Regina v Yun Young Ko
[2000] NSWSC 1130
•12 December 2000
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 KoJUDGMENT 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 81DECISION: Ref para 44
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONKIRBY 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)5 A number of witnesses were called relevant to provocation. It is, therefore, necessary to make findings in respect of their evidence.
“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.”
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 hardship to the family. Eventually her father’s name was cleared.
7 During the period of hardship, Ms Ko became deeply involved in the Christian church at Pusan, where she lived. She there met Eun-Young Ha, then a child, she being the sister of the deceased. She also met the deceased. She formed a friendship with Eun-Young Ha.
8 Ms Ko attended university where she qualified as a nurse in 1995. Between March 1995 and October 1996, she worked at the Wallace Baptist Hospital. Her job was very demanding. She decided to come to Australia for one year, both as a holiday and to improve her English. She arrived in April 1997.
9 Ms Ko was encouraged by the church to make contact with Eun-Young Ha and her brother, they having moved to Australia. She did so. She went to live with a family in Gosford, where she undertook a course in English. Having completed that course, she moved to Sydney. Ultimately, in September 1997, Eun-Young Ha persuaded Ms Ko to move into her flat at Berala. The flat was also occupied by her brother, the deceased.
10 Ms Ko alleges that, whilst at the flat, she was raped by the deceased. The deceased was, at the time, affected by alcohol. The Crown challenged Ms Ko’s account. However, I found the evidence given by Ms Ko compelling. I accept that it is accurate. I also accept that the effect upon her was profound. In Korean culture, the preservation of virginity before marriage is of fundamental importance. Ms Ko gave the following evidence, which I likewise accept: (T.52/53)
“A. I tried to live my life righteous towards God, and also not to disappoint my parents and my family; and I tried to be faithful to myself but that one incident was such a big thing to me.”
11 Ms Ko, in part, blamed herself for the incident. She recognised that it was a mistake for her to move into the flat. Soon after, she moved out. She felt deeply ashamed. She said nothing to her family, and nothing to the deceased’s sister. However, curiously, she did continue to see the deceased’s sister and, indeed, the deceased himself.
12 Ultimately, in December 1997, Ms Ko found that she was pregnant. The deceased demanded that she terminate that pregnancy. Ms Ko said, and I accept, that he threatened her if she did not do so. With the assistance of a female friend, she underwent an abortion at Gosford. She paid for the abortion. She believed that she had thereby committed “murder in front of God”.
13 In April 1998, Ms Ko returned to Korea. Her family noticed that she was very subdued. She believed that she would never marry. It would not be fair to any man who may wish to marry her.
14 After her return to Korea, however, the deceased telephoned her a number of times. He told her that now that she was gone he missed her. He began to telephone every day. Ms Ko said that her fear of him began to subside. In July 1998, the deceased proposed. Ms Ko accepted. Ms Sunny S Hong, a psychologist, explained Ms Ko’s motivation in these terms:15 Ms Ko returned to Australia on 1 November 1998. Once more she moved into the accommodation occupied by the deceased and his sister at Berala. The deceased and Ms Ko returned to Korea on 17 December 1998 for the wedding. They were married on 26 December 1998, returning to Australia in early January 1999.
“Furthermore, Yun Young’s attitude after being raped is also very culturally based. Many young Korean women hold the view that they need to be a virgin before marriage. Yun Young’s sheltered life and her religious beliefs have further entrenched her belief that she needed to marry her husband after she was sexually assaulted by him.
Another disturbing aspect of Yun Young’s attitude is that she was aware of her husband’s dysfunctional family background, but she seemed to have taken this into account in order to rescue her husband.”
The Marriage
16 The marriage between Ms Ko and the deceased was profoundly unhappy. There were many problems. Ms Ko asserts, and I accept, that their sexual life was attended by significant brutality and degrading conduct on the part of the deceased. She was, amongst other things, burned by cigarettes placed near her breasts. The marks remain.
17 There were other problems besides. The deceased was a gambler. Money was short. The telephone and other services were cut off from time to time because bills remained unpaid. Yet the deceased enjoyed entertaining. It was not unusual for him to entertain four or five of his friends at his home. Ms Ko was expected to cook and clean for them and the entire household. She regarded herself as a slave.
18 The problems were aggravated by her relationship with the deceased’s sister, Eun-Young Ha. The deceased and his sister were very close. His sister was somewhat resentful of Ms Ko, and Ms Ko jealous of his sister.
19 Ms Ko was also isolated. She did not work in an external job. She was in a foreign country, without her family. She had been counselled by her family in Korea against the marriage. She therefore felt obliged to pretend that the marriage had been successful, and that she was happy. She imparted her unhappiness only to her diary, and then censored her remarks because she believed that her husband read her diary.
20 In April 1999, Ms Ko again became pregnant. She wanted the baby. She recognised that it may bring her some happiness. However, the deceased once more insisted that the pregnancy be terminated. For a second time she underwent an abortion. It appears to be common ground that her mood deteriorated significantly as a consequence. Her diary contains repeated references to babies crying.
The Incident
21 A week before the incident an argument took place between the sister of the deceased and Ms Ko. Although they apologised to each other after the argument, they hardly spoke in the week which followed.
22 On Sunday 29 August 1999, Ms Ko said to her sister-in-law these words:
“I’m going to church, and if this doesn’t work, I might see a psychiatrist.”
23 The deceased was most unhappy about Ms Ko going to church. He had no wish to attend church. He did not object to her attending a western church. However, he regarded her attending the Korean Christian church alone as a reflection upon him. Ms Ko, nonetheless, went to church. She made arrangements through the deceased’s cousin to be driven. She was driven home by the deceased’s uncle.
24 Upon her arrival home, the deceased reacted angrily. He said that she should sleep with his uncle. An argument ensued. Ultimately Ms Ko sought her husband’s forgiveness. He refused to forgive her, and indeed, kicked her. He said he had no wish to see her again. He said that he wanted a divorce. Ms Ko described her feelings at the moment to Dr Westmore, in these words:
“I didn’t want to go back to Korea and I didn’t want to live any longer. I knew that I had to pack to move out but I felt that I would rather die.”
25 That evening, another person staying in the townhouse, Ms Lee, heard Ms Ko weeping in her bedroom. She went to her assistance. Ms Ko was seated on the carpet with a jar of poison next to her. Ms Lee comforted her. The deceased then entered the bedroom and Ms Lee withdrew. He reproached her, saying that the poison would not kill her. According to Ms Ko, whom I accept, the deceased said that if she wanted to die she should cut her wrists using the tile cutter, referring to a machine which he used in his work as a tiler.
26 The deceased’s sister provided a statement in which she said that, shortly before midnight on 29 August 1999, she saw Ms Ko enter the garage. She then saw her sister-in-law remove the tile cutting machine, which was taken into the house. An attempt was made to start the machine. However, it would not start.
27 Ultimately Ms Ko went upstairs to pack a suitcase. Within the suitcase there was a knife. Ms Ko explained that she had purchased the knife some time earlier in order to end her own life should her marriage fail. She went downstairs. She said to her husband that she was going to kill herself. He appeared unconcerned. At some point she said the following words:28 The deceased then began to mock her. He said that she would not have the courage to kill him. He exposed his neck, as if to invite her to do so. She then plunged the knife. She told the police this: (Q.149)
“Either I will kill myself, or I will kill you.”
“… I was really tired, and I didn’t want to live any more and I, yeah, I thought, I’ve got to kill my husband, I’ve got to kill myself too, but of course I couldn’t kill myself.”
29 The autopsy disclosed seventeen stab wounds, some deep penetrating wounds to the chest, neck and head. Ms Ko says that she now had no recollection of having repeatedly stabbed her husband.
30 Ms Ko told the psychiatrist who interviewed her that, at the time of stabbing, she could hear a baby crying. She still had the knife in her hand when an ambulance officer arrived at the flat some time shortly after 1.30 am on 30 August 1999. When Ms Ko spoke to a police officer at approximately 2.10 am, she said these words:
“He killed my baby, I can’t explain.”
Arrest and Custody
31 Ms Ko was immediately arrested. She was taken into custody, where she has remained. She was identified as a significant risk of suicide. She, in fact, attempted suicide by repeatedly banging her head against a prison wall. She was thereafter provided with anti-depressant medication, and has improved.
32 Ms Ko said that she expected to be condemned to death for her crime. She had, in any event, nothing to live for. Dr Michael Giuffrida, psychiatrist, expressed the following view:33 The view of Dr Westmore was expressed in similar terms. He said this:
“In relation to the offence, I am of the opinion that Ms Ko was severely depressed at the time of the crime, probably with a major depressive illness of melancholic depth and style. I believe that Ms Ko’s severe depressive illness, whilst not psychotic in nature, represents an abnormality of the mind that is inherent and caused a severe defect of her reasoning and impairment of her judgment which in turn contributed substantially to the killing of her husband. I therefore would consider that the defence of diminished responsibility is open to her. She remains in my view that to the present time still considerably traumatised and displaying very significant symptoms of a chronic depression and will require long term antidepressant treatment and psychotherapy.”
34 Dr Yvonne Skinner, psychiatrist, qualified by the Crown, agreed. Dr Skinner added the following:
“On the history provided I think it would be reasonable to indicate that a depression arising from such chronic stress of the type she describes was of the quality and magnitude to qualify for consideration as an abnormality of mind. Her condition, at the time of the stabbing would have been such in my view as to substantially impair her capacity to know that she ought not to do the act. At the time of the stabbing it is likely that she would not have given consideration to either the legal or the moral issues relating to the stabbing.”
“There has been some improvement in her condition but she continues to suffer from depressive symptoms. She requires continuing treatment with anti-depressant medication. Ms Ko is unlikely to reoffend and does not present a risk to the community. However, there is a low but unpredictable risk of suicide.”
Has the Crown Excluded Provocation?
35 There can be no question that the stabbing of the deceased was the consequence of Ms Ko having lost her self control. It is also apparent that it was the behaviour of the deceased towards Ms Ko which caused that loss of self control. That behaviour extended beyond the events of 29 August 1999. It included the brutality of the deceased towards Ms Ko in the course of their relationship, as I have described. Although my mind has waivered on the final element of provocation, I am inclined to the view that the Crown has not excluded, beyond reasonable doubt, that the conduct of the deceased was not such as could have caused a person in the position of Ms Ko to have so far lost self control as to have formed an intention to kill, or cause grievous bodily harm.
36 In terms of sentence, therefore, the case falls to be assessed upon the basis of both substantial impairment by abnormality of mind, and provocation.
The Subjective Case of Ms Ko
37 Ms Ko led an exemplary life before this incident. Since her incarceration she has been a model prisoner. She occupies a position of trust within the gaol. She has pursued an external course in bible studies.
38 There is no doubt that her incarceration has been the more difficult because of her isolation from her family. Her family, of course, remain in Korea. She saw her mother and sister for the first time since her arrest, when submissions were made on sentence.
39 I have no doubt that Ms Ko is genuinely remorseful. I entertain no fear that she will offend again.
40 The maximum penalty for manslaughter is twenty-five years imprisonment. Gleeson CJ, in R v Blacklidge (unreported, CCA, 12 December 1995) made the following remarks in the context of manslaughter by reason of diminished responsibility: (at 4)
“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402).”
41 The use of a knife is a circumstance of aggravation. A young man lost his life. However, the provocation by the deceased, and the substantial impairment of Ms Ko by reason of an abnormality of mind, are both significant extenuating circumstances.
42 Having accepted that Ms Ko is unlikely to offend again, it is unnecessary that the sentence should operate as a personal deterrent. Having also accepted that Ms Ko was, at the relevant time, suffering from an abnormality of mind, the matter is not one suitable for a sentence which will serve as a general deterrent (see R v Scognamiglio (1991) 56 A Crim R 81 at 86).
43 Ms Ko is plainly in need of on-going psychiatric care. In these circumstances, I find that there are special circumstances (s44(2) Crimes (Sentencing Procedure) Act, 1999). Ms Ko has been in custody since 30 August 1999. Her sentence should date from that time.
44 YUN YOUNG KO, I sentence you to imprisonment for 4 years with a non-parole period of 18 months. Giving credit for time served, and calculating from the date you went into custody, namely 30 August 1999, you will be eligible for release on parole on 28 February 2001. Your sentence will expire on 29 August 2003.
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