R v Kwon

Supreme Court of NSW|2010-05-21|Before: Hulme J

CITATION : R v Kwon [2010] NSWSC 671 This decision has been amended. Please see the end of the judgment for a list of the amendments.

DECISION : Sentenced to imprisonment for 22 years with a non-parole period of 16 years 6 months.

CATCHWORDS : CRIMINAL LAW - particular offences - offences against the person - homicide - murder - intention to kill - CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offence - unplanned killing in victim's home - provocation not accepted - standard non-parole period - gravity of offence just below mid-range - co-operation with authorities - prior good character - remorse - reasonable rehabilitation prospects - hardship in serving sentence as foreign national - finding of special circumstances would involve double counting of features taken into account in overall sentence assessment

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

R v Barakat [2004] NSWCCA 201 CASES CITED : R v Fidow [2004] NSWCCA 172 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES : Regina Gihyeon Kwon

COUNSEL : Mr R Herps (Crown) Mr D Stewart (Offender)

SOLICITORS : Solicitor for Public Prosecutions Shiranica Danieli Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT 1 HIS HONOUR: The offender, Gihyeon Kwon, was found guilty by a jury on 23 April 2010 of murder.

2 Ms Jung Ha Kim was a Korean national who was present in Australia on a working visa. Her body was found in the bedroom of her unit at Strathfield on the morning of 21 December 2008. The cause of death was determined to be strangulation. A police investigation was commenced.

3 The offender was identified as a person of interest in the investigation when police discovered that his mobile telephone had made contact with Ms Kim's telephone at about 4.00pm on 19 December 2008. That was the last call received by her telephone before it was switched off.

4 Police spoke to the offender on 4 February 2009. He admitted that he had met Ms Kim, who he knew as 'Claire', in mid 2008 when he attended a brothel in Ultimo. They exchanged phone numbers. He saw her at the brothel on two further occasions. They maintained contact by telephone. On one occasion they shared a meal in the city. She travelled home to Korea sometime in November. On 9 December when she arrived back in Australia she called the offender and asked for him to give her a lift home from the airport. The offender told police that this was the last time he saw her and that he did not know that she was dead.

5 Police made a comparison of the appearance of the offender with that of a man seen entering the deceased's apartment building at 3.58pm and leaving at 5.09pm on 19 December 2008. These images had been captured on CCTV cameras. Police concluded that the man was the offender. They placed an intercept on the offender's telephone service which recorded conversations in which he inferred that he had some knowledge of Ms Kim's death.

6 The offender was arrested on 18 March 2009. He co-operated by engaging in a formal electronic interview and by attending the scene and answering further questions there. He admitted to having killed Ms Kim.

7 The offender's version of events, drawing from the police interviews and his evidence before the jury, was as follows. On 19 December 2008 he travelled to Strathfield for the purpose of purchasing some food. He decided to take the opportunity to call upon Ms Kim in order to tell her in person to cease contacting him. She let him into the building and into her unit. They sat at the dining table having a general conversation for some 20 or 30 minutes. They decided to go out for a meal. Ms Kim went to her bedroom and changed her clothing.

8 When Ms Kim returned she had a tartan bag over her shoulder. They had a further conversation in which the offender told her that he wanted her to cease contacting him. She asked him why and he told her that he had a wife. She then asked why he attended a brothel. His explanation was to the effect that his sexual relationship with his wife was not as fulfilling as he would like but that he loved his wife nonetheless. He reiterated that it was because he had a wife that he did not want Ms Kim to be contacting him.

9 The offender claimed that at this point Ms Kim questioned him as to why he was living with his wife. He slapped her arm, playfully he said, and told her not to say that. She kept saying things in a similar vein, including questioning why he did not leave his wife and suggesting that perhaps the reason his wife did not like having sexual intercourse with him was that she was a prostitute herself.

10 The offender said that he placed an arm around Ms Kim's neck when she continued speaking like this. He was standing behind her. He described having his forearm against the front of her neck and he said that he applied an increasing degree of pressure. He said his intention was to make her stop talking. Recalling an experience he claimed to have had in his school days he thought that if he applied sufficient pressure he could make Ms Kim faint or lose consciousness. However, she kept saying things about his wife and his anger increased.

11 I infer that Ms Kim was struggling. The offender did not agree in his evidence that she was becoming hysterical but claimed that she was becoming annoyed. He said that she tried to get away from him and in the process the two fell to the floor. He said they were both on their sides on the floor. He flipped her body so that she was face down and he was on top of her. He removed his arm from around her neck and took off his shoulder bag. He then wrapped the strap of his bag around her neck and pulled it tight, using ninety percent of his strength he said, whilst he was on top of her with a knee in her back. He said that he did this for about a minute.

12 The offender maintained that, still, his intention was only to make Ms Kim faint or lose consciousness. He used the strap for the length of the time that he did because, he claimed, she was still talking.

13 Ms Kim died. The offender made no attempt to revive her or summon assistance. He said that he sat there for about ten minutes and then dragged her body into her bedroom where he left it and closed the door.

14 The contents of Ms Kim's tartan bag had scattered. He picked them up and put them back in the bag but decided to take the bag with him to avoid his fingerprints being found. He wiped the front door handle as he left the unit for the same reason. He later discarded the bag and its contents.

15 The offender was born on 3 July 1981 in Korea. He completed high school and three out of four years of a university degree in chemical engineering. He also completed two years of compulsory training in the Korean army where he worked in administration. He came to Australia in November 2005 for a working holiday and has remained here on some form of visa since. His parents and an older brother, with whom he enjoyed a good relationship, remain in Korea.

16 In Australia the offender has had casual employment involving cleaning and running an airport pick up service. He met Ms Eunju Chang, a Korean national, in Sydney in 2007 and they were married in July 2008. She is in Australia on a student visa and when she completes her current studies in January 2011 she intends to return to Korea. She has been regularly visiting the offender since he has been in custody but she is realistic about the relationship having no future and so she does not propose to maintain contact with him after her return to her homeland.

17 There was evidence before the jury that the offender has no previous convictions for any matters of violence either in Australia or in Korea. He does have convictions for relatively minor non-violent offences, mostly driving offences. They are of no present significance. Ms Chang has provided a letter in which she confirms what she said in a statement at the time of her husband's arrest, that is that he was always gentle with her and never violent.

18 I propose to take into account in the offender's favour that he has no record of previous convictions of any significance and that he is a person of prior good character.

19 The offender gave evidence before me that his father travelled to Australia in April 2009 to visit him in gaol. His mother could not come because of ill health, although he was unsure what the problem was except that she was unable to fly. After his wife returns to Korea he will have no-one by way of family or friends who will visit him. He remains in correspondence with his family.

20 In anticipation of a submission that I should take into account that the offender will experience custodial conditions harsher than for other inmates, the Crown Prosecutor's questioning of the offender sought to establish that by going into custody there was no real change in the contact he had with his family. He had been in Australia since 2005 and had only been back to visit his family once. He had hopes to gain permanent residency. In those circumstances his family contact would have been limited to telephonic, electronic or postal methods. That may well be so, however for a significant period of time he will have no option to visit his family; his contact will be restricted; and he is unlikely to receive visits as many inmates do. I propose to take such matters into account. A further matter to take into account in relation to his custodial conditions is the fact that his fluency in English is somewhat limited.

21 Since going into custody the offender has learned to operate machines and he has employment in the print shop. His evidence was that he enjoyed the work and that he understands his supervisors are happy with him. He said that he had not been charged with any internal disciplinary offences and that the only difficulty he has in co-operating with prison authorities is when his English language skills cause communication difficulties.

22 The offender has plans to enrol in a TAFE course, perhaps to acquire skills with computers or to enhance his use of the machines he is presently operating.

23 He has completed a three session introductory course in anger management and a certificate to that effect was tendered before me.

24 Mr Stewart, counsel for the offender, asked him how he felt about causing the death of Ms Kim and he replied that although he regarded it as an "accident" he nonetheless regarded himself as being responsible. He said that he felt sorry for her and for her family members. He said he had read the victim impact statements, which I will refer to shortly, and that he understood the effect Ms Kim's death had upon her family. In cross-examination the offender said that he accepted the jury's verdict but I gained the impression that this was not an acceptance of his culpability for murder but simply that this was the decision of the jury.

25 I am satisfied that the offender is remorseful. The Crown Prosecutor challenged him about whether there had been an apology made to the deceased's family, apparently in keeping with a Korean custom. If there had been I might have found that the offender was remorseful to a higher degree but the absence of such an apology does not militate against a finding of remorse.

26 I am also satisfied that the offender has prospects of rehabilitation that may be regarded as reasonable. There are no drug or alcohol issues. He has, it would seem, applied himself quietly and productively to serving his time in custody so far. Mr Stewart submitted that his client has the "intellectual and social resources to successfully re-integrate into society in South Korea, where he will be deported following the expiration of his non-parole period".

27 However, the circumstances attending the killing of Ms Kim are not, to my mind, entirely clear. It is of some significance that the offender is not known for violent conduct but without a satisfactory explanation for how he could be driven by relatively innocuous remarks to kill the deceased, I am not at all confident that I should find the statutory mitigating factors that he has "good" prospects of rehabilitation and is unlikely to re-offend.

28 Aside from the maximum penalty for murder being imprisonment for life there is also prescribed a standard non-parole period of 20 years. The first issue in relation to that is to make a determination of the objective seriousness of the offence.

29 The Crown has conceded that this case does not fall in the worst category warranting a sentence of the maximum of imprisonment for life. It has submitted that the objective seriousness of the offence falls "slightly below mid-range". Mr Stewart, on the other hand, has submitted that it falls "a little bit less than slightly below", or, "significantly but not substantially" below.

30 The primary issue before the jury was whether the offender was guilty of murder or manslaughter. He pleaded guilty upon arraignment in front of the jury panel to the latter but the Crown did not accept the plea. His case was that he should be found guilty of manslaughter because there was no intent to kill or inflict grievous bodily harm and no reckless indifference to human life. In the alternative, it was contended that he was acting under provocation. The jury obviously decided these issues adversely to him.

31 I am satisfied beyond reasonable doubt that the killing of Ms Kim by the offender was accompanied by an intention to bring about that very result. I am satisfied that he was not acting under provocation on the subjective basis that he did not experience a loss of self-control. I do not accept that this sane and normally rational person of at least moderate intelligence with no known predisposition to violent outbursts, nor being of a particularly sensitive temperament, responded to what he claims that Ms Kim was saying by losing self-control to the extent that there was a temporary suspension of his ability to reason.

32 It follows that there is a significant part of the offender's version of the circumstances attending the killing of Ms Kim that the jury did not, and I do not, accept. I accept that Ms Kim probably did say something disparaging about his wife. The offender said as much to his wife in a conversation he thought was private as between the two of them following his arrest.

33 I accept that these remarks were probably a result of the offender telling Ms Kim that he wanted to end his relationship, such as it was, with her. There may well have been an argument about this. I accept on the balance of probabilities that he became angry. I am not prepared to accept, even though it was conceded by the Crown, that there was an element of loss of self control. I am of the view that the decision to act as he did was borne of anger. The fact that the offender held Ms Kim to the floor, with a knee in her back, wrapped a strap around her neck and pulled tightly upon it until death was achieved is indicative of a cold and calculating decision made there and then to kill her.

34 There is no evidence upon which I could conclude that there was any planning or premeditation. This was conceded by the Crown. I accept that the intention to kill Ms Kim was formed on the spur of the moment.

35 The Crown Prosecutor submitted that I should find that the offence was aggravated by having been committed in the victim's home. After taking into account all the circumstances in which the offence was committed I am doubtful that this is a matter that elevates the seriousness of it by any real degree. Certainly Ms Kim was entitled to feel safe within her own home but the Crown Prosecutor's submission was to the effect that if they had gone out for a meal as they had planned and the argument developed away from the home then the offender might not have killed her. By the very fact that I am sentencing the offender for murder I am taking that into account.

36 I am satisfied that this offence falls just below the middle of the range of objective seriousness for offences of murder. As a consequence, I am not obliged to impose the standard non-parole period. It nevertheless, like the maximum penalty of imprisonment for life, remains significant as a benchmark against which to assess the appropriate sentence, including the non-parole period, to impose.

Co-operation with authorities and in the trial process

37 There are some other matters that should be taken into account in the assessment of sentence. The first is that the accused, whilst initially deceitful as to his knowledge of the death of Ms Kim, ultimately co-operated with police. He made admissions in a lengthy police interview following his arrest which were followed by further admissions being made when he was taken back to the crime scene. Whilst there were some untruths in relation to his state of mind at the time of the killing, the fact that he admitted responsibility for causing Ms Kim's death is something that should be taken into account in his favour.

38 In addition to this, the manner in which the trial was conducted is something for which he should receive some credit. He conceded that he was guilty of manslaughter and that relieved the Crown of having to prove that he was responsible for the death. Moreover, there was co-operation by way of facts being agreed, thus obviating the need for a significant number of witnesses to be called by the Crown.

39 Victim impact statements were received from Ms Kim's mother and brother. They inform me of their outrage, grief and sense of loss following her brutal and untimely death. They also express the enduring emptiness with which they have been left with their innocent loved one taken from them. I respect the sentiments underlying their views as to what the sentence should be but I trust they will understand that I am required to impose a sentence in accordance with the law.

40 There are well known limits upon the extent to which I can take into account the contents of victim impact statements: R v Previtera (1997) 94 A Crim R 76. However, I do acknowledge the grief and loss experienced by all members of Ms Kim's family and I extend to them my deepest sympathy.

41 Counsel for offender reminded me of what was said in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 about a consideration of special circumstances for the purposes of s 44 Crimes (Sentencing Procedure) Act 1999 not being limited to whether there is a need for a longer period of supervision on parole and that the primary perspective in determining the non-parole period is the length of the minimum period of actual incarceration.

42 There is also a need to guard against double counting, that is, taking into account features in assessing the overall sentence and again when assessing the length of the non-parole period: Simpson, supra, per Spigelman CJ at [67]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [18]. It is permissible to take matters into account in the assessment of both the total sentence and the non-parole period (see R v Barakat [2004] NSWCCA 201 per Greg James J at [30] - [31]) but care is needed in this respect: see, for example, R v Way [2004] NSWCCA 131; 60 NSWLR 168.

43 It was submitted that there should be a finding of special circumstances warranting a reduction in the proportion of the sentence to be represented by the non-parole period because the conditions under which the offender will serve his sentence will be "more harsh and onerous" than usual and that this will be the offender's first experience of a custodial sentence.

44 I have borne these matters in mind in the assessment of the overall sentence. I am not of the view that they also warrant a reduction of the non-parole period. It is important to bear in mind that the non-parole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: Simpson, supra, at [65].

45 The sentence should be back-dated so as to commence on the day the offender first came into custody.

46 Convicted Sentenced to imprisonment comprising a non-parole period of 16 years 6 months with a balance of the term of the sentence of 5 years 6 months. The sentence is to date from 18 March 2009. The offender will become eligible for release on parole upon the expiration of the non-parole parole period on 17 September 2025. The total sentence will expire on 17 March 2031.

05/07/2010 - Typographical error - Paragraph(s) Coversheet

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