19 The prisoner has expressed remorse and said that he was very sorry towards the person who died, the deceased's family and indeed the prisoner's family and everyone involved. The prisoner has said that he has since the event rarely gone out, that he had difficulty sleeping and had recurring thoughts about what had happened. I accept this evidence.
20 The prisoner's evidence was that he accepts that he will be imprisoned as a result of the commission of the crime and this will mean the effective destruction of the tiling business which he had built up. The prisoner is currently undertaking quite substantial tiling work and, in particular, currently has a job tiling some one hundred and thirty apartments. The prisoner employs a large number of tilers. It may well be however that there are breaches of various laws in relation to that business, but it is likely, in my view, that completion of the work is unlikely without the prisoner's supervision, and that his business may well collapse. The prisoner accepts that he will on terminating his gaol sentence have to return to Korea, notwithstanding his previous wish to live in Australia with his family.
21 I take into account that inevitably, when assessing sentence, there will only be a limited number of people speaking only Korean within the prison system, and indeed in a particular part of Corrective Services there will be a likelihood of significant deprivation of contact with people with whom he can speak and contact who are Korean speaking. He, being a person of previous good character, may well find those Korean speakers that he does meet are not of a class of people that he would necessarily wish to associate with.
22 Character witnesses were called on behalf of the prisoner, mainly his business associates in tiling, but they attested, and I accept this, as to his good character, his hard work and how well he was respected, how good a leader he was and how tolerant he was with people. A witness, Mr Chae, spoke of the prisoner's great sorrow for the deceased and his family.
23 The evidence before me was that the cause of death was an intracranial subarachnoid haemorrhage, the deceased dying about forty hours after the altercation. There were relevantly also found bilateral rib fractures. I find beyond reasonable doubt that the death of the deceased occurred through the actions of the prisoner which I have described in the altercation and that the injuries resulted from the blows and actions of the prisoner, and that the subarachnoid haemorrhage was a result of the prisoner's actions. I also find beyond reasonable doubt that the blows of the prisoner constituted an unlawful and dangerous act. The offence of Manslaughter is thus made out.
24 Taking into account the objective seriousness of the offence and the subjective matters, I now turn to the principles of sentencing and in particular as to the offence of Manslaughter.
25 The many purposes of sentencing include protection of the community, deterrence specifically and generally, rehabilitation or reform, and imposing an appropriate penalty to reflect the severity of the offence as a denunciation of that offence. I have had regard to the assumption of the criminal justice system that penalties operate as a deterrent (see R v Wong; R v Leung [1999] 48 NSWLR 340).
26 It seems to me unlikely that the prisoner will reoffend and that the matters to be looked at in sentencing must be looked at in light of the prisoner's favourable subjective circumstances. These principles were enunciated by Street CJ in R v Rushby [1977] 1 NSWLR 594 at 597 which applied the passage from R v Radich [1954] NZLR 86 at 87. There is a need however in such a vicious and violent attack perpetrated by the prisoner, which occurred notwithstanding the consumption of alcohol, of a denunciation by this Court of such conduct leading to the death of the deceased.
27 I have also had regard because of the difficult circumstances of the prisoner in the Corrective Services system, due to cultural and language deprivation, to the need for rehabilitation and the fact that his time will be served absent contact with his family, who will by then have been removed to Korea. Nonetheless the Court must denounce the crime.
28 In relation to the offence of Manslaughter, I have been assisted by a large number of cases of generally similar circumstances placed before me by the learned Crown and Mr Boulten, counsel for the prisoner. It must be remembered that the circumstances giving rise to a Manslaughter conviction are infinitely varied and not much assistance can be gained from other cases or, in particular, from the general statistics on Manslaughter to which I have had regard.
29 The starting point must be the gravity of the objective circumstances of the case (see R v Blacklidge, unreported, NSWCCA, 12 December 1995). I have also particularly considered what was said by Whealy J in R v O'Hare, unreported, NSWSC, 25 July 2003, and R v Grenenger [1999] NSWSC 380, unreported.
30 I have read the medical evidence as to the state of the prisoner and find no evidence of any psychiatric or mental illness. I have had regard also to what has been said by Newman J in R v Wilson [1999] NSWSC 1235, unreported, and Dunford J in R v Risteski [1999] NSWSC 1248, unreported, which cites Blacklidge (supra), as to taking into account deterrence and the community's denunciation. In that last case a minimum term of three and a half years was imposed with an additional term of two years, taking into account prior custody.
31 The savage attack on the part of the prisoner, affected as it was by considerable ingestion of alcohol, was nonetheless a protracted period of violence which resulted in the death of a human being through no apparent fault of that human being. As I have indicated, in terms of the prisoner's subjective circumstances, it is clear that the removal of his family, he being a fairly recent migrant to Australia, will cause him great distress and pain. He is now deprived of being an Australian, and of bringing up his family here. He has lost his business and will do his time hard for the cultural and linguistic reasons I have referred to.
32 I have taken into account that he was a person of good character who, on the night of the death of the deceased, had had no premeditation or previous ill will towards the deceased. These matters I have taken into account in terms of the overall penalty but, more importantly, I find that there are special circumstances for reducing the time actually served to below three quarters of the total sentence to be imposed.
33 I should note that I have read with sadness what is put very respectfully by the family of the deceased but, in noting what has been said, I do not consider in terms of other factors the court has to consider that it is appropriate to have regard to the contents of that statement in deciding the sentence to be imposed.
Discount
34 I now turn to the difficult question of the entry of the plea of guilty and the question of discount. Although the prisoner did not come forward for some few days, he nevertheless arranged through his solicitor to surrender himself. He pleaded guilty at the earliest opportunity. I have had regard to the guideline promulgated in R v Thompson; R v Houlton (2000) 49 NSWLR 383, unreported, which dealt with the utilitarian value as being generally between ten and twenty five per cent discount of sentence. It must be remembered however that in this case, I find, in addition to those utilitarian factors, that the prisoner assisted authorities in providing evidence to complete the Crown case, and that he came forward at an early opportunity and assisted police. The prisoner is remorseful, and I find that remorse for his actions on that night genuine.
35 I have referred to the general range of twenty to twenty five per cent discount, but in R v Arnott [2001] NSWCCA 497, unreported, even a discount of twenty per cent was not considered sufficient, although in R v Speechley (2002) 133 A Crim R 26, a discount of twenty five per cent was considered too large. In that case the Court of Criminal Appeal did not agree with the judge's finding that the trial would have been lengthy and expensive.
36 In all the circumstances of this case, taking into account the seriousness of the offence and the prisoner's favourable subjective circumstances, and taking into account the utilitarian value of the plea, the surrender by the prisoner, the assistance provided, and the earliness of the plea, I consider that a plea of greater than twenty five per cent is appropriate and propose to grant a discount of one third, that is, thirty three and one third per cent.
37 Taking into account the authorities that I have referred to and the authorities and statistics on the offence of Manslaughter, which carries a penalty of twenty five years, and the fact that the blow to the skull causing death was clearly unintentional resulting from the prisoner's inability to judge the consequences of his actions, I consider the starting point for this offence in determining the sentence should be four years. This nonetheless takes into account the severity of the attacks on the deceased. If this is reduced by one third it means a total sentence of thirty two months. I consider that there should be a period of twelve months supervision after serving the custodial sentence, taking into account the subjective matters that I have referred to above, and the difficulties of readjustment to custodial life.
Sentence
38 Would the prisoner please stand. Yong Gap Kwon, on the evidence before me, you are convicted of the offence of Manslaughter. I find, as I have indicated, there are special circumstances to reduce the custodial sentence to below three quarters of the total sentence.
39 I sentence you to a total term of thirty two months to commence from your entering custody on 13 February 2004 to conclude on 12 February 2006, with a non parole period of twenty months, that period to expire on 12 October 2005.
40 I direct that on completion of the non-parole period you be released to parole.
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