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9
Court of Criminal Appeal 19 July 2010

OH Hyunwook v R

[2010] NSWCCA 148

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE CONVICTED OF RECKLESS WOUNDING RELEVANCE OF RESTITUTION TO REMORSE STABBING TOOK PLACE WITHIN APARTMENT ERROR

Citation: OH Hyunwook v R [2010] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 19 July 2010
Judge(s): Beazley JA, Kirby J, Johnson J

Background

The appellant, a South Korean national in his late twenties living in Sydney, pleaded guilty in the District Court to recklessly wounding a fellow South Korean man with whom he shared an apartment. The offence arose from an alcohol-fuelled confrontation that began over a trivial dispute about a mobile phone contact. After threatening the victim repeatedly, the appellant grabbed him by the throat on two occasions, then retrieved a kitchen knife and stabbed the victim in the stomach.

The victim was taken to hospital, underwent surgery, and was left with an approximately 20-centimetre scar. He described lasting psychological effects including insomnia, fear of darkness, and an inability to trust others. The appellant was sentenced by Knox DCJ in the District Court to 1.5 years imprisonment, with an additional term of one year.

The appellant sought leave to appeal, arguing the sentence was excessive. The Crown opposed the appeal.

  • Whether the sentencing judge erred in treating restitution paid by the appellant as relevant to genuine remorse
  • Whether the sentencing judge erred in treating the offence as aggravated under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999, on the basis that it occurred in the victim's home (the parties shared the same apartment)
  • Whether the sentencing judge's failure to reference the standard non-parole period or characterise the offending as mid-range constituted a sentencing error
  • Whether, even if error were established, the Court of Criminal Appeal should intervene under s 6(3) of the Criminal Appeal Act 1912 to substitute a less severe sentence

Decision

The Court accepted that some error in the sentencing judge's approach could be identified. Specifically, the failure to reference the standard non-parole period of three years for the offence of reckless wounding, and the absence of any characterisation of where the offending sat within the range, constituted an error in the sentencing process.

On the aggravation question, the Court considered whether the offence was committed in the victim's "home" within the meaning of s 21A(2)(eb). Both the appellant and victim lived in the same shared apartment at the time, which raised the question of whether the shared dwelling could properly be called the victim's home for this purpose. The Court acknowledged the issue but did not need to resolve it definitively in light of its ultimate conclusion.

Despite identifying error in the sentencing process, the Court applied the test in s 6(3) of the Criminal Appeal Act 1912, as explained in R v Simpson. That provision requires the Court to form a positive opinion that some other sentence "is warranted in law and should have been passed." It is not enough to identify error alone. The Court concluded that the attack was sustained and serious: it began with repeated death threats, escalated through two episodes of choking, and culminated in a deliberate knife attack that caused a significant abdominal wound. Kirby J concluded that the appellant had in fact been dealt with leniently.

Because the Court was not satisfied that a less severe sentence was warranted in law, it declined to intervene and dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act 1912, identifying error in the sentencing process is a necessary but not sufficient condition for appellate intervention: the Court must also form a positive opinion that some other sentence is warranted in law and should have been passed.
  • A sentencing judge's failure to reference the standard non-parole period or characterise the offending as mid-range constitutes an error, but that error alone does not automatically produce a different sentence on appeal.
  • The question of whether a shared apartment constitutes the victim's "home" for the purposes of the s 21A(2)(eb) aggravating factor was flagged as legally significant in circumstances where both offender and victim resided at the same premises.
  • Restitution paid by an offender is capable of being relevant to an assessment of genuine remorse at sentencing, though its weight will depend on the circumstances.
  • In dismissing the appeal, the Court of Criminal Appeal noted that the sentence actually imposed appeared lenient given the sustained and escalating nature of the violence, which included repeated threats, choking, and a deliberate stabbing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) (aggravating factors)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Butters v The Queen [2010] NSWCCA 1
- Collon v R [2009] NSWCCA 187
- R v McEvoy [2010] NSWCCA 110
- Phan v R [2010] NSWCCA 8
- Corby v R [2010] NSWCCA 146
- R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338