R v Doan

Supreme Court of NSW|2003-04-30|Before: Hidden J

CITATION : R v Doan [2003] NSWSC 345 HEARING DATE(S) : 24/06/02, 18/12/02 JUDGMENT DATE : 30 April 2003

JUDGMENT OF : Hidden J at 1 DECISION : See para 24

CATCHWORDS : CRIMINAL LAW: sentence - attempted murder. LEGISLATION CITED : Crimes (Sentencing Procedure) Act PARTIES : Regina Hai Long Doan FILE NUMBER(S) : SC 70110/01 COUNSEL : Mr B Smith - Crown Mr K Horler QC - Offender SOLICITORS : SE O'Connor - Crown Voros Lawyers - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: In the early evening of 7 August, 1996 Hoang Huy Le, an eighteen year old student, was murdered in the south western area of Sydney. A number of young men were charged with involvement in the killing, including the offender, Hai Long Doan. In June last year he was put on trial for murder on the basis of involvement as a principal in the second degree. On the fourth day of the trial the Crown prosecutor accepted his plea of guilty to attempted murder. It is for that crime that he now stands for sentence.

Facts 2 I am indebted to the Crown prosecutor for a succinct summary of the facts for the purpose of sentence. Most of the others involved in this matter were under the age of eighteen at the time. It will be necessary to refer to two of them, but I shall do so by initials only. 3 In the afternoon of Wednesday, 7 August 1996 the deceased was escorted from a coffee shop at Bankstown by a number of young men, including the offender. He was taken to a car and driven to a park near the Bankstown City Sports Complex. There he was kicked and punched by four of the men, two of whom I shall refer to as N and T. The offender did not take part in this attack. The violence ceased when an eye witness approached, and the deceased was assisted back to the car. 4 The car was driven to a house at Villawood, where N and another man bound the deceased's wrists and detained him in a bedroom. He was later taken to the garage of the house, where he was punched by N, T and the other man. N also struck him across the back of the head twice with a piece of timber. N then tried to strangle him with a length of wire. T requested the offender to hold the deceased's legs while this was being done, and he did so. It is this act which constitutes his participation in an attempt to murder the deceased. 5 Shortly afterwards, at the request of N, the offender helped to place the deceased, then unconscious, into the car. He was instructed to drive to a construction site at Chester Hill and told to remain in the car while the other men disposed of the deceased. 6 The deceased was dragged onto the construction site, where N stabbed him a number of times in the throat with a knife which he had taken from the house. The deceased died shortly afterwards. The offender was unaware that N intended to stab the deceased, and was told of it only as the group drove back to the house at Villawood. 7 At about 6.30 am the next day the body of the deceased was found at the construction site. The appearance of the body and the surrounding area was consistent with his having been dragged to where he lay and stabbed in the manner I have described. From tests conducted at the scene, a forensic pathologist concluded that death had occurred by about 7.30 pm on 7 August. 8 The offender gave an account of his involvement to Ms Anita Duffy, psychologist, who has supplied a report, and he adhered to that account in evidence before me. While I find it to be somewhat sanitised, I accept it in relation to a number of relevant matters. 9 In particular, I accept that he was not a party to any planning of the abduction and killing of the deceased, and that he became involved in the incident only on the afternoon in question. He did not know why the deceased was being treated as he was, although he believed it may have related to conflict between Vietnamese gangs in the area. In fact, the motive for the killing remains obscure. I accept that he was afraid of the young men, N and T, and that he took the part he did out of fear for his own safety and that of his sister, Tran, who was living at the house at Villawood at the time. Despite his youth, N had an unenviable reputation in the Vietnamese community for violence. 10 The Crown prosecutor acknowledged that N and T were the "prime movers" in the incident, and fairly characterised the offender's participation as both minimal and reluctant.

Subjective case 11 The offender was eighteen years old at the time of the offence and is now twenty five. He was not charged until after he made relevant admissions to police in January 2001. Since the offence he has acquired a disturbing criminal record, including convictions for aggravated robbery with wounding, armed robbery, detaining for advantage and using a weapon to prevent his lawful detention. He is currently serving substantial terms of imprisonment and is not eligible for release on parole until 23 July 2005. However, all the offences on his record were committed after the crime of attempted murder with which I am dealing. Accordingly, I do not take that record into account in assessing his culpability for that crime, although it does bear upon his prospects of rehabilitation. 12 His background is quite disturbed. He was born in Vietnam, the first of his parents' two children. The other is his sister, Tran, who is about two years younger than him. Tran is now married and is living at Smithfield, and she has maintained regular contact with him while he has been in custody. 13 His parents separated when he was very young and he lived for some years with his grandparents. He then lived with his father, who had remarried and had several more children, but he did not get on with his stepmother nor, apparently, with his stepsiblings. He went to school until the age of about twelve or thirteen, leaving during year 5. He then worked with his father, who had a business transporting oil from Vietnam to Cambodia. 14 In the meantime his mother had come to Australia, where she also remarried and had a number of children. She sponsored the offender and his sister, Tran, to Australia in 1993. It seems that he had a satisfactory relationship with his stepsiblings from her remarriage. However, she separated from her husband and in recent years he has had little or no contact with her or her children. She has since formed a relationship with another man and moved to East Timor. 15 After he arrived in Australia he undertook a special English course and then attended high school from year 8 to half way through year 10. He found schooling difficult because he could not communicate adequately in English and he felt isolated from his fellow students. He began to associate with people whom he met outside the school environment. It was through those associations that he became involved in criminal activity after he left school in mid 1996. 16 He has had very little employment because of his language difficulty and his criminal record. He began to use heroin while he was first in prison and his usage increased after he was released on parole on that occasion. During that period he made no real effort to deal with the problem, but since being returned to custody he has participated in a drug and alcohol program and has remained drug free. He has also undertaken a number of educational courses, including an English language course, and he hopes to be accepted into a violence prevention program which would provide him, among other things, with assertiveness training. 17 In her report Ms Duffy found the offender to be "rather socially isolated, passive and detached", and expressed the view that his "personality construct … made him particularly susceptible to the influence of others." Consistently with this, she saw his involvement in the offence with which I am dealing as a result of his having "gravitated towards the company of young people who exerted a negative influence over him…" She concluded her report in this way: Hai shows the potential to respond well to counselling in structured programs such as the Lifestyles course completed in gaol. It may be useful for him to also undertake individual counselling to explore more personal issues that he may not be willing to disclose in a group setting. He also needs to work on means of developing a sense of autonomy and independence from the influence of others, particularly in the gaol setting. He will need close support by the Probation and Parole Service after his release from custody, and has the intellectual ability to benefit from comprehensive training towards employment. 18 I also have the benefit of a pre sentence report prepared by Ms Kerryn Lewis, Probation and Parole Officer. Her report concludes: The offender appears to have experienced some difficulties following his move to Australia after having to also cope with a relatively difficult family life in Vietnam. It seems that the offender has been displaced to some extent, not feeling a part of his father's new family in Vietnam, ending his schooling early and then travelling with his father, more likely being unable to develop any strong relationships. His move to Australia did not improve this situation, with a similar situation of not feeling a part of his mother's new family, nor being able to assimilate into the Australian culture and having problems with the English language. He seems to have gravitated to an older peer group, possibly to gain some self-esteem, but where he also became involved with drugs and offending. …

The offender has identified the likely risks upon his release as being his choice of friends, and his need to be assertive. The offender appears to require intervention around self-esteem issues and coping skills, which relate to his personal history and drug addiction. Ongoing programs in custody may assist Mr Doan to address these issues.

Sentencing factors 19 The crime to which the offender has pleaded guilty is, of course, serious. Nevertheless, it is important not to lose sight of the very limited role he played in the episode of sustained brutality which led to the death of the unfortunate Mr Le. Others involved in the incident have been sentenced, but the circumstances of their cases were markedly different from that of the offender and counsel were agreed that the sentences imposed upon them can be disregarded for present purposes. Kirby J sentenced N after he pleaded guilty to the murder of Mr Le. I sentenced T when he pleaded guilty to that murder as a principal in the second degree, but not long before that he had been sentenced by Sully J in respect of another unrelated murder. I also sentenced another young man whose involvement was even more limited than that of the present offender, and who pleaded guilty to offences which did not involve violence. 20 Some weight should be afforded to the offender's plea of guilty, even though it was very late and was to an offence less serious than that with which he had been indicted. Neither counsel suggested that I should quantify a discount for that plea, and I do not propose to do so. His case at trial would have been that the deceased was unconscious at the time he held his legs, and that he believed him to be already dead. This is a view of the facts which might have been available on the evidence, and it cannot be said that he would inevitably have been found guilty of murder. The plea has some utilitarian value, albeit limited, and affords some confirmation of his expression of remorse in evidence in the sentence proceedings. However, given that he maintained in that evidence the account which he would have advanced at trial, I must question the extent of his insight into the gravity of his crime. 21 The fact remains that this was his first offence, committed almost seven years ago when he was but eighteen years old. Notwithstanding his criminal record, which involves breaches of parole, I believe that his behaviour while in custody in recent times provides some hope for his rehabilitation. In that regard, the continued support of his sister, Tran, is important and valuable, as is the opportunity for education and counselling available to him while in custody. I trust that every effort will be made by the prison authorities to encourage him to undergo continued counselling, and to further his education and vocational training. 22 It is common ground that there are special circumstances warranting a shorter than usual minimum term. Quite apart from the desirability of fostering his rehabilitation, there must be some accumulation of the sentence which I pass upon the non-parole period which he is currently serving. He will become eligible for release only after serving a lengthy custodial term. The question of totality looms large but, in my view, that consideration would be met by partial, rather than total, accumulation. 23 As the offender's plea of guilty was entered in June 2002, my sentencing exercise is unaffected by any of the amendments to the Crimes (Sentencing Procedure) Act, introduced at the end of last year: see Pt 7 of Sch 2 to the Act, particularly cl 45(2). The effect of the sentence which I propose will be to require him to serve a further two and a half years imprisonment before being eligible for release and, if he is then released, to subject him to the sanction of parole for a further three and a half years. 24 Hai Long Doan, you are sentenced to imprisonment for seven years, to commence on 23 July 2004, with a non-parole period of three and a half years. You will be eligible for release on parole on 22 January 2008.

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