told by the deceased to Jae Su Kim, as well as some untoward and aggressive incidents when the deceased had been affected by alcohol.

5 On one occasion, it is said, he made reference to the criminal connections which his brother allegedly had in China, and to an incident in which that brother had apparently killed someone. This was said in a context that conveyed an implicit threat of harm to the families of the defendant and of his partner, who were still living in China. There were also some problems in relation to the work performance of the deceased and his wife, and in relation to an insufficiency of cleaning jobs for all four persons.

6 These problems came to a head after about two to three months, at which point the deceased and his wife either decided, or were asked, to leave the defendant’s flat. They moved to an address nearby, although they still saw one another on occasions, and exchanged pleasantries.

7 In about December 2001 Song Zhu Piao suffered a serious leg injury which prevented her working for about six months. During this period the defendant assumed sole responsibility for their contracts, adding to an already demanding and stressful workload.

8 During the lead up to 30 August 2002, the defendant and his wife, who by then had resumed her cleaning duties, were working for several contractors for about 17 hours a day, often each day of the week, and at various locations in the Peninsula and Northern Suburbs. That this was the case was confirmed by Michael Lee, who was the area manager and inspector of the company which subcontracted work to Jae Su Kim. They were able to gain only three hours or so sleep each day between jobs and were living mainly on snack foods, Coca-Cola and coffee. The demands upon them had also increased over the preceding weeks as a result of them taking over some additional work for Jae Su Kim. Not surprisingly, the defendant was showing signs of stress and depression, as a result of the pressures of this work and of his constant sleep deprivation. Jae Su Kim, who saw him early on the morning of the offence, confirmed that he had appeared exhausted and had remarked that he had been too tired to take on some other jobs.

9 On 30 August, after finishing work, the defendant and his wife went to the shops at Dee Why, where they happened to meet the deceased and his partner. The meeting was amicable, and after some discussion, they went their own ways.

10 After arriving home Song Zhu Piao began to prepare a meal, after which they planned to retire for a few hours sleep before returning to work. In the meantime the deceased and his partner had found themselves accidentally locked out of their flat. Over his partner’s opposition, the deceased indicated that he intended to visit the defendant in order to be “reconciled”, and to offer him some work which he had been unable to accept, since he did not have a motor vehicle. This visit also coincided with the notice which had recently been given by Jae Su Kim, that he did not intend to continue the employment of the deceased and his partner.

11 The stress which each of the deceased and the defendant were under at this time, was also no doubt exacerbated by the fact that Jae Su Kim admittedly owed the defendant between $4000 and $5000, for work performed. An amount of about $6000 was also owed to the deceased. It had apparently been Kim’s practice over the preceding period, to pay each of them limited amounts sufficient only to cover their rent and living expenses, and to defer the bulk of their entitlements until a later date.

12 After the deceased arrived unexpectedly at the defendant’s flat, between 10 and 11 AM, it was decided that he would share a meal with them, and that they would purchase some alcohol to have with that meal. The defendant indicated that he had contemplated the purchase of only a small quantity of beer, but, at the insistence of the deceased, three six packs of 375 ml Cascade Premium bottles were brought home and then consumed.

13 By the end of the meal, the defendant and Song Zhu Piao were tired. They began to hint to the deceased that he should go home, although they suggested that they should get together, on the following day, for a meal. The deceased declined and indicated that he wished to stay, to continue their conversation, and drink the rest of the beer.

14 The conversation seems to have centred largely around the deceased’s concern with their employment and with his suggestion that he was planning to leave his wife.

15 The defendant remonstrated with the deceased in relation to these observations, most particularly in relation to the deceased’s plan to leave his wife, since he felt a “brotherly” obligation towards her. That was an obligation which had arisen out of their distant family relationship, and out of his parents’ request to assist her and the deceased, when they had first come to Australia.

16 By this time Song Zhu Piao said that the defendant was showing signs of exhaustion, was having difficulty keeping his head up, and was repeatedly suggesting that the deceased should go home, so that they could rest. At one point, he stressed this by going to the bedroom, removing his trousers and lying down briefly before coming back to the table.

17 After a while the deceased’s conversation became repetitive and more aggressive, insulting and offensive in tone and in content. He began to complain that the defendant thought himself to be superior, suggested that he was conspiring to have him dismissed, and made reference to the fact that they all had families back in China, and that those of the defendant and his wife were vulnerable. In this respect he repeated the reference which he had made, on another occasion, to having a younger brother with gangster connections, and a history of violence.

18 Over the four or so hours which had elapsed to this point, it would seem that one of the bottles of beer which had been earlier purchased, had been consumed by Song Zhu Piao, while the remainder had been shared approximately equally by the defendant and by the deceased.

19 The defendant said that he had become angry as a result of the deceased’s refusal to go home and lack of respect, and fearful, by reason of the threats as to the well-being, in particular, of his daughter back in China.

20 At about 2:30 PM the defendant and his partner again asked the deceased, who by this time appeared to have become very drunk and aggressive, to leave, but he refused to do so. As the tension escalated, it seems that the deceased jabbed his fingers at the defendant, and at some stage kicked him in the ankle, leaving a substantial bruise.

21 The defendant, who was well affected by alcohol and who was angry and tired, responded to the deceased’s actions by fetching two knives from the kitchen. He returned to the table and struck the deceased with considerable force to the side of the head with the flat of one knife, an act which he hoped might persuade him to leave. The force of the blow knocked this knife out of his hand, but he still held onto the other knife, which he then moved to his right hand.

22 A physical altercation followed, in the course of which the deceased seized the defendant by the shirt collar, and a struggle developed between them. It would appear that in the course of this struggle, which moved between several rooms and led to some damage to the fabric of the flat, the smaller of the two knives which the defendant had obtained from the kitchen, was used to stab the deceased in the abdomen.

23 The defendant has said, both to police and in his evidence, that he did not intend to stab the deceased with the knife, and that he did not know how the stomach wounds were caused.

24 The defendant saw that the deceased had blood on his clothing, but he said that the struggle between them continued, with the deceased maintaining his resistance to leaving the premises. Up to that point, he acknowledges, he had been very angry, although still in control of himself. However, when the struggle continued, he totally lost control of himself and picked up a golf club. Thereafter, it is accepted, he struck the deceased five times to the head, using two separate golf clubs, with sufficient force for the heads of the clubs to be detached, and for the shaft of one to be bent.

25 When the deceased was seen to be injured and to have collapsed, Jae Su Kim was telephoned for assistance. He telephoned Michael Lee, who in turn telephoned the 000 number for assistance.

26 While Lee did this, Jae Su Kim drove to the defendant’s apartment. On his account, by the time that he arrived, the defendant and his partner had left the premises. They say however that they were still there, but were encouraged by Kim to leave because there was nothing that they could do for the deceased, and because they had immigration problems. I see no reason to disbelieve them in this respect.

27 After leaving the premises, with some personal belongings, they went to an ATM where they withdrew $800 from the bank account. They then moved into new accommodation at Belmore, although they remained in contact with Michael Lee, who they met later that day to return the keys for some cleaning jobs, and also with Jae Su Kim.

28 They spoke to Hoy Sig Kim, a Pastor with the Korean Church, who urged the defendant to surrender himself to police. On 11 September 2002, police called to the premises and arrested the defendant, who they found hiding in the bushes outside, suffering from some minor injuries sustained when he jumped out of a window and which led to him being taken to hospital. His partner was also arrested. She was eventually convicted of the offence of concealing a serious crime and sentenced to a fixed term of imprisonment for six months. Immigration officials elected to arrest her outside the Court on the second day of these proceedings, and she has now either been deported or awaits such fate.

29 When interviewed by police on 12 September 2002, the defendant made a number of admissions concerning the stabbing and striking of the deceased.

30 In his evidence before me the defendant said that he had not followed the Pastor’s advice to surrender himself immediately, because he needed to continue working in order to pay out the debts, which he and his partner, and which the deceased and his partner, had incurred in arranging for their unlawful passage to Australia.

31 The deceased, who had been alive when taken to hospital, died of his injuries during surgery. At the post mortem examination by Dr Cala, he was found to have sustained two parallel stab wounds to the upper left abdomen, which passed through the stomach, the small intestine and left diaphragm, and which led to haemorrhaging from, inter alia, the splenic vein and artery, and the left hemidiaphragm.

32 Additionally, Dr Cala found that the deceased had suffered multiple lacerations to his head, a traumatic subarachnoid haemorrhage, and a bruise to the right upper back, injuries which were all consistent with him having been struck by an instrument such as a golf club.

33 His death was ascribed to the combined effects of blunt force trauma to the head and to the stab wounds. At committal Dr Cala said that, in his opinion, while both sets of injuries contributed to the death of the deceased, the head injuries would probably not have resulted in death, on their own.

34 Analysis of post mortem samples in relation to the deceased showed that his blood/alcohol level was 0.116 g/100 ml, his urine/alcohol level was 0.209 g/100 ml, and that his vitreous humour/alcohol level was 0.144 g/100 ml. Professor Starmer expressed an opinion, based upon the deceased’s assumed body weight, the number of beers which he had drunk, the time which had elapsed and the post-mortem findings, that his blood/alcohol concentration would have been in the range of 0.189 to 0.225 g/100 ml at the time of the incidents which led to his death.

35 He also expressed an opinion, based upon the body weight of the defendant, and the assumption that he had consumed eight 375 ml bottles of Cascade Premium beer over four hours, that his blood/alcohol concentration at the time would have been in the range of 0.116 to 0.204 g/100 ml.

36 The effects of such a concentration upon the defendant, Professor Starmer indicated, could have been exacerbated by the circumstance that he may well have had the genetically determined intolerance to alcohol, which is more common in North Asian populations than in Caucasian populations. Additionally he said, if he had been consistently working approximately 17 hours per day and sleeping for only three hours per day, as he claimed, then he would “almost certainly have been in a state of extreme, chronic fatigue”, which was only likely to have greatly exacerbated the effects of the alcohol which he had consumed.

37 The effects of alcohol, he explained, somewhat obviously, are that it impairs cognitive abilities, modifies demeanour and verbal responses, interferes with verbal and non-verbal communication between parties who have been drinking thereby increasing the chances of miscommunication and misinterpretation, and increases emotional lability. Where verbal and behavioural responses become inappropriately aggressive as a result of drinking, he added, the likelihood of violence is increased.

38 On any view, each of the deceased and the defendant was significantly affected by alcohol. That the defendant was significantly intoxicated, and may have suffered from the intolerance to alcohol mentioned by Professor Starmer, is also reinforced by the observations of him, which were reported by his partner and by Mr Lee, following the incident.

39 Dr Grunstein, an expert in sleep and respiratory medicine provided a report, in which he expressed an opinion, based upon the history of the defendant’s work schedule and sleeping times, that he would have been suffering sleep deprivation at the time of the offence. That condition, he said, leads to “impairment in performance loss of efficiency and deterioration in mood state, resulting in tension, depression, aggression, confusion, fatigue and loss of vigour”.

40 Additionally, he said “as sleep debt accumulates a person’s mood, motivations, attention, alertness, … become more negatively affected”, and logical reasoning is reduced.

41 It was his opinion that there was reasonable evidence, upon the history provided to him, that the “severe sleep loss exposure sustained by [the defendant] would have led to a mood disturbance and loss of control”. Similarly to Professor Starmer, he said that the “consumption of alcohol would be expected to exacerbate these effects”.

42 Ms Sunny Hong, who practices as a psychotherapist and clinical consultant, provided a report on the psychosocial and Korean cultural issues, which she saw as pertaining to the case. She made reference to the sense of obligation to the deceased and his partner, which the defendant had accepted, as a result of their family connections; the respect which the deceased should have afforded, but had not afforded, to the defendant as an older man; and to the assistance which the defendant had provided, at his own loss, in order to ensure that the deceased and his partner continued to have work. She also explained that it was customary for Korean men to drink alcohol if they needed to engage in a conversation that addressed difficult issues, such as strained relationships, and for the older man to listen to the younger man, and to bear with his drunken behaviour. She also made reference to the strong feelings of regret and remorse, which the defendant had expressed to her.

43 While she expected that the provocation offered by the deceased would have been managed well by the defendant in normal circumstances, it was the combination of alcohol, sleep deprivation and exhaustion, which, in her view, had led the defendant to lose control of himself and to erupt into violent behaviour.

44 Dr Lucas, a forensic psychiatrist, has also provided a report, which was prepared upon the basis of a two-hour interview, and the material in the prosecution brief, as well as the two reports just mentioned. It was his opinion that the defendant displayed no signs of any psychiatric disorder, or of any cognitive problems. On the contrary, he presented as a polite and affable man of good intelligence, who deeply regretted what had occurred and the impact on the families of those involved.

45 He considered that the effects of the defendant’s sleep deprivation and intoxication were highly relevant to an understanding of his state of mind at the time of the incident, and of his responses to the provocative behaviour of the deceased. He also thought that the cultural factors which he had discussed with Sunny Hong, and which I assume were the same as those expressed in the report which I have mentioned, were essential to an understanding of the way that the deceased’s conduct had been upsetting and provoking the defendant.

46 It was his view that the defendant’s mood, cognition and behaviour, had been affected by the interaction of severe sleep deprivation and his intoxication with alcohol, resulting in the ability to control his behaviour being markedly compromised. In combination, he said, these circumstances rendered him more vulnerable to respond as he did to the behaviour of the deceased, which seemed also to have been culturally inappropriate.

47 In order to assess the extent of the defendant’s objective criminality, it is necessary to determine the basis on which he is to be understood as having committed the offence of manslaughter. Additionally, it is necessary to take into account the factors mentioned in the new s 21A of the Crimes (Sentencing Procedure) Act 1999.

48 The Crown submitted that the case should be viewed as one in which all of the defendant’s acts, including the use of the knives and of the golf clubs, had been done with the specific intention of causing grievous bodily harm, although in circumstances giving rise to a defence of provocation.

49 Very fairly, it accepted that the defendant’s actions were not premeditated, that they were significantly contributed to by his sleep deprivation and by his consumption of alcohol, and that the behaviour of the deceased as an uninvited and intoxicated guest, who had become aggressive, who had made threats to the defendant and to his family, and who had refused to leave the premises, had been significantly provocative.

50 The Crown also very fairly accepted that the evidence of the defendant having an intention to cause grievous bodily harm was sparse, and was dependent upon inferences to be drawn from the acts themselves.

51 Mr Molomby SC for the defendant, submitted that the case should be regarded as one involving an unlawful and dangerous act, in relation to each set of injuries. He submitted that it was one in which the defendant’s objective culpability should be regarded as having been, in addition, significantly reduced by reason of the serious provocation offered by the deceased, the exhausted and sleep-deprived state of the defendant, and the fact that the impossible situation in which he found himself had been entirely brought about by the deceased.

52 As Street CJ said in R v Hill (1981) 3 A Crim R 397 at 400 at 402:

“It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act , 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.”

53 The present case is one that demonstrates the wisdom of these words, presenting, as it does, an almost unique situation. It does not necessarily follow that provocation/manslaughter is to be regarded as objectively more serious than manslaughter by an unlawful and dangerous act: R v Isaacs (1997) 41 NSWLR 374. Each case turns upon its own facts, and the extent of the provocation offered may be so extreme as to counter balance the fact an offender may have acted with the specific intent that would otherwise have left the crime as one of murder. Nevertheless, it is helpful to determine the precise basis for the offence for which the offender is to be sentenced.

54 I am satisfied, upon the evidence before me, that the stab wounds were occasioned without any specific intent on the part of the defendant. There was no admission that he used the knife with any specific intent to cause harm, and he has denied, on oath, having any such intent. He impressed me as a witness of the truth in this respect. I find that he produced the knives in response to the aggression and threats which had been offered by the deceased, and then struck him with the flat of the blade of one knife, in order to persuade him to leave the premises. No intent to cause grievous bodily harm could be inferred from that fact.

55 Thereafter, I am satisfied that there was a significant struggle between the two men, and that the abdominal injuries were caused as they grappled with one another and moved about the premises. The knife wounds were parallel and close together and Dr Cala accepted that the sharpness of the smaller knife, and the movement of the bodies of the men grappling together, while one held a knife, could have accounted for the wounds.

56 The production and continued holding of the knife by the defendant, while they struggled was, however, clearly an unlawful and dangerous act.

57 The position is somewhat less clear in relation to the golf clubs. Where one man strikes another forcibly and repeatedly to the head with a golf club, it is difficult to draw any inference, from that fact, other than that the former intended to cause the latter grievous bodily harm, at least in circumstances where he has some measure of self-control and appreciation of what is occurring. It is, in relation to this qualification, that the present case is to be determined, since the concern is with the subjective state of mind of the offender at the time of the relevant act or acts.

58 Leaving aside entirely the fact that the earlier knife wounds would of themselves have led to death, and that the head injuries were only a contributing cause, I have reached the conclusion that the defendant did not use the golf clubs with the specific intent alleged by the Crown.

59 I find that the deceased’s exhausted and sleep deprived state, the extreme provocation which had been offered by the deceased, and the effects of alcohol, which need to be taken into account in the manner provided by s 428C and 428E of the Crimes Act, left him in a position where he acted wildly, in a state in which he was totally out of control, and without forming any specific intention as to the result of his actions.

60 In these circumstances, I consider the case to be one that should properly be approached as one of manslaughter by an unlawful and dangerous act. Even if I am incorrect in that finding, there would not seem, here, to be any significant difference in the level of objective criminality, were the case to be approached as one of provocation/manslaughter. That follows from the very same considerations as those just mentioned. Additionally, there are the circumstances that the defendant was trapped in his own home by an uninvited visitor, to whom he felt obliged to provide hospitality, and with whom he had to share alcohol which he did not really want. He was prevented from having the sleep which he desperately needed, he was abused and threatened in relation not only to himself, but also in relation to his family in China, and he was then assaulted physically.

61 It has been customary, when dealing with provocation manslaughter cases, to have regard to the three matters which were identified by Hunt CJ at CL in Regina v Alexander (1995) 78 A Crim R 141 at 144, namely:

“(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence;
(2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and
(3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.”

62 Items (1) and (2) would weigh heavily in favour of reducing the objective gravity of the present offence, if it were to be considered as one of provocation/manslaughter. The provocation was extreme and the time between the provocation and the loss of self-control very short.

63 Similar reasons apply in measuring the defendant’s culpability for manslaughter by an unlawful and dangerous act, since I am satisfied that it was only because of the deceased’s provocation that the defendant committed such an act.

64 The aggravating factors identified in s 21A(2) of the Crimes (Sentencing Procedure) Act are confined to those mentioned in sub paragraphs (b), (c) and (g), namely, that the offence involved the actual use of violence and of a weapon, and that the injury and loss occasioned were substantial. However, since they are integral to the commission of the offence itself, being elements of it, they do not call for any additional punishment.

65 For these reasons, while the offence remains a serious one, for the reasons identified in Hill, and in the many subsequent cases involving manslaughter by an unlawful and dangerous act, or provocation manslaughter (see for example R v Bolt [2001] NSWCCA 487, R v Isaacs (1997) 41 NSWLR 374; R v Whalen NSWCCA, 5 April 1991), so far as it involved the taking of a human life, I am persuaded that this case is one which displays exceptional circumstances that place the defendant’s objective criminality at a relatively low level.

Subjective circumstances

66 The defendant, who is now aged 33 years, was born of Korean parents in the Yuen Beun area of Northern China, which has a large population of Koreans, being descendants of those who had taken refuge there during the occupation of Korea by Japan at the turn of the 20th century.

67 He is the elder of two brothers, who qualified as an electrician after completing compulsory military service. He was married in China, but is separated from his wife and is waiting for the finalisation of their divorce. He has, from that marriage, one daughter, now aged 12 years. His parents, who are still alive and resident in China, are not working, his father having retired from his previous position as an electrician. His family background was conservative, stable and happy, and he had no health problems in China, save for a congenital back problem.

68 He said that he came to Australia on a false Korean passport, which was obtained while in transit in the Philippines, to support his daughter and his parents, an obligation which fell upon him as the eldest child of the family, and to improve the quality of his life. In order to finance his unlawful passage through those engaged in the evil trade of people smuggling, he was obliged to borrow the equivalent of about AU $30,000, which loan was secured over the family home. It is likely that this security will now be forfeited, with consequential harm to his parents.

69 Upon his arrival in Australia he sought a protection visa but this was refused. For reasons which are not apparent, this decision was not followed by deportation, and he managed thereafter to remain in the country as an illegal immigrant. A significant part of his motivation to do so was attributable to the need to repay the debt, which he could never have done while living and working in China.

70 He made ends meet through a variety of jobs, before obtaining, after about 12 months, regular cleaning work through several Korean head contractors. He sent most of his earnings back to China to pay off the loan and to support his family. By all accounts, as established by the evidence before me, including that of Michael Lee, Jae Su Kim and Ok Jing Choi, he was regarded as reliable, truthful, well mannered, and generous and as a very good worker. He had not been known to display aggression or to drink to excess.

71 Pastor Hoy Sig Kim, who has known the defendant since March 2001, said that he regarded him as a very gentle and kind person, who had been helpful to others. He said that he could not have imagined that the present offence could have happened, which I take to mean that he regarded it as totally out of character. He confirmed that the defendant had said to him, when advised to hand himself in, that he would do so after he had paid out the debts of the two families, which they had incurred in coming to Australia. This I take to be a sign of a man of honour, rather than as an excuse to avoid justice.

72 As I have indicated, he has no psychiatric or personality disorder. He appears to be a man of some intelligence, as well as a person who has shown himself to be responsible, helpful, reliable and cognisant of his social and customary obligations. He has no other offences listed in his antecedents, and the only blemishes, on his otherwise good character, are this offence and the fact that he entered, and remained in, this country illegally. His only known physical illness, apart from his back condition, is a form of liver complaint, which it is agreed has been diagnosed as Hepatitis C, and for which he is receiving treatment within the prison medical service. Although a potentially serious condition, it is not one that would occasion any adjustment to the sentence which I would otherwise consider appropriate.

73 I accept that he is remorseful and has considerable contrition for his actions. This has been demonstrated by his observations to each of the experts who have assessed him, by his demeanour during the ERISP, by his evidence before me, and by the fact that he has been prepared to assume responsibility for the debt which was owed by the deceased to those who had lent him money for his passage to this country.

74 He faces the inevitability of deportation, and the prospect of a somewhat difficult return to China, having regard to the money which is owed, not directly to a people smuggler, but to an organisation which might satisfy itself by the sale of the family home, and also having regard to the possibility of revenge at the hands of the family of the deceased.

75 He speaks some Mandarin in addition to Korean, but has only limited English. He will be isolated, both linguistically and otherwise, in custody, since once his de facto partner has been deported, he will have no family or friends in this country. He has minimal prospects of receiving any family visits. He is not of a criminal persuasion, and is unlikely, as a result, to form much by way of any meaningful association with those fellow countrymen who are serving sentences for organised criminal activity. He will presumably be able to receive some support from Pastor Kim, but the nature of his situation, including the separation from his partner, is such that he will serve the sentence in somewhat more onerous conditions than other offenders. While that circumstance has been regarded as having almost no weight in relation to those who come to this country specifically to commit a serious crime, such as the importation of drugs, somewhat different considerations apply in the present case, such that it can be given some weight: see R v Huang (2000) 113 A Crim R 386 and R v Kanj [2000] NSWCCA 408.

76 On any view this case is wholly exceptional and could well answer the description of a tragedy of considerable proportions. An extremely hard-working young man of otherwise good character, who would almost certainly have been a worthwhile citizen of this country, had he followed or been permitted to follow the correct channels for immigration, has offended in circumstances that were entirely beyond his control.

77 For the reasons already mentioned, I regard his objective criminality to fall towards the lower level of that involved in the offence of manslaughter, which, no matter how committed, remains a very serious offence so far as it involves the felonious taking of a human life. His subjective circumstances are entirely favourable, and I am satisfied that he is not a person who is likely to reoffend in any way.

78 If he were allowed to continue to live in this country, his prospects of rehabilitation could only be assessed as extremely high. However, by reason of his immigration status, and the debts which he owes in China, both personal and financial, his future is as uncertain as it is bleak.

79 The mitigating circumstances, which I must take into account, in accordance with s 21A(3) of the Crimes (Sentencing Procedure) Act are those identified in sub paras (b), (c), (e), (f), (g), (h), (i), and (k). In that latter regard, the plea, as I have indicated, should be regarded as having been an early plea, and to have had a significant utilitarian value. The defendant is entitled, in respect of it, and in respect of the contrition, to the benefit of a discount towards the upper range of that accepted for early pleas, in accordance with s 22(1) of the Act.

80 The fact that the defendant will almost certainly be deported, does not mean that he should be deprived of the potential opportunity for release on parole: R v Shrestha (1991) 173 CLR 48.

81 Tai Zhu Yu, for the manslaughter of Jang Sig Seo, also known as Sung Il Park, I sentence you to imprisonment for 5 years to date from 11 September 2002. I fix a non-parole period of 2 years and 6 months, also to date from 11 September 2002, and to expire on 10 March 2005, which will be the earliest date on which you will be eligible for release on parole. I have significantly reduced the non-parole period, as I find that special circumstances exist in relation to the more onerous nature of your imprisonment, which will arise inter alia from your cultural, linguistic, and familial isolation.

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Last Modified: 12/05/2003