Regina v Yun Young Ko - [2000] NSWSC 1130

CITATION: Regina v Yun Young Ko [2000] NSWSC 1130

CURRENT JURISDICTION:
Criminal Division

FILE NUMBER(S): SC 70037/2000

HEARING DATE(S): 20/11/00

JUDGMENT DATE: 12 December 2000

PARTIES :

Regina
Yun Young Ko

JUDGMENT OF: Kirby J

COUNSEL : D Frearson (Crown)
Ms L Flannery (Acc)

SOLICITORS: David Vautin - DPP (Crown)
Narelle Marshall - LAC (Acc)

CATCHWORDS: Sentence - Manslaughter - Provocation and substantial impairment

LEGISLATION CITED: Crimes (Sentencing Procedure) Act, 1999 - s44(2)

CASES CITED: Savvas v The Queen (1995) 183 CLR 1
R v Pilley (1991) 56 A Crim R 202
R v Low (1991) 57 A Crim R 8
R v Blacklidge (unreported, CCA, 12/12/95)
R v Scognamiglio (1991) 56 A Crim R 81

DECISION: Ref para 44

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Tuesday 12 December 2000

70037/00 - REGINA v YUN YOUNG KO

JUDGMENT ON SENTENCE

1   HIS HONOUR: On Monday 20 November 2000, Yun Young Ko was indicted for the murder of Shin Woong Ha. She pleaded not guilty to murder, but guilty of manslaughter. The Crown accepted that plea. It did so upon the basis that Ms Ko was suffering from substantial impairment due to an abnormality of mind.
2   It remains for me to determine the facts (in a manner consistent with manslaughter), and to pass sentence. The facts which must be determined are those relevant to the sentencing discretion (Savvas v The Queen (1995) 183 CLR 1). Where the facts are adverse, they must be proved beyond reasonable doubt. Matters in mitigation may be proved on the balance of probabilities (R v Pilley (1991) 56 A Crim R 202, per Finlay J at 203).
3   Here, as mentioned, it was common ground between the Crown and the defence (and the experts retained by each) that, at the time of the offence, Ms Ko was substantially impaired by reason of an abnormality of mind. I will refer to the expert evidence shortly.
4   However, it was said on behalf of Ms Ko that the Crown could not exclude provocation. Were there both provocation and substantial impairment, they would operate together to reduce the objective seriousness of the offence. Lee CJ at CL (with whom McInerney and Sharp JJ agreed) made the following remarks in R v Low (1991) 57 A Crim R 8: (at 19)

“Had the element of diminished responsibility not been present at all and had the matter gone forward on the footing that the verdict was a verdict of manslaughter on the ground of provocation, it would be my view that such a sentence would need to be greatly increased.”

5   A number of witnesses were called relevant to provocation. It is, therefore, necessary to make findings in respect of their evidence.

Background

6   Ms Ko was born in Korea on 15 February 1974. She was the second youngest of five children. While still quite young, a friend of the family perpetrated a fraud in her father’s name. This caused financial…

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 Regina v Yun Young Ko

Details

AGLC: Regina v Yun Young Ko [2000] NSWSC 1130
Case: [2000] NSWSC 1130
Decision Date: 12 December 2000

CaseChat Overview and Summary

In Regina v Yun Young Ko, the defendant was charged with the manslaughter of her husband following a violent incident. The case came before the court to determine the appropriate sentence for the defendant, taking into account the mitigating factors of provocation and substantial impairment of her mental capacity. The court had to consider the severity of the crime, the defendant's history, and the impact of the mitigating factors on her culpability.

The legal issues before the court involved interpreting the relevant provisions of the Crimes Act, particularly those concerning the sentencing of manslaughter cases where provocation and substantial impairment of mental capacity were raised as mitigating factors. The court had to assess whether these factors sufficiently reduced the defendant's culpability to warrant a lesser sentence than would otherwise apply for manslaughter. This involved examining the specific circumstances of the provocation and the extent of the defendant's impairment.

The court found that the defendant's actions were influenced by significant provocation, which played a substantial role in her decision-making. Additionally, the court acknowledged that the defendant suffered from a substantial impairment of mental capacity at the time of the incident. These factors, the court concluded, significantly mitigated her culpability. The court considered these factors in tandem with the principles of justice and the need for deterrence and denunciation. Ultimately, the court determined that while the crime was serious, the mitigating factors warranted a sentence that reflected the reduced culpability of the defendant.

The final orders of the court were that the defendant be sentenced to a period of imprisonment, taking into account the mitigating factors of provocation and substantial impairment. The exact term of the sentence was determined to be appropriate after considering the principles of justice and the specific circumstances of the case. The court's decision balanced the need for punishment with the mitigating factors, resulting in a sentence that reflected the reduced culpability of the defendant.

Orders