R v Shim

[2016] NZHC 1912

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-019-6611 [2016] NZHC 1912

THE QUEEN

v

SANG KYU SHIM

Hearing:	17 August 2016
Appearances:	R G Douch for Appellant M Bates for Defendant
Sentenced:	17 August 2016

SENTENCE OF CLARK J

Solicitors:

Crown Solicitor, Hamilton

R v SHIM [2016] NZHC 1912 [17 August 2016]

[Addendum:  Mr Douch confirmed that the alternative charges are to be withdrawn. Accordingly, I record the formal withdrawal of charge two, wounding with intent to cause grievous bodily harm, and charge three, attempted murder.]

[1]      Mr Shim, you appear for sentence today having pleaded guilty to one charge of attempted murder and one charge of wounding with intent to cause grievous bodily harm.1

[2]      An agreed summary of facts was tendered on your guilty pleas.  While I do not need to recite that summary I do need to refer to the factual background and to those facts which particularly influence and relate to the sentence I will impose today.

Facts

[3]      One of the victims in this matter is your former wife who you married on

18 September 2014.  You had been resident in New Zealand for 21 years.  Ms Yoo was a recent immigrant to New Zealand.  The two of you parted when your marriage broke down.

[4]      By late 2015 you had come to believe that your estranged wife had formed a relationship with Mr Koh, your long-term friend.

[5]      On the afternoon of 21 November 2015 you were driving and you came across  Mr Koh who  was  returning to  his  home.   You  followed  him  home  and confronted him at his address.   Mr Koh’s two daughters, aged 19 and 15, and his sister  were  inside.    You  spoke  with  Mr  Koh  about  his  relationship  with  your estranged wife and during this time you became angry.  You took from your jacket pocket a metal multi-tool and began to strike Mr Koh with it.  He was struck around his neck, chest and shoulder area several times and was severely injured.  At a later interview you apparently revealed that you had used the pliers in the multi-tool to

assault Mr Koh.

1      Crimes Act 1961, s 173 and s 188(1).

[6]      Mr Koh attempted to flee and seek assistance at a neighbouring property. You chased him into the garage of this property and caught him there.  There was a further struggle on the garage floor and again you stabbed Mr Koh several times.  He managed to obtain possession of the multi-tool and broke free and ran into the neighbouring  house.    You  returned  to  your  vehicle  and  quickly  left  the  scene. Mr Koh’s injuries were extensive.   I shall return to these.   He was admitted to hospital on the day of the attack and discharged nine days later.

[7]      You drove from Mr Koh’s address to Ms Yoo’s.  You took from your vehicle a wooden-handled corkscrew and set about finding a way into the house.   You entered through an unlocked side door.  Ms Yoo was home with her children, aged 11 and 9. You went to her bedroom and found her lying on her bed.

[8]      You said that she called out to her daughter to phone Mr Koh and that angered you.  You began stabbing her upper body.  The 11 year-old girl interrupted your attack.  You said to Ms Yoo that you would spare her because you wouldn’t “do this to [her]” in front of the children.

[9]      You ceased your attack and told Ms Yoo she should go to the hospital.  You carried her to your vehicle and drove her to the Accident and Medical Clinic.  She said that as you drove you told her that you had planned to kill Mr Koh and her before handing yourself into the Police and dying. You deny saying this.

[10]     Ms Yoo suffered superficial stab wounds to her shoulders, arms and buttocks. She did not require admission.  You admitted to staff that you were responsible for the injuries and you were arrested at the clinic.

Sentencing Act 2002

[11]     In sentencing you I am required to give effect to the purposes and principles of sentencing.  Of particular relevance today is the need to hold you accountable for the harm done to your victims and the community by your offending.   Society denounces such conduct.

[12]     The sentence I impose must be broadly consistent with other sentences in respect of similar offenders committing similar offences.

[13]     I will take into account the information provided to the Court concerning the effects on the victims and I will also take into account particular circumstances relating to you.  Your rehabilitation and reintegration are relevant to the sentencing exercise.   Finally, I must impose the least restrictive outcome appropriate in the circumstances.

Starting point

[14]     The first step in the sentencing process is to identify the appropriate starting point.

[15]     There is no guideline judgment for attempted murder but I agree with both counsel that the Court of Appeal’s analysis in R v Taueki2 is relevant.  In Taueki the Court of Appeal established sentencing bands for grievous bodily harm offending. Band one is for offending at the lower end of the spectrum and attracts three to six years imprisonment.   Band two will be appropriate for grievous bodily harm offending marked by two or three of the features which aggravate the seriousness of

the offending and criminality.  Offending in band two will attract five to 10 years imprisonment.

[16]     Band  three  encompasses  serious  offending  which  has  three  or  more aggravating features making the offending particularly grave.  Band three offending will tend to attract nine to 14 years imprisonment.

Crown submissions

[17]     The Crown submits that the aggravating features of your attack on Mr Koh are that it was a prolonged attack involving a pursuit to recommence the assault after the victim fled and coupled with serious injuries.  The Crown places the offending at

the top of the Taueki band two or the bottom of band three.  On that basis the Crown

2      R v Taueki [2005] 3 NZLR 372 (CA).

submits an appropriate starting point would be in the range of nine to 10 years imprisonment.

Defence submissions

[18]     Mr  Bates,  has  taken  a  different  analytical  approach  to  the  Crown.    He submitted that both offences that is, the attack on Mr Koh and then on Ms Yoo, occurred on the same day and could be considered part of one series of events.  They are both  connected in  terms  of the relationship  dynamics  between  you  and  the two victims.  He submitted a starting point on the charge of attempted murder might be around eight years with an overall starting point of imprisonment in the range of nine to 10 years for both charges.

Analysis

[19]     The approach Mr Bates suggests is available in some cases but I do not consider that is the proper approach in your circumstances.  I agree that there is a connection in terms of your relationship to both Mr Koh and Ms Yoo but the two assaults were discrete incidents with distinct mitigating and aggravating features. The weapons you used were different, the nature of the attacks and violence involved was  different  for each  and  your  response to  each  of the  victims  was  different. Therefore it appears to me that the proper way to proceed is to sentence you in respect  of each  charge  and  then assess  at  the  end  of that  process  whether any adjustment is needed to ensure the overall sentence is not disproportionate to your offending.

[20]     Dealing first with the attempted murder charge, the following aggravating factors are present:

(a)       Extent of the violence

Your counsel accepts that Mr Koh was struck several times around his neck, chest and shoulder area but submits the attack was brief.  There is no evidence about the duration of the attack but to have inflicted the

injuries which I have seen in the photographs with such an instrument as you used suggests a serious level of violence and force and determination.

(b)      Premeditation

Your counsel submitted that you did not initially intend or anticipate violence.  The suggestion is that this was an impulsive act of violence. I take the view that if it was impulsive, it was only up to a point. There was a sustained attack. At the point when Mr Koh ran from his address to seek refuge in a neighbouring property you pursued him and continued the attack and stabbed him several times.  The fact you did not form a murderous intent prior to confronting Mr Koh but only in the moment of anger when you launched your attack, does not detract from the fact that there was an element of premeditation in your pursuit of Mr Koh.

(c)       Serious injury

The injuries are detailed in the summary of facts.  It is sufficient for me to note that Mr Koh suffered multiple stab wounds to both the front and back of his upper chest, neck and shoulders; injury to the external  jugular vein,  injury to  the innominate  or subclavian vein beneath his collar bone and injury to facial nerves and muscles and tendons in his neck.   As I have noted he was hospitalised for nine days. Your counsel does not dispute that the injuries were serious.

(d)      Use of weapons

Whether or not the production of a weapon was opportunistic, the fact is, a weapon was used in the attack.

(e)      Attacking the head

Flavell v R3  was cited as an example of a case in which the Court determined that it was wrong to count the use of a weapon and an attack on the head as separate aggravating factors.  That case involved a single baseball hit to the head.  That is not what happened in your attack on Mr Koh.   He suffered multiple blows and injury to facial nerves and neck.   I consider that the aggravating feature normally associated with an attack to the head existed here because of the vulnerability of Mr Koh’s neck and face when targeted with a weapon capable  of  slicing  in  the  way  that  your  multi-tool  pliers  sliced Mr Koh.

(f)      Home invasion

I accept Mr Bates’ submission that the confrontation occurred outside the victim’s home, in the street.  As such s 9(1)(b) of the Sentencing Act (unlawful entry into or unlawful presence in a dwelling place) is not engaged.

[21]     It has been submitted on your behalf that the Court should have regard to a degree of provocation due to the circumstances leading up to your offending.  I have no doubt that you felt emotionally betrayed by your wife when you had made every effort to make her happy and sustain your marriage.   As the Department of Corrections  report  noted  you  had  “a  great  deal  of  emotion  invested  in  your marriage”.   And I am prepared also to accept, particularly in light of the many references  which  I  have  read,  that  you  experienced  an  uncharacteristic  loss  of control. The report writer wrote:

The current collection of offences may be viewed as a crime of passion, driven solely by extreme jealousy and grief due to the disclosed loss of Mr Shim’s relationship and family.

3      Flavell v R [2011] NZCA 361.

[22]     In some circumstances an “impulsive act of violence without premeditation or deliberation” may have a mitigating effect on the sentence.4     But a ‘bubbling over’, as your counsel put it, of emotions of jealousy and frustration and rejection is not provocation.   As the Court of Appeal observed in Taueki: “It is not enough simply to claim to have been incensed by the actions of the victim or another … ”. You said you became furious when you attempted to speak to Mr Koh and he was

dismissive.  That was not serious provocation operating as a cause of the violence which you inflicted. And in any event the serious provocation would need to remain an operative cause of the violence throughout the commission of the offence.

[23]     Your attack on Mr Koh falls within the upper end of band two indicating a starting point of nine years imprisonment.  I have considered the cases which your counsel has drawn to my attention in his submissions.   I have also considered the cases which Mr Douch has summarised in his written submissions for the Crown.

The case I find to be most comparable is R v Kamal.5  In that case the offender

stabbed his wife, who he suspected of having an affair, with a 30cm long chef ’s knife.   She suffered deep lacerations to her forearms and puncture wounds to her abdomen and chest and a laceration to her head.  She underwent emergency surgery for laceration to her liver.  The aggravating features were the extent of the violence, premeditation, extent of injuries, use of a weapon and the vulnerability of the victim. The Judge selected a starting point of nine years.   As is to be expected there are differences between the circumstances of that attempted murder and yours but I am satisfied that a starting point of nine years is appropriate and broadly consistent with

other cases.6

[24]     I turn now to personal mitigating factors.  The first is your guilty plea.  The Crown submits that a 15 per cent reduction is appropriate because your guilty pleas were not made at the first opportunity.   I accept the submission made by your counsel that there had been difficulties in your relationship with your first lawyer

and when present counsel was instructed the guilty pleas were entered after a few

4      R v Radich [1954] NZLR 86 (CA).

5      R v Kamal [2014] NZHC 698.

6      R  v  O’Kane  HC  Dunedin  CRI-2009-002-190, 2  April  2009  per  Lang  J;  R  v  Ae  [2016] NZHC 965; and R v Kamal, above n 5.

weeks.  Also there was some uncertainty as to the charges you would face.  A 20 per cent discount from the starting point is appropriate.

[25]     Your counsel submits that there is evidence of your remorse which should be taken into account.  The Crown disagrees that genuine remorse can be identified in the pre-sentence report.  The Crown makes the distinction between true remorse and your deep  shame for  your offending  and  how  this  impacts  upon  you  and  your position in the community.  The pre-sentence report actually refers to your “unique statement of remorse” saying “I am very sorry to the New Zealand Government, I want to contribute to New Zealand”.  I believe Mr Bates has a point when he submits that account must be taken of the fact that English is your second language and you have difficulty at times expressing yourself.  It should not be assumed that because you described yourself to the probation officer as deeply ashamed that this does not also mean remorseful and sorry for the harm you have caused the victims.

[26]     There is your acknowledgment of the need to rehabilitate.  Your letter refers to “spending the difficult time in prison with repentance and self-examination”.  The Department of Corrections report describes your excellent record while in custody. You have undertaken and completed all rehabilitative programmes offered to you to date.   I propose to give you a credit of seven months to reflect those mitigating factors.

[27]     These  discounts  result  in  a  sentence  of  six  years  and  seven  months imprisonment on the charge of attempted murder.

[28]     I turn now to the charge of wounding with intent to cause grievous bodily harm.  The Crown acknowledges that the offending against Ms Yoo was less serious. She did not require significant medical treatment and hospital admission was not required.  But the attack was in her own home.  Where offending involves invading the sanctity of a home this is an important aggravating feature.   As the Court of Appeal  emphasised in  Taueki the sanctity of the home must be recognised  and violence occurring in a person’s home is an aggravating factor calling for a higher sentence.

[29]     As well the offending was accompanied by a high degree of premeditation. You specifically drove to Ms Yoo’s home and you took with you a weapon, the cork screw.  Fortunately your attack was interrupted by the entry of the 11 year-old girl. What mitigates the offending is that you seemed to almost immediately realise your victim needed medical attention and you carried her to the car, and took her to the hospital where you waited to be arrested.   Although she escaped serious physical injury her understated description in her victim impact statement is poignant:

I am very worried about what Mr Shim will do when he gets out of jail.  Is there anything I can do to keep safe.

[30]     It can be assumed that Ms Yoo continues to suffer.  The appropriate starting point for this charge is also band 2.   The attack involved a premeditated home invasion with the use of a weapon brought to the scene.  Seven years imprisonment is an appropriate starting point.  The same discount of 20 per cent is given for the guilty plea and for personal mitigating factors a discount of seven months.  These discounts result in a sentence of five years imprisonment.

[31]     I am satisfied that if served concurrently the total period of imprisonment is proportionate to the gravity of the overall offending.

Minimum period of imprisonment

[32]     I have considered whether a minimum period of imprisonment should be imposed.  I am satisfied that the sentences of imprisonment which I will impose hold you sufficiently accountable for the harm that you have done to your victims and the community by your offending.   In considering whether the sentences sufficiently protect Mr Koh and Ms Yoo from further physical violence from you I am satisfied that they do.  You appear to be committed to rehabilitation, to living the anti-violent life you have always preached and, once more, through your missionary work, to assist those in need.

Sentence

[33]     Mr Shim please stand.  On the charge of attempted murder you are sentenced to six years and seven months imprisonment.

[34]     On the charge of wounding with intent to cause grievous bodily harm you are sentenced to five years imprisonment. The sentences are to be served concurrently.

[35]     Mr Shim please stand down.

Karen Clark J