OH Hyunwook v R

The applicant's subjective case. 18 Mr Oh was brought up in South Korea. His father is the manager of a building company. His mother owns a restaurant. He had what was described as "a good upbringing". He still enjoys the support of his family, who remain in Korea. 19 Mr Oh attended university in Seoul. He studied film making and hoped to become a film director. Indeed, he came to Australia to further his career. He attended a summer school in film at the University of Melbourne. In a letter addressed to the Court, placed before the sentencing Judge, he said this: "I ... have aspirations to become a successful film director. In all modesty, I have been interviewed on national Korean radio and have been featured in magazines representing film as one of Korea's up and coming talents. I had plans to create greater films and wished to gain experience and broaden my mind in Australia." 20 The letter to the Court also said that he was "truly remorseful". His letter included these words: "Everyday I have been praying and reading the Bible helping me to acknowledge my wrongdoings and praying for forgiveness. ... I acknowledge my sins as a prisoner and am genuinely remorseful." 21 When giving evidence on sentence, Mr Oh elaborated, as I will describe when dealing with one of the grounds of appeal.

The Notice of Appeal. 22 A notice seeking leave to appeal was filed, identifying the following grounds: "1. His Honour erred in finding that realistic remorse requires expression in a concrete manner. 2. The offence was committed at the home of the victim. In the circumstances of this case, his Honour erred in regarding that as important. 3. His Honour erred in failing to refer to the standard non parole period. 4. His Honour erred in using a sentence of forty months as a starting point." 23 Let me deal with each ground in turn.

Ground 1: Error in finding that realistic remorse requires expression in a concrete manner. 24 Counsel for the applicant asserted that there were a number of comments by the sentencing Judge during the course of submissions and in his remarks on sentence, which demonstrated that he had discounted the remorse shown by Mr Oh and not given him "the maximum discount". First, the following exchange took place with counsel during submissions: (T 14) "HIS HONOUR: Mr Crown, would you argue against a 25% discount for the plea? (CROWN): No, your Honour. HIS HONOUR: The combined plea and remorse? (CROWN): Yes, your Honour." 25 Mr Oh had originally been charged with wounding with intent to cause grievous bodily harm, a more serious offence in which the maximum penalty was 25 years imprisonment (Crimes Act 1900, s 33(1)). Representations had been made to alter the charge to reckless wounding (Crimes Act 1900, s 35(4)) and to permit the matter to be dealt with summarily. The Crown agreed to accept a plea to the lesser charge, but insisted that the matter be dealt with on indictment. A plea was entered in the Local Court and the applicant committed for sentence in the District Court. A 25% discount for the plea was appropriate on utilitarian grounds. The reference by his Honour to remorse, in the context of the 25%, was a "slip", which I will come back to. Counsel's reference, in his written submissions, to "maximum discount for remorse", was also apt to be misleading. There is no quantified discount for remorse (R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159). Remorse is a factor to be taken into account. It may be especially important in determining prospects of rehabilitation. 26 The second matter relied upon by counsel for the applicant, said to demonstrate error, occurred during the applicant's evidence on sentence. When questioned by his Honour, the following exchange took place: (T 13) "Q. And the problem with that is it seems to have been a matter of what you regarded as your honour, an affront to your honour? A. INTERPRETER: Yes, it was completely my fault. My wrongdoing. I drank too much and I wasn't able to control myself. I am very remorseful about it. Q. In terms of your remorse you can take it that I get people appearing before me every day saying that they are remorseful and often they are and they are genuine about it, but my question is what have they done about it. Have you or your family made any offer towards the medical expenses of this victim? A. INTERPRETER: I wanted to do it but I was advised by my lawyer that contact should not be made. Q. That may well be right but was any offer made through your lawyers to the victim to meet the medical costs? A. INTERPRETER: No, your Honour. In Korea, your Honour, if these sort of things happen then the perpetrator offers the treatment fees and other money to victim -- Q. I know. A. INTERPRETER: -- but not this, my lawyer, but previous lawyer said to me I must not contact the victim and if I contact the victim then that's against rule. Q. That's true, but the issue is that a contact can be made on your behalf by the lawyers through the DPP or through the police and I always have a limited acceptance of expression of remorse unless they are backed up by something concrete? A. (No verbal reply)." 27 There was, according to counsel for the applicant, unchallenged evidence that the applicant was remorseful. He had said so in a letter to the Court. He repeated that assertion in his evidence. He had attempted to make restitution, but had been dissuaded by his lawyers. His remorse, in these circumstances, did not need to be "perfected by a concrete manifestation" of reparations. His Honour, in these circumstances, fell into the error described by Fullerton J in Butters v The Queen [2010] NSWCCA 1, where the following was said: (at [21]) "21. In the absence of a finding that it was not open for his Honour to give reduced weight to the evidence of remorse in all the circumstances, or that the exercise of the discretion involved in the assessment of the weight to be given to remorse as a mitigating factor was otherwise so unreasonable as to amount to error, it is not appropriate for the Court to intervene. ..." 28 The Crown, in response, drew attention to the terms of s 21A(3) of the Crimes (Sentencing Procedure) Act 1999, which dealt with the circumstances in which remorse may be taken into account as a mitigating factor. The section is in these terms: " s21A(3) Mitigating Factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)." 29 Hence, according to the Crown, restitution was one way in which remorse may be demonstrated. His Honour's comments concerning the means by which contact on behalf of the accused may be made with the victim, were somewhat similar to comments made by Fullerton J in Butters v The Queen (supra), where her Honour said this: (at [20]) "20. The applicant also submitted that if his Honour's criticism that the evidence of remorse was not more forthcoming was referable to the applicant's letter to the victim only being provided on the day of sentence, the criticism was unwarranted given that the applicant's bail conditions prohibited him from communicating with the victim. I accept that it would have been a breach of bail were the applicant to have forwarded an unsolicited communication directly to the victim, and an error were his Honour to have taken the delay in communicating his remorse to the victim into account when assessing the weight of the evidence of remorse in these circumstances. It would not, however, have been a breach of bail if, prior to the sentence proceedings, the applicant's legal representatives had communicated to the Director of Public Prosecutions the applicant's intention to personally express his regret and remorse in a letter to the victim and perhaps to make available a sealed letter for production at the hearing if necessary. ..." 30 Turning to the remarks on sentence, his Honour included a heading "(Restitution), Contrition and Remorse". He then said this: (ROS 6) "There is no restitution proposed either by him or by his family, which is, to my certain knowledge, contrary to the Korean tradition. He says that is because of a misunderstanding based on advice he was given by a previous solicitor. That, to me, is unfortunate because I think that advice is unfortunately given by legal practitioners in this State - but not other states - on the basis that there should be no contact between an offender and his victim. Nevertheless there are always methods of ensuring that there is realistic remorse and contrition expressed in a much more concrete way, namely by way of restitution. It is a pity that that message does not get out to put some substance behind the frequently expressed claims of remorse and contrition that are expressed in this Court. The offender submitted a letter written on his behalf from the Junee Correctional Centre. In that he expresses his remorse. It sets out what he has done while in Australia and the impact on him of the incident and his sorrow to the room-mate in particular for the scars. He says that he misses his family enormously and I can imagine, having watched him while he gave his evidence, that that is the case." 31 Commenting upon this material, a number of things should be said. Restitution was clearly relevant, in the context of remorse, as s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 makes clear. It is one way, and an impressive way, in which remorse may be demonstrated. His Honour, from his remarks, clearly understood that it was not the only way. For convenience, I repeat part of what he said when the applicant gave evidence: (supra [26]) Q. ... I get people appearing before me every day saying that they are remorseful and often they are and they are genuine about it, but my question is what have they done about it. ..." (emphasis added) 32 His Honour referred to the applicant's letter, in which he expressed remorse, and to his evidence, which he had given moments before. He did not say, in terms, that he accepted the applicant as remorseful. However, I believe that was implicit in what he did say. His reference to the advice of the solicitor as being "unfortunate" and the comments that followed, were not a criticism of the applicant. It was a general comment directed at the legal profession. The profession ought to be aware, when giving advice to persons charged with a criminal offence, that actions speak louder than words. Restitution was a powerful way to demonstrate to the Court the offender's remorse. 33 When his Honour came to sentence the applicant, he simply referred to "a discount of twenty-five percent for the plea ... " (ROS 7), with no reference to remorse. In other words, he did not repeat the slip. It was clear from his findings concerning Mr Oh's subjective circumstances and his remarks in the context of special circumstances (which are extracted below), that his Honour accepted that Mr Oh had good prospects of rehabilitation. There is no reason to think that his Honour gave less than appropriate value to Mr Oh's expressions of remorse. 34 In my view, there is no substance in Ground 1.

Ground 2: The offence was committed at the home of the victim. In the circumstances of this case, his Honour erred in regarding that as important. 35 Counsel for the applicant drew attention to the following remark by his Honour: (ROS 5) "In terms of my overall consideration of the matter it does seem to me that these events occurred, importantly, in not only the offender's own home but also the victim's temporary home. The victim was a visitor to Australia; this was known to the offender. There were issues of hospitality involved. ... " 36 It was submitted that his Honour had treated this aspect as a matter of aggravation under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, which is in these terms: "s 21A(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (eb) The offence was committed in the home of the victim or any other person." 37 That section, according to the applicant, was designed to deal with a situation, such as a home invasion, where an intruder enters someone's home, where the owner is entitled to feel safe. That was not this case. The applicant and the victim occupied the same apartment. According to the applicant, the location of the offence was not a matter of aggravation. The section had no application to people who are living together. The dispute between them was in the nature of a domestic violence matter. 38 The Crown responded that his Honour had not treated the matter as one of aggravation. No submissions were made by either party on that aspect. Rather, his Honour's words were descriptive of a circumstance relevant to the offending behaviour. 39 Dealing with these submissions, his Honour, when he began his sentencing remarks, did describe the offence as "domestic violence related" (ROS 1). However, in the passage relied upon, his Honour did not say that he regarded the location (being within the victim's temporary home) as a matter of aggravation. Indeed, it is noteworthy that the ground of appeal does not assert that there was error in regarding the location as a matter of aggravation. It asserted error in regarding it as "important". In my view, it was clearly a relevant circumstance. It was open to his Honour to regard it as important. Instead of the victim being treated cordially in what had become his temporary home, he was subjected to violence. There was no error. 40 I should add a further comment, although it is a dispute for another day. No authority was provided which suggested that s 21A(2)(eb) was confined to the circumstances of an intruder from outside. Collon v R [2009] NSWCCA 187 was a case where the facts were slightly different. The offender was living in shared accommodation with the victim and a number of others. Each had his or her own bedroom. An argument developed, where the offender pursued the victim and ultimately attacked him within his own bedroom. The sentencing Judge, Mathews AJ, found as a matter of aggravation that the offence had taken place in the victim's home. On appeal, the following comments were made by me (McClellan CJ at CL and Johnson J agreeing): (at [30]-[31]) "30 ... In support of the argument that it was not an aggravating factor that the crime was committed in the deceased's house, counsel drew attention to another sentencing matter involving her Honour Justice Mathews. In R v Stewart [2008] NSWSC 1359 (at para [48]), her Honour (adopting an agreed position by the parties) stated that, although the crime in that case was committed in the victim's house, and that was "technically" a matter of aggravation, it should be given no weight, since it was the home of both the offender and the deceased. 31 However, the accommodation occupied by the applicant and the deceased was akin to a boarding house. Each shared facilities but had separate rooms. The murder occurred inside the deceased's bedroom. He ought to have been safe within his bedroom. Further, counsel then appearing for Mr Collon on sentence did not dispute that, in the circumstances, it was an aggravating factor (ROS para [17])." 41 Let me pass to the remaining grounds of appeal, which can conveniently be dealt with together.

Ground 3: His Honour erred in failing to refer to the standard non parole period. Ground 4: His Honour erred in using a sentence of forty months as a starting point. 42 Counsel for the applicant drew attention to the fact that his Honour made no reference to the standard non parole period. The Crown acknowledged that omission and that it may suggest error. The argument, as it developed, involved the contention, on behalf of the applicant, that the sentence was excessive because the starting point (40 months) was too high. The Crown submitted that it was not too high. Further, the Crown argued that, were the Court to find error, it should not intervene. The applicant, according to the Crown, could not demonstrate that some other sentence less severe than that imposed was warranted in law (Criminal Appeal Act 1912, s 6(3)). 43 I should deal with the question of error before considering the competing submissions upon intervention. The Crown papers tendered before his Honour made reference to the maximum penalty and the standard non parole period. In an extempore judgment, delivered soon thereafter, his Honour referred to the maximum sentence, but not the standard non parole period. There was no discussion during submissions as to the characterisation of the offence by reference to the standard non parole period or a mid range offence. There was, as I will shortly set out, simply a discussion of the appropriate term to be imposed, the discount for the plea and the question of special circumstances (ROS 7). Whilst inferences can be drawn from what was done as to the characterisation of the offence by his Honour, and whilst there is a need for a practical approach in assessing the remarks on sentence (R v McEvoy [2010] NSWCCA 110 at [89]; Phan v R [2010] NSWCCA 8 at [11], [16]; Corby v R [2010] NSWCCA 146 at [51]), the discipline of referring to the standard non parole period, and identifying the level of criminality by reference to the mid range, is important. As to the latter aspect, Howie J said this in R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338: (at [39]) "39. ... Although such an assessment cannot be made with absolute precision, it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding." 44 Here, the absence of any reference to the standard non parole period, or the place of this offence in relation to a mid range offence, does, in my view, amount to error. The question of whether the Court should intervene therefore arises. 45 Counsel for the applicant pointed to a number of features which, in his submission, suggested that the starting point was excessive, so that another sentence was warranted. The offence was not premeditated or planned. The charge was reckless stabbing. The incident erupted and was over within a very short time. The injury was serious, but no inference should be drawn from the length of the scar (20 cm). The applicant underwent surgery and, according to the applicant, one would infer that such surgery enlarged the wound, as the surgeons satisfied themselves that there was no internal damage. 46 Further, the applicant was clearly affected by alcohol. That was not an excuse for his behaviour. Nonetheless, according to the applicant's counsel, it explained why a person of otherwise good character should behave in that way. A lower starting point and a lesser sentence, in the circumstances, was appropriate. 47 Counsel for the Crown responded by reciting what had happened. It was a sustained attack. It caused significant injury, which has had lasting consequences. No lesser sentence was warranted. 48 Dealing with these submissions, it is instructive to examine the exchange with counsel then appearing for the applicant at the end of his sentencing remarks, just as his Honour was about to impose sentence. Having said that the matter would normally warrant a sentence of "three to three and a half years", his Honour continued as follows: (ROS 7) " ... A discount of twenty-five per cent for the plea would take it down to about ... if I rounded it down to forty months ... that would take it down to thirty months. A finding of special circumstances based on the offender's age, the absence of prior convictions, the difficulties he will have in gaol, would mean that a finding of sixty per cent. That should be adjusted leaving a non parole period of eighteen months. Would you argue that that's not -- (CROWN): No your Honour, he's done nine months. HIS HONOUR: Yes backdate it. Would you argue against that range? (CROWN): No I wouldn't, no your Honour. HIS HONOUR: What do you say Mr Cruickshank? CRUICKSHANK: An eighteen month non parole period your Honour, I wouldn't say anything on that your Honour." 49 The attack by Mr Oh upon the victim was indeed a sustained attack. It began with a threat, which he repeated: "Do you want to die?". As the confrontation developed, he took the victim by the throat, first with one hand, and then with both hands. The victim ran away down the hallway, seeking sanctuary within the bathroom. He was pursued by Mr Oh who diverted to the kitchen, and obtained a knife. The Agreed Facts recorded that the applicant "continued towards the victim with the knife in his hand" and the knife then penetrated the victim's stomach. Such was the terror of the victim that he felt constrained to take hold of the knife and throw it away, as he begged for his life. The injury inflicted was serious and has had lasting consequences. 50 In my view, the applicant was dealt with leniently. In R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704, the Chief Justice said this: (at [79]) "79. Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence ... is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied. As the judgments in Dinsdale ((2000) 202 CLR 321) to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense." 51 Here, the objective and subjective circumstances of Mr Oh do not lead me to the conclusion that "some other sentence ... is warranted in law and should have been passed" (Criminal Appeal Act 1912, s 6(3)).

Order. 52 The orders I would propose are as follows:

2. The appeal dismissed. 53 JOHNSON J: I agree with Kirby J. **********

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