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Court of Criminal Appeal 16 December 2004

R v KWON

[2004] NSWCCA 456

Homicide
MANSLAUGHTER SENTENCE CROWN APPEAL

Citation: R v Kwon [2004] NSWCCA 456
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2004
Judge(s): Tobias JA; Hulme J; Adams J

Background

The respondent, a Korean national residing in Australia on a temporary visa, pleaded guilty to manslaughter following a persistent and unprovoked physical attack on the deceased. During the assault, the respondent struck the deceased repeatedly about the upper body and head, including while the deceased was on the ground. The cause of death was a massive basilar subarachnoid haemorrhage.

At first instance, Dowd J in the Supreme Court sentenced the respondent to a head sentence of four years, with a non-parole period of twenty months. His Honour took account of the respondent's good character, remorse, and the hardships faced in custody due to cultural and language barriers.

The Crown appealed, contending that the sentence was manifestly inadequate, that the discount for the guilty plea and assistance to authorities was excessive, and that the finding of special circumstances justifying a reduced non-parole period was in error.

  • Whether the four-year head sentence was manifestly inadequate for manslaughter in circumstances involving a persistent and unprovoked attack
  • Whether the discount of 33.33% for guilty plea and assistance to authorities was unjustifiably generous
  • Whether the sentencing judge erred in finding special circumstances to reduce the non-parole period below the statutory proportion
  • Whether the loss of a business and the prospect of deportation could properly be treated as punishing consequences of the offending, relevant to the sentencing exercise

Decision

The Court agreed that the four-year starting point was lenient, but found it was not manifestly inadequate when two significant factors were taken into account. First, the respondent and his family held only temporary visas; as a result of the offending, his family had already been required to leave Australia and he would be deported upon completing his sentence. The Court treated the permanent loss of any prospect of settling in Australia as something of real value, and therefore a genuine punishing consequence of the offence. Second, the respondent had built and then lost a substantial tiling business, including a contract to tile 130 apartments for a major developer, as a direct consequence of his custodial sentence.

On the guilty plea discount, the Court found that the 33.33% discount was too high. However, applying what the Court considered an appropriate discount of 25% to the starting point produced a head sentence of three years, which the Court did not regard as manifestly inadequate. Adams J found the respondent had not provided assistance to authorities that would justify any uplift beyond that 25% figure.

Regarding special circumstances, the Court noted that Dowd J's reasons had addressed subjective matters in a cumulative fashion rather than applying them twice over. Although the reasons could have been clearer in distinguishing the factors relevant to the head sentence from those relevant to special circumstances, the Court did not conclude this resulted in an impermissible doubling-up. The non-parole period of twenty months was found not to be manifestly too lenient.

Looking at the sentence overall, the Court concluded it fell within the applicable range in the particular circumstances of the case, even though an error had been made in the discount applied. The Crown appeal was dismissed.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that deportation and the associated permanent loss of the opportunity to settle in Australia can properly be treated as punishing consequences of an offence, relevant to assessing whether a sentence is manifestly inadequate.
  • Loss of a business built up by the offender, resulting directly from a custodial sentence, may similarly constitute a punishing consequence capable of bearing on the sentencing assessment.
  • Hardship suffered by an offender's family from being unable to settle in Australia does not, without more, fall within the narrow category of exceptional family hardship warranting mitigation of sentence.
  • A guilty plea discount of 33.33% was held to be unjustifiably generous; 25% was treated as the appropriate upper limit on the facts, consistent with the approach established in Thomson and Houlten (49 NSWLR).
  • In dismissing the appeal, the Court applied the principle that a resulting sentence within the appropriate range will not be disturbed on Crown appeal even where an error in one component of the sentencing exercise is identified, provided the overall sentence is not manifestly inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (statutory non-parole period proportion)

Cases:
- R v Olbrich (1999) 199 CLR 270
- Shepherd v R (1990) 170 CLR 573
- Chamberlain v R (No 2) (1984) 153 CLR 521
- R v Khouzame [2000] NSWCCA 505
- R v Blacklidge (Unreported, CCA, 12 December 1995)
- R v McDonald (Unreported, CCA, 12 December 1995)
- Edwards (1996) 90 A Crim R 510
- R v Byrne (Unreported, CCA, 5 August 1998)
- R v Thomson and Houlten (2000) 49 NSWLR (sentencing discount principles)