R v June Oh Seo

Supreme Court of NSW|2019-05-31|Before: Wilson J, Ms J

Judgment

HER HONOUR: On 9 October 2017 Hee Kyung Choi was murdered by her former partner, June Oh Seo. The offender pleaded guilty to Ms Choi's murder, on 1 November 2018 in the Local Court, and adhered to that plea in this Court on 7 December 2018. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) which carries a maximum penalty of life imprisonment. In the circumstances of this case, a standard non-parole period of 20 years imprisonment applies.
When he is sentenced for Ms Choi's murder, the offender asks the Court to take into account a further offence pursuant to s 59(1) of the Crimes Act, of assaulting Ms Choi, occasioning actual bodily harm to her, also on 9 October 2017. When prosecuted on indictment, that offence carries a maximum penalty of 5 years imprisonment.
The maximum penalties and the standard NPP applicable to the crime of murder operate as legislative guideposts that inform the exercise of the Court's sentencing discretion: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The other features to which the Court must have regard when determining the sentences to be imposed are the objective gravity of the crimes, the personal circumstances of the offender, and the relevant principles of sentencing.

Other Information in the Crown Case

The offender's NSW criminal history forms part of Ex. A. He has two prior convictions, both from 2016. On 28 October 2016 the offender was convicted of an offence of common assault, and placed on a bond for 12 months pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offender was also dealt with that day for an offence of contravening an apprehended domestic violence order, committed later in 2016, receiving a further s 9 bond, of 8 months duration. Both convictions were for domestic violence offences.
The chronology suggests that the offender was charged with a domestic assault, and made subject to an ADVO, which he later breached. The victim of the assault was the offender's then pregnant wife.
The first of the bonds imposed upon the offender, for assaulting his then wife, was current at the time of Ms Choi's murder, and the offender was thereby in breach of it.
The offender has been in custody with respect to this matter since his arrest late on the evening of 9 October 2017.
There is a victim impact statement given to the Court by Ms Choi's father, on behalf of her family, in the presence of her mother. Although given in the Korean language, it was not necessary to wait for the translation to understand the pain and grief caused by Ms Choi's death, and Mr Choi's distress as he described the devastation caused to him, his wife, and son, by her violent death. I have had regard to the statement in the way discussed in R v Previtera (1997) 94 A Crim R 76.
Ms Choi's parents travelled from Korea to Australia to be present in court today, to honour her. They have described their love for Ms Choi, and their great pride in her achievements, achievements in which her family had a part to play by their hard work to support her in her studies. They feel the grief of their loss each day, and can no longer lead the same happy lives as they formerly did.
I hope Ms Choi's family can understand that no sentence that the Court can impose upon the offender can change the terrible reality of what occurred, or even lessen the pain caused to them by her loss. I can only acknowledge the magnitude of the wrong done to Ms Choi and to her family and friends, and express my deepest sympathy to those who loved her.

The Gravity of the Offences

All murders are serious; that is why the offence carries a maximum sentence of life imprisonment. As Ms Choi's father said in the family's victim impact statement, a young life full of promise, a life that is given only once, was violently cut short.
Where on the continuum of gravity the individual offences may fall is dictated by the facts of the particular crime and the offender's moral culpability. Having regard to its particular features, Ms Choi's murder is a serious example of such an offence, falling a little over the mid-range point, as both parties observed in submissions.
Ms Choi was physically smaller than the offender, and thus at a disadvantage in any physical struggle with him to defend herself.
She was attacked by him in her own home, a home in which he had no right to be, Ms Choi having asked him to leave. Thus did what should have been a place of peace and safety become a place of great danger for Ms Choi.
Although the level of violence directed by the offender to Ms Choi initially cannot be determined with precision because of the injuries caused by her later impact with the ground, it is clear that the offender struck her more than once, and used very considerable force, breaking a bone in his own hand in the process. By his own acknowledgment, the offender strangled Ms Choi, something that must have led to both pain, and great fear.
Ms Choi had told friends that she was scared of the offender due to his earlier conduct; she must have been terrified of him on this early morning, and terrified of what was going to happen to her.
In throwing her from the balcony of a 23rd floor apartment, the offender acted with an intention to kill; no other outcome could have resulted from a fall from such a height. I do not accept the offender's unsworn assertion to Dr Furst that Ms Choi was at that time already dead; the credible evidence does not allow the Court to draw that conclusion.
This was a brutal crime, committed as a consequence of the offender's enraged inability to accept that Ms Choi had a life of her own, and a right to make her own choices.
The offence to be taken into account was also a serious example of a crime of its nature, even in circumstances where the extent of the injuries inflicted upon Ms Choi cannot be determined, beyond concluding that actual bodily harm was occasioned. The injuries the offender caused to himself in hitting her demonstrate the force used. Consistent with authority, there should be some increase in the penalty to be imposed upon the offender for Ms Choi's murder to denounce the crime, and exact some retribution for it although, given the temporal proximity to the principal crime and connection with it, it will be modest.
The offender's moral culpability for these crimes is high. His conduct towards Ms Choi demonstrated a violent disregard and disrespect for her rights as an individual who could live as she chose, and is explained by nothing more than his inability to accept, and irrational anger at, her decision to end their relationship.

The Offender's Case

The offender did not give evidence on sentence.
Exhibit 1 before the Court is a report dated 3 May 2019 from Dr Richard Furst, forensic psychiatrist, who saw and assessed the offender on two occasions, in October 2018 and March 2019. The latter assessment followed the offender's acknowledgment of his guilt for these crimes.
Dr Furst observed that the offender was aged 38 years at the time of their later consultation, and had been born in South Korea. The offender was logical in thought throughout the interview and he did not exhibit any signs of psychosis or severe depression. He was cognitively aware, although he reported difficulties in sleeping, and feeling anxious in custody.
Dr Furst recounted the history given to him by the offender. The offender had been occupied as a painter, and lived in the north-west of Sydney at the time of the offence. His family - his older sister, younger sister and his parents -live in South Korea.
The offender reported that his father was abusive towards him and his mother during his childhood. He described his father as "an angry person" whom he "hated…when he was young". He told Dr Furst that his father would confine him to a room as punishment, punishment that he said traumatised him, and led to low self-esteem and a tendency to isolate himself. He developed a habit of retreating to the rooftop of his home when stressed.
The offender told Dr Furst that he had completed primary and high school education in South Korea and, after finishing school, completed about 2 years of compulsory military service. He claimed to have been physically abused by his military superiors, and he suffered from depression, anxiety, and frustration during his military service. He said this led to an attempted suicide, although no formal mental health diagnosis was made and no treatment was undertaken.
Following military service, the offender studied towards a Bachelor of Biology at university for four years, as well as studying, but later discontinuing, basic medicine.
At age 25 or 26, in 2005 or 2006, the offender migrated to Australia. He studied English at TAFE and worked part-time as a cleaner. He also studied nursing for two years around 2008 but was unable to complete the course due to financial difficulties.
The offender told Dr Furst of a number of romantic relationships in which he had been involved. A relationship in Korea ended after about 2 years. In Australia, the offender was involved with a Korean woman for about 5 years, but this relationship too ended. Following the breakdown of this relationship, the offender returned to South Korea. In 2012 he again travelled to Australia, securing a visa for permanent residency. He met, and later married, his former wife at about that time, but the marriage was troubled, and the couple separated in 2016, on the birth of their son.
Dr Furst, who was provided with extensive documentation relevant to the breakdown of the offender's marriage, asked the offender about violence in the relationship, but the offender denied it. Having regard to the offender's criminal history, and the other records to which he had access, the doctor thought that the offender minimised the extent of the discord and violence in the marriage.
Of his relationship with Ms Choi, the offender reported a "sudden change of behaviour" on her part leading to their separation, although he later acknowledged that Ms Choi had regarded him as too controlling.
The offender gave Dr Furst an account of the events surrounding Ms Choi's death, including having an argument with her because she wanted him to leave her apartment, and becoming angry. He told the doctor that he "lost" himself, hit Ms Choi, strangled her, and "threw her off" the balcony. He said he did not know why he had thrown Ms Choi from the balcony, claiming not to "recognise what happened", and later saying that he "'still [couldn't] believe what he did'".
The offender told Dr Furst that he "thinks about what happened 'every day' and regrets what happened".
Dr Furst opined that the offender's relationships with women were characterised by a pattern of controlling behaviour. He evaluated the offender's response to Ms Choi's request to him to leave her apartment as "angry, excessive and lethal", with Ms Choi's murder the product of the offender's inability to accept the end of his relationship with her. The doctor thought that the offender's act in throwing Ms Choi from the balcony reflected his difficulties in coming to terms with rejection, and his maladaptive coping style.
Although Dr Furst regarded the offender's threat to commit suicide during the day long stand-off with police on 9 October 2017 as demonstrating that he was suicidal and mentally disordered at that time, the doctor concluded that the offender has no major mental illness, and no substance abuse issues, and no specific diagnosis was made. The offender has what Dr Furst referred to as "difficulties in relationships" with particular sensitivities to real or perceived rejection. The doctor recommended psychotherapy.
Whilst Dr Furst reported the offender's asserted remorse for his crime, there is no evidence of it other than that hearsay account, which should be treated with considerable circumspection: R v Qutami [2001] NSWCCA 353. The plea of guilty may be taken as some evidence of remorse, but its use in that way must be tempered by the fact that the offender did not acknowledge his guilt until many, many months after Ms Choi's death, and only after falsely claiming that she had committed suicide.
When he was on the awning of the 27th floor of Ms Choi's apartment block, the offender's only real concern connected with Ms Choi's death appears to have been for himself as a consequence of it - that he would receive the "death penalty" [that not being a sentencing option in Australia], or that he would spend the rest of his life in gaol. When formally questioned by police he lied to them about what had occurred, asserting that Ms Choi had killed herself.
It was only after the offender had unsuccessfully explored the availability of a defence or partial defence connected with a mental illness, as was his right, that he acknowledged his responsibility for Ms Choi's murder.
The offender will receive the full benefit on sentence of his plea of guilty in the Local Court, being a 25% discount on the sentence that otherwise would have been imposed to recognise its utilitarian value, but I do not think it says anything about genuine remorse. There is no credible evidence that the offender feels sorry for anything other than the situation he is in.

Deterrence

Like too many women before her, Ms Choi died because the man with whom she had been involved could not accept her right to autonomy. The offender acted from a profound sense of entitlement, clearly believing that Ms Choi had to conform to his wishes rather than pursue her own.
The offender's crime is one seen with distressing frequency, and there is a very real role for general deterrence in determining the sentence to be imposed upon him. That is a role which has long been recognised. The criminal courts give significant weight to general deterrence, to denunciation, and the protection of the community when imposing sentence on an offender who murders a partner or former partner. In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 the High Court referred, at [54], to the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence.
Paraphrasing the plurality (from [55] of Munda), a consideration with a very powerful claim on the exercise of the sentencing discretion in this case is the need to recognise that the offender, by his violent conduct, took the life of his former partner, a bright young woman with all of her future before her. As the High Court said, A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal […] destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.
Whilst there are men in the community, and it is mostly men, who view women as second class citizens who must bend to their will, when that attitude results in the commission of crime, and particularly violent crime, the courts will impose heavy punishment. Such conduct is never acceptable and it will be strongly repudiated by the courts.
In the offender's case, specific deterrence also has a significant role to play. He acknowledges that his past demonstrates a pattern of controlling behaviour towards the women with whom he has been involved, on occasion involving violence. His criminal antecedents are demonstrative of that history.
The offender learned nothing from his prior appearance before the criminal courts, and clearly paid no heed to the bond he entered in October 2016, which required him to be of good behaviour. The fact that he was at conditional liberty when he murdered Ms Choi, an aggravating feature on sentence, points to the offender's inability to change his behaviour, at least until that time. The sentence imposed upon him must act as a deterrent upon his future conduct.

Rehabilitation

The offender's background, and the breach of his bond, must also give rise to strong reservations as to his prospects of rehabilitation. There is little in his case to lead to a favourable assessment in that regard. His controlling nature with women appears to be of long standing, and even the intervention of the criminal justice system in 2016 did not give the offender pause for thought. He continued in an attitude that his romantic partner was his to dictate to. The offender submits that his plea of guilty is some evidence of his acceptance of responsibility and thus of relevance to his future prospects, but the plea probably says more about the offender's recognition of his legal situation than it does about his resolve for the future.
I am not able to make any informed prediction as to rehabilitation, although I fear the offender's future prospects may be bleak.

Special Circumstances

It is submitted for the offender that there may be a basis for the Court to make a finding of special circumstances. I am not persuaded that the offender's circumstances are special, or that there is any real purpose to be served in varying the statutory ratio of sentence. I accept that, as a Korean national with limited English language skills at present, and no family locally, the offender will find his incarceration more isolating than most other prisoners. That is a feature of his case I have had regard to when fixing the penalty to be imposed; it is not something that should ground a finding that special circumstances exist.
Whilst I have had regard to Dr Furst's report, there is nothing in it which supports the utility of such a finding. The offender does not suffer from any condition that should mitigate the operation of the usual sentencing ratio. I accept that he will benefit from psychotherapy, but there is no reason to conclude in the circumstances of his case that he would be advantaged in that regard by a longer period of parole.

Sentence

The offender, June Oh Seo, is convicted of the murder of Hee Kyung Choi on 9 October 2017 at Chatswood. Taking into account the offence of assaulting Ms Choi, occasioning actual bodily harm to her, and reducing the term by 25% to acknowledge the plea of guilty, the offender is sentenced to a term of imprisonment of 22 years and 6 months to date from 9 October 2017, expiring on 8 April 2040. The non-parole period (rounded down) is 16 years and 10 months imprisonment, expiring on 8 August 2034.
The offender is warned that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2019

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