ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-40000801-0000

DATE: 20140415

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOON SUNG KIM

Defendant

Sharna Reid and Tara Brun, for the Crown

Harry Hong, for the Defendant

HEARD: March 12, 2014

MOLLOY J.:

REASONS FOR SENTENCING

A. INTRODUCTION

[1] Joon Sung Kim was convicted by a jury of second degree murder. The mandatory sentence for murder is imprisonment for life, and that is the sentence I impose. A person found guilty of first degree murder is not eligible to be considered for parole for 25 years. For second degree murder convictions, the period of parole ineligibility runs from a minimum of 10 years to a maximum of 25. The sole issue now before me is whether to increase the period of parole ineligibility for Mr. Kim beyond the 10 year minimum.

[2] The Criminal Code directs that in considering whether to increase the period of parole ineligibility, I should have regard to the nature and circumstances of the offence, the character of the offender, and any recommendations of the jury.[^1]

[3] The Crown submits that Mr. Kim ought not to be eligible for parole for 13 years. Defence counsel urges me to impose the minimum 10 year period.

[4] Having taking all of these factors into account, as well as the usual principles of sentencing, I find that the appropriate period of parole ineligibility is 12 years. My reasons for this decision follow.

B. GOVERNING PRINCIPLES

[5] The Criminal Code mandates that I take into account, in addition to the recommendations of the jury, the nature of the offence, the circumstances surrounding its commission, and the character of the offender.^2 It is well-recognized in the case law that a consideration of these factors will inevitably draw the trial judge into a consideration of all of the traditional factors relevant to sentencing, such as punishment, deterrence, denunciation, the protection of society, and the prospects for rehabilitation. This will also involve a consideration and weighing of mitigating and aggravating factors.[^3]

[6] The determination of the appropriate period of parole ineligibility is highly “fact-sensitive.”[^4] However, principles of parity in sentencing are still applicable. To the extent possible, similar offenders should be treated similarly in respect of similar crimes.

[7] Finally, it is not necessary to establish that there are “unusual circumstances” in order to justify a departure from the minimum 10 year period of ineligibility. The correct approach is to regard the 10 year period as a “general rule”, which can be ousted where an assessment of the criteria set out in the Criminal Code brings the sentencing judge to the conclusion that the period should be extended.[^5] Further, “the power to extend the period of parole ineligibility need not be sparingly used.”[^6]

[8] The legislative intent behind the sliding scale for parole ineligibility is the recognition that, “within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability.”[^7] Second degree murder can be very close to the planning and deliberation required for first degree murder, or it can be at the other end of the spectrum, closer to manslaughter. Clearly a 25-year parole ineligibility for second degree murder will be at the very highest end of the spectrum, both with respect to the circumstances of the offence itself and the moral blameworthiness and dangerousness of the offender. The question in each case is where the particular circumstances of the offence and offender fall along that spectrum.

D. CIRCUMSTANCES OF THE OFFENDER

[9] There is nothing about the personal circumstances of Mr. Kim to warrant an increase above the 10-year minimum period of ineligibility.

[10] Mr. Kim is 40 years old and was born and raised in South Korea. His parents separated when he was 9 years old, and he was raised by his father and step-mother. He moved to Canada in 1998 and is a permanent resident here, but not a citizen. He married in 2002 and has a son and daughter, now aged 4 and 10 respectively. After his arrest, Mr. Kim’s wife returned to Korea with the two children. He remains close to his father.

[11] Mr. Kim has a high school education. He was working as the manager of a restaurant/bar in Toronto at the time of the murder. He had also recently required a license to drive trucks, but had not started work in that field prior to his arrest. He has no criminal record and no history of violence.

[12] Mr. Kim does not accept responsibility for his crime, maintaining that he acted in self defence. This is consistent with his not-guilty plea at trial and is not a negative factor. Mr. Kim has expressed his regret over the death of Victor Seung, who he considered to be a friend, and has shown sympathy for the family of his victim. This does show a certain degree of remorse.

C. NATURE AND CIRCUMSTANCES OF THE OFFENCE

The Test

[13] In considering the nature and circumstances of the offence, it is appropriate to take into account only those factors that bring this case beyond the minimum requirements for second degree murder. The requisite elements of second degree murder have already been reflected in the mandatory life sentence, the most onerous punishment available in our criminal justice system. It is only those circumstances that can be said to be aggravating beyond the essential elements for second degree murder that will justify an increase above the 10-year minimum for second degree murder.

[14] Victor Seung was stabbed to death while he was sitting in the driver’s seat of his car. There was no question that Mr. Kim caused Victor Seung’s death. Indeed, he turned himself into the police the next day and testified at trial, admitting that he was the one who inflicted the fatal wounds. However, Mr. Kim claimed that he had been attacked by Mr. Seung and had been acting throughout in self defence.

[15] The Crown relies on four aggravating factors to support a parole ineligibility period beyond the statutory minimum: (1) the nature and severity of the wounds inflicted on Mr. Seung; (2) the fact that Mr. Kim lured Mr. Seung to a remote location where he then killed him; (3) the fact that Mr. Kim showed up for a scheduled meeting with Mr. Seung armed with a knife; and (4) the steps taken by Mr. Kim after the killing in order to evade detection.

[16] Mr. Kim was charged with second degree murder and was convicted of that offence. It is a necessary inference from that verdict that the jury therefore concluded that Mr. Kim was not acting in self-defence when he caused Mr. Seung’s death. However, the precise reasoning of the jury and the basis upon which they reached their conclusion cannot be discerned from their verdict. In that situation, I must engage in some amount of fact-finding in order to consider the aggravating factors asserted by the Crown. In respect of those factors relied upon by the Crown as aggravating, the onus is on the Crown to establish the supporting facts beyond a reasonable doubt. Any mitigating factors relied upon by the accused need only be established on a balance of probabilities.[^8]

Mr. Kim lured the deceased to a remote location and then attacked him

[17] It is clear from the evidence of the witnesses at trial that Mr. Kim had made arrangements to meet with Mr. Seung at the Turbo Lounge on the night of December 1, or early hours of December 2, 2011. Mr. Seung, his girlfriend Lisa Tu and another friend had previously been across the street at a different restaurant. At about 12:30 am, Mr. Seung decided they should all go across to the Turbo Lounge because he needed to meet Mr. Kim there, and they did so. The Turbo Lounge closed at approximately 3:00 a.m., by which time Mr. Seung was still waiting and Mr. Kim still had not arrived.

[18] There were numerous text messages between Mr. Kim and Mr. Seung during this period of time. Mr. Kim admitted in his testimony that the original plan was that he was going to meet Mr. Seung at the Turbo Lounge. He said that the purpose of the meeting was for him to make an interest payment to Mr. Seung on an outstanding loan.

[19] I found Lisa Tu to be a very reliable and credible witness. She testified that at about 1:15 a.m. Mr. Seung received a text from Mr. Kim stating that he was on his way. She said that she actually saw that text, and I believe her. The cell phone records disclose that Mr. Seung sent a text message to Mr. Kim at 1:32:12 a.m. and Mr. Kim sent a text to Mr. Seung at 1:32:44 a.m., which I find confirms Ms Tu’s evidence about the message she saw. Ms Tu decided to go home at 1:45. After arriving home at 2:15, she texted Mr. Seung to let him know she had arrived safely. She testified that as of about 2:30 a.m. when she last heard from Mr. Seung, he was still waiting for Mr. Kim to arrive. Again, I accept this evidence as reliable and truthful.

[20] Terence Lee is a Toronto lawyer who was a close personal friend of Victor Seung. He exchanged a number of text messages with Mr. Seung between 1:00 and 3:00 a.m. in which they joked around, Mr. Seung said he was at the Turbo, and Mr. Lee invited him to drop by his apartment for a beer. Mr. Seung said he would. At 2:45, they spoke on the phone and Mr. Seung said he was coming over to Mr. Lee’s apartment, which was a few blocks south of the Turbo Lounge. I accept Mr. Lee’s evidence on this point. He had a good reason to remember the timing because of the events that followed, and he had saved the texts on his phone and provided them to the police the next day. They corroborate his testimony.

[21] From this evidence, I am satisfied beyond a reasonable doubt that at about 11:30 p.m. Mr. Kim arranged to meet with Mr. Seung at the Turbo Lounge and that Mr. Kim failed to show up. There were numerous text messages back and forth between them, including a message from Mr. Kim at 1:32 that he was on his way. I am also satisfied on the evidence that Mr. Seung’s plan was to visit his friend Mr. Lee after he left the Turbo Lounge.

[22] Mr. Kim provided no reasonable or believable explanation for why he did not show up at the Turbo Lounge to meet with Mr. Seung as planned. He testified that he went to see a man who was experienced in business to get some advice for a friend of his father’s in Korea. He said he went to this man’s home without an invitation and without a phone call to confirm whether it was convenient and that he was there speaking to this man from 10:00 p.m. until 2:40 a.m. He was unable to provide the man’s address, telephone number, or even his name, referring to him only as “the President.” This evidence is completely incredible and I reject it. There is no plausible explanation for why Mr. Kim was unable to meet with Mr. Seung at the Turbo Lounge as he had agreed to do.

[23] Between 2:04 a.m. and 3:19 a.m., there were 22 text messages between Mr. Seung and Mr. Kim – 13 sent by Mr. Kim and 9 sent by Mr. Seung. The last exchange between them was a telephone call initiated by Mr. Seung at 3:21 a.m., which lasted for 15 seconds. The actual content of these text messages cannot be recovered. After killing Mr. Seung, Mr. Kim threw away Mr. Seung’s cell phone in a location he claims not to remember, and erased all of the pertinent messages on his own cell phone. He said he erased his own phone messages for the convenience of his wife, which is a lie. In fact, he erased all of the messages after November 30, 2011, leaving older and less relevant messages on the phone. There would be no reason for the December 1 and 2 messages to be more “inconvenient” for his wife than messages substantially before that time. I conclude that the messages, if they had been recovered, would not have corroborated Mr. Kim’s evidence as to their content.

[24] According to Mr. Kim, Mr. Seung changed the location of their meeting, directing him to a remote parking lot behind a building at Yonge and Finch, some distance north of the Turbo Lounge. I do not believe this evidence, partially because I do not find Mr. Kim to be a truthful witness and partially because it simply does not make sense. There would be no reason for Mr. Seung to request a meeting further north than he was, when he was planning to head south from the Turbo to meet Mr. Lee after his appointment with Mr. Kim.

[25] In his examination-in-chief, Mr. Kim testified that after he left the President’s home he exchanged texts with Mr. Seung about where they should meet in light of the Turbo closing time. He said at that time that Mr. Seung told him that he would wait in the Turbo parking lot for him to arrive, but that he then got a telephone call from Mr. Seung saying since Kim was driving south towards Yonge and Finch, he (Mr. Seung) would drive north on Yonge Street and meet him at Yonge and Finch, in the parking lot behind the apartment building. He said that when he arrived at the designated parking lot, Mr. Seung was already there, waiting for him.

[26] Later, under cross-examination, Mr. Kim contradicted his own evidence about how this change in location was arranged. At that point in his evidence, he said that he drove to the Turbo parking lot, arriving at 3:10 a.m., but that there was nobody there. He then sent a text to Mr. Seung asking where he was and he was told to come to Yonge and Finch and to meet him there. He said he suggested that Mr. Seung come down to the Turbo, but that Mr. Seung told him to come to Yonge and Finch. According to Mr. Kim, he then headed towards Yonge and Finch, but had trouble finding the parking lot, and the telephone conversation was Mr. Seung giving him directions on how to find it.

[27] I completely reject the evidence of Mr. Kim as to how this meeting was set up. He was supposed to meet Mr. Seung at the Turbo Lounge and he stalled and delayed until the Turbo was closed so that he could meet Mr. Seung elsewhere. There was no reason whatsoever for Mr. Seung to request Mr. Kim to meet him north of where he was, and even further north of where he was going next. It is quite likely that these two men did meet up first in the parking lot at Yonge and Finch described by Mr. Kim in his evidence, given its proximity to the driveway where Mr. Seung’s car was later parked with his dead body inside. However, I find as a fact that this location was selected by Mr. Kim, not by Mr. Seung. I am satisfied of that fact beyond a reasonable doubt.

[28] It is clear from the evidence that Mr. Seung was stabbed while he was sitting in the driver’s seat of his own car. I reject Mr. Kim’s evidence that Mr. Seung first attacked him with a knife. Mr. Kim was not a truthful witness. Further, his version of how the attack occurred is incapable of belief. Mr. Seung was taller, stronger, younger, and more fit than Mr. Kim. If he attacked Mr. Seung with a knife, there would have been considerable injuries to Mr. Kim. Instead, there were virtually no injuries at all to Mr. Kim. In particular, there were no defensive wounds on Mr. Kim, indeed no wounds of any kind. By way of contrast, there were several defensive type wounds on Mr. Seung’s hands, clearly consistent with Mr. Seung trying to fend off a knife attack by Mr. Kim. I am also satisfied of these facts beyond a reasonable doubt.

[29] Accordingly, I conclude that Mr. Seung lured Mr. Kim to an isolated location and then attacked him with a knife. This is an aggravating factor in sentencing.

It is unclear who brought the knife

[30] It is very likely that Mr. Kim brought the knife with him when he got into Mr. Seung’s car. None of Mr. Seung’s friends who testified at trial recalled ever seeing him with a weapon. However, I cannot be certain of this fact. It is possible that the knife was in the car and Mr. Seung took advantage of it. I therefore do not find this to be an aggravating factor.

The nature and extent of the injuries are aggravating

[31] I agree with the Crown’s submission that the nature and extent of the injuries are an aggravating factor in this case. Mr. Seung was stabbed to death in a particularly brutal manner.

[32] There were two fatal wounds to Mr. Seung’s neck. The first was a long (9cm) vertical wound on the right side of Mr. Seung’s neck, which severed the carotid artery in two places. In addition, one wall of the right jugular vein was cut and various muscles were damaged. Dr. Michael Pickup, who performed the autopsy, testified that this wound resulted from at least two separate and overlapping injuries, one of which was a stab wound and the other (or others) having stab and incised components.

[33] A second fatal wound was in the lower front area of Mr. Seung’s neck. It measured 5.5 cm horizontally and also involved at least two separate and overlapping forces of both the stab and incised variety. The wounds inflicted in this area did the following: severed the windpipe; severed the esophagus; perforated the voice box; cut the anterior surface of the vertebral artery at the back of the neck; nicked the spine at the 5th cervical; cut through one wall of the left jugular vein; and damaged various muscles.

[34] Dr. Pickup testified that Mr. Seung was alive when these wounds were inflicted, but would have lost consciousness within seconds and died shortly thereafter. At some point after those fatal wounds, Mr. Kim delivered a penetrating stab wound to Mr. Seung’s right chest, which passed through the cartilage between two ribs, penetrated the thorax and superficially penetrated the right upper lung. This wound would also have been fatal were it not for the fact that Mr. Seung was either already dead, or nearly so, at the time it was inflicted.

[35] There were also other wounds in the neck area including to the front of the neck, mid-front neck, collarbone, right ear, and cheek as well as defensive wounds on both hands.

[36] These wounds were far more than needed to subdue, or even kill, Mr. Seung. The targeted nature of the wounds, to the neck and chest, cannot be ignored. These wounds demonstrate a ferocity of attack that is aggravating.

Mr. Kim took many steps to evade detection

[37] The location and volume of blood stains within Mr. Seung’s car confirm the evidence of Mr. Kim that Mr. Seung was seated in the driver’s seat of his car when he was killed. When the car was found with Mr. Seung’s body inside it was parked in a driveway beside a residential home a short distance from the parking lot at Yonge and Finch. The driveway was on the far-side of the house and was not normally used. Mr. Kim lived close by and would likely have known this neighbourhood.

[38] When found, Mr. Seung’s body was no longer in the driver’s seat, but rather upside down on the front seat passenger side, with his head and torso face-down towards the floor of the car, his thighs on the seat and his legs pointing up from there. Clearly, his body had been dragged from the driver’s seat and dumped upside down on the passenger side. Articles of clothing and bags had then been placed over the feet and legs, disguising the body from anybody who chanced by. Mr. Kim testified that he put the body in that position because he could not bear to look at it. That is simply untrue. If he did not want to look at it, he could just get out of the car and leave. The only reasonable inference is that he had to pull the body out of the driver’s seat so that he could get into it himself. He was the one who drove the car to that residential street and parked it in the driveway where it was found. He covered up the body so that it would not be seen as he was driving and as it sat in the driveway. I am satisfied of this beyond any reasonable doubt.

[39] Mr. Kim took many other steps in an attempt to cover up his crime.

• He disposed of the knife he had used to kill Mr. Seung

• When Terence Lee was texting Mr. Seung wondering where he was, Mr. Kim sent responding text messages from Mr. Seung’s phone pretending to be him.

• Mr. Lee made repeated telephone calls to Mr. Seung. Mr. Kim answered one of those calls and impersonated a police officer, telling Mr. Lee that Mr. Seung was under arrest and was being taken to the police station.

• After that, Mr. Kim threw away Mr. Seung’s phone.

• Mr. Kim also erased from his own phone all of his text messages and records of his phone conversations with Mr. Seung.

• He cleaned himself up and cleaned the blood out of his own car.

• He changed his clothes and threw away his bloody clothing in a garbage can outside a restaurant.

[40] It was only after all of these efforts to conceal his crime that Mr. Kim turned himself into the police. By then, his wife knew something was going on because of the bloody clothing. She also knew where he had discarded it. More importantly, Mr. Kim was getting direct calls from Terence Lee. He had to have realized at that point that Mr. Seung’s friends knew that he was going to meet with Mr. Kim that night and that the police would know he was the last person to see Mr. Seung alive. I am satisfied beyond a reasonable doubt that Mr. Kim only turned himself into the police when he believed that the discovery of his involvement was inevitable.

Conclusion: Aggravating and Mitigating Circumstances

[41] I am not satisfied on the balance of probabilities that Mr. Kim’s surrender to police was any indication of his remorse for killing Mr. Seung. He was understandably upset to find himself in this situation. However, I find he was more concerned about his own situation than he was about Mr. Seung. He took no real responsibility for the killing.

[42] That said, I accept as genuine his expressions of sympathy for Mr. Seung’s family, which he stated to the author of the pre-sentence report and also in the courtroom at the time of the sentencing. He has no criminal record and a blameless past. These are all mitigating.

[43] The aggravating factors are the brutality of the murder itself, and the fact that Mr. Kim lured Mr. Seung to the location of the killing and then attacked him. The efforts to avoid detection are somewhat aggravating, but not a significant factor in my analysis. Panic at the consequences of what he had done no doubt played some role in Mr. Kim’s actions immediately after the murder.

E. JURY RECOMMENDATIONS

[44] After delivery of the guilty verdict, I asked the jury to consider what, if any, recommendations they wanted to offer with respect to the period of parole ineligibility. I instructed them that the relevant factors for them to consider were: (1) the character of Mr. Kim; (2) the nature of the offence; and (3) the circumstances surrounding the commission of the offence.

[45] Two of the jurors chose to make no recommendation. Of the remaining 10 jurors:

• five recommended 10 years;
• one recommended 11 years;
• one recommended 12 years;
• two recommended 15 years; and,
• one recommended 25 years.

[46] Obviously, I am not bound by the recommendations of the jury. However, I am required to take them into account. The amount of weight that can be given to the jury recommendations will often depend on how much of the relevant information the jurors had at the time they made their recommendations. Sometimes, there is significantly greater material before the judge at the time of sentencing than there was before the jury at trial. This is frequently the case in respect of the character of the accused, particularly where he did not testify at trial.

[47] In this case, the jury was as knowledgeable about the nature of the offence and the circumstances surrounding its commission as I am today on sentencing. The jury had somewhat less information as to the character of the accused, but not significantly so. The pre-sentence report is the only information I have about Mr. Kim that was not before the jury. Although the pre-sentence report is generally positive, it reveals little about Mr. Kim beyond what the jury already knew. Mr. Kim testified at trial. It was apparent from his evidence that he did not have a criminal record, was gainfully employed, and had no history of violence. It was also known that he was married and had two young children. Mr. Kim’s father and his father’s companion were interviewed by the author of the pre-sentence report, but there was little information from them that would shed much light on the issue before the jury.

[48] Accordingly, while I have some additional information that the jury did not have, and while I would also give more extensive consideration to other sentencing principles such as parity, rehabilitation, and aggravating and mitigating circumstances, the jury in this case was well-positioned to provide an informed recommendation as to the appropriate period of parole ineligibility. In these circumstances, their recommendations are entitled to considerable weight.

F. ANALYSIS AND CONCLUSION

[49] Mr. Kim is a first time offender. He has a family, a high school education, and some aspirations to better himself. In these circumstances, rehabilitation is a very realistic prospect. This points towards a parole ineligibility period at or near the minimum.

[50] On the other hand, the circumstances of the crime, and in particular the weighing of the aggravating and mitigating factors, point to something above the minimum, although certainly not approaching the maximum.

[51] Denunciation and deterrence are always important concerns in sentencing for crimes of violence. However, given that a life sentence is being imposed, there is nothing about the particular circumstances of this murder that would mandate an increase in the parole ineligibility period in order to reflect these factors.

[52] The parity principle is relevant and it is therefore important to consider what has been done in similar cases. The Crown offered three cases as being comparable: R. v. Srun;[^9] R. v. Dahr;[^10] and R. v. Arroyo.[^11]

[53] In R. v. Srun the accused was 35 years old and a first-time offender. He killed one man and seriously injured another in a fight after a social event. He was convicted of second degree murder and Glass J. set the parole ineligibility period at 13 years. Aggravating factors were the danger to others at this social venue, the attack on the second victim, and the fact that the offender came to the fight with a broken beer bottle and a knife. Those aggravating factors are somewhat worse than in the case before me, but the mitigating factors are similar.

[54] In R. v. Dahr, the Court of Appeal upheld a 15-year parole ineligibility period in a case where the offender, a crack addict, killed his own father. He stabbed the victim 50 times in the head, neck, shoulders, arms and abdomen, stole his money and rented car, and stole his own sister’s morphine which she had to control the pain of her throat cancer. There were some issues of diminished mental capacity due to drug addiction and intoxication, as well as possible provocation. The brutality of the murder was the most significant aggravating factor. Overall, the circumstances of that case are worse than in the case before me.

[55] In R. v. Arroyo, a 12-year parole ineligibility period was imposed by the trial judge, and upheld on appeal. The offender had gotten into a fistfight with a complete stranger, and had pulled a knife, stabbing the other man twice, and causing his death. At trial, Mr. Arroyo pleaded self-defence and claimed that the other man was the initial aggressor and that he pulled the knife only after he was being badly beaten and his glasses had been knocked off. There was character evidence at sentencing to the effect that the offender was preoccupied with violence and habitually carried a knife around with him. However, he had no criminal record, strong family support and a good work history. These circumstances are close to the case before me, except for the circumstances of the knife. There is nothing like this kind of violent tendency in Mr. Kim’s past and there is no indication that he was typically armed with a knife. On the other hand, there are more aggravating circumstances in relation to the crime itself, which tend to balance out the overall situation.

[56] Defence counsel referred me to a number of decisions in which the minimum 10-year period of parole ineligibility was imposed: R. v. Pandurevic;[^12] R. v. Stiers;[^13] R. v. Pyne;[^14] R. v. Pattison;[^15] R. v. Tan;[^16] and R. v. Feng.[^17]

[57] Pattison is immediately distinguishable. The trial judge in that case found that any aggravating factors must be considered in light of the offender’s age, which meant that with a 10-year ineligibility period he would not be able to apply for parole until he was 68.

[58] I would also distinguish the case of Feng on its facts. The offender in that case stabbed the victim four times in the back as he was assaulting his sister. Although the jury convicted Mr. Feng of second degree murder and had therefore rejected his claim that he acted in self-defence, the trial judge’s findings placed heavy emphasis on the fact that he acted entirely without self-interest, was reluctant to the fray, and was only interested in protecting the young woman who was being assaulted by the deceased. Further, Mr. Feng stayed with the victim, called 911 and was desperately trying to save the victim’s life at that point. He showed immediate and genuine remorse and had many other mitigating factors supporting the minimum period of parole ineligibility. That is not similar to Mr. Kim’s situation.

[59] In R. v. Pyne, the trial judge (sitting without a jury) rejected the accused’s evidence that he acted in self-defence, convicted the accused of second degree murder, and increased the period of parole ineligibility to 12 years. The Court of Appeal upheld the conviction but found that the trial judge had fundamentally misapprehended an aspect of the evidence that he had relied upon as an aggravating factor in sentencing. The trial judge had found that the accused “made a concerted and prolonged effort to avoid responsibility for his actions while, showing on that night and throughout the ensuing time, no concern for the welfare of [the deceased].” The Crown conceded on the appeal that this was incorrect. When Mr. Pyne fled the scene he was aware that the victim’s friends were tending to him. The Court of Appeal noted that Mr. Pyne’s initial flight was understandable in view of his perceived risk of danger at the hands of the deceased’s friends and that he had surrendered to the police shortly after the event along with an admission of responsibility for causing the death. In light of this error, the Court of Appeal reduced the parole ineligibility period to 10 years.

[60] The circumstances in Stiers are unusual. The offence occurred in September 2003 and the accused was held in custody. He was convicted by a jury of first degree murder in December 2004. He appealed his conviction and the Court of Appeal substituted a verdict of second degree murder on May 26, 2010. Because the initial conviction was for first degree murder, there had been no jury recommendation and no ruling on the period of parole ineligibility by the trial judge. However, by the time of the Court of Appeal’s decision, the offender had already been in custody for nearly 7 years, during which he had both experienced considerable difficulty and also made considerable progress towards rehabilitation. The Court of Appeal took that into account as a significant factor in imposing the 10-year minimum period of parole ineligibility.

[61] The circumstances in Tan are also unusual. Mr. Tan had a dispute with the owner of a pawn shop, in the course of which he stabbed him twice and fled. This offence occurred in 2003, when Mr. Tan was 22 years old. At that time he had no criminal record. He fled Canada after the stabbing, and was subsequently extradicted back to Canada after he was arrested in Belgium for credit card fraud. His murder trial proceeded in 2011 and he was convicted of second degree murder. Once brought back to Canada, Mr. Tan confessed to the police, wrote a letter of apology to the family of the deceased, and showed remorse for his crime. In these circumstances, the trial judge found it appropriate to impose only the minimum 10-year period of ineligibility.

[62] Finally, the defence relies on the decision of Pandurevic in which MacDonnell J. decided not to impose anything beyond the 10-year minimum period. Mr. Pandurevic was 22 years old at the time of the offence and had a difficult childhood in Bosnia, including witnessing the shooting of his father by a sniper. He and his mother came to Canada as refugees. He had no criminal record, no history of violence and numerous letters of support attesting to his good character. Many of those referred to the offender’s remorse and the trial judge accepted that his remorse was genuine. In this regard, the mitigating factors in his favour are more significant than is the case for Mr. Kim. Mr. Pandurevic got into an altercation with the victim, in which Mr. Pandurevic produced a knife stabbed his victim several times. The victim fled and Mr. Pandurevic did not pursue him. However, Mr. Pandurevic then immediately told his mother what had happened and the two of them flew to Bosnia that very day. Six months later, Mr. Pandurevic returned to Canada and surrendered to police, another factor that puts him in a more favourable light than Mr. Kim. Finally, the trial judge relied on the jury recommendations. Only one juror recommended an increase beyond 10 years, and that juror recommended 12 years. Three jurors made no recommendation and eight recommended the minimum 10-year period.

[63] Taking all of these cases into account, I find that the range for Mr. Kim would be somewhere between the minimum and 14 years. It is interesting that (with the exception of one juror who recommended the maximum) the recommendations of the jurors in this case fall within 10 to 15 years, with five of them recommending the minimum.

[64] In view of the aggravating factors, I find that something above the minimum is required, but I would not go far beyond it. Taking all of these factors into account, I find that the appropriate sentence is life imprisonment with no eligibility for parole until Mr. Kim has served 12 years.

[65] In coming to that conclusion, I have not lost sight of the tragedy of this case, and the enormous loss suffered by Mr. Seung’s family, his friends and his community. The enormity of that loss is reflected in the life sentence imposed upon Mr. Kim.

[66] The 12-year period of parole ineligibility I have imposed does not mean that Mr. Kim will be released after serving 12 years; it only means that this is when he first becomes eligible for release. Whether he will be released will be up to the Parole Board and that decision will be based, in part, on how Mr. Kim conducts himself between now and then.

[67] In addition to this sentence, there will be a prohibition order for life (under s. 109 of the Criminal Code) and a DNA Order.

MOLLOY J.

Released: April 15, 2014

COURT FILE NO.: 12-40000801-0000
DATE: 20140415

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JOON SUNG KIM

Defendant

REASONS FOR SENTENCING

MOLLOY J.

Released: April 15, 2015

[^1]: Criminal Code, s. 745.4

[^3]: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227 at paras. 19‑23.

[^4]: Ibid, at para. 18.

[^5]: Ibid, at paras. 26‑27.

[^6]: Ibid, at para. 31.

[^7]: Ibid, at para. 29.

[^8]: R. v. Ferguson, 2008 SCC 6 at paras. 17‑18.

[^9]: R. v. Srun, 2013 ONSC 7938

[^10]: R. v. Dahr, 2012 ONCA 433

[^11]: R. v. Arroyo, [2005] O.J. No. 1092 (C.A.)

[^12]: R. v. Pandurevic, 2013 ONSC 3323

[^13]: R. v. Stiers, 2010 ONCA 656

[^14]: R. v. Pyne, [1997] 1472 (O.C.A.)

[^15]: R. v. Pattison, 2011 BCSC 1603

[^16]: R. v. Tan, 2011 BCSC 595

[^17]: R. v. Feng, 2012 BCSC 2082