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[2003] NSWSC 345
plaintiff. Doan was sentenced to imprisonment for seven years commencing on 23 July 2004, with a non-parole period of three and a half years; he was eligible for release on parole on 22 January 2008.
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Doan was sentenced for attempted murder after holding the victim's legs while another man tried to strangle him. The judge considered the crime serious, but also accepted that Doan's role was limited and reluctant and that he had not planned the abduction or killing. His late guilty plea received some weight, but the judge questioned his insight into the gravity of the crime. The judge considered his rehabilitation prospects and the sentence he was already serving, then imposed seven years' imprisonment with a three-and-a-half-year non-parole period.
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In R v Doan [2003] NSWSC 345, Hidden J gave sentencing remarks after Hai Long Doan pleaded guilty to attempted murder. The plea was accepted by the Crown on the fourth day of a trial in which Doan had faced a murder charge, alleged on the basis that he was a principal in the second degree (paragraph 1). The judgment concerns sentence, not a trial determination of guilt on the original murder charge.
The offence arose from events on 7 August 1996. The deceased, Hoang Huy Le, was an eighteen-year-old student. A group of young men escorted him from a coffee shop in Bankstown, took him to a park and assaulted him. The judge found that Doan did not take part in this first attack (paragraph 3). The group then took Le to a house at Villawood, where he was detained and assaulted again. N tried to strangle him with wire. At T's request, Doan held Le's legs during that attempt. The judge identified this act as the conduct constituting Doan's participation in the attempted murder (paragraph 4).
Afterwards, Doan helped put the unconscious Le into a car. He was told to drive to a construction site and remain in the car while others disposed of Le (paragraph 5). N then stabbed Le in the throat. The judge accepted that Doan did not know N intended to stab Le and learned of the stabbing only as the group drove back to Villawood (paragraph 6). Le died shortly afterwards.
The Court accepted that Doan had not joined in planning the abduction or killing and became involved that afternoon. It accepted that he did not know why Le was being treated this way, that he feared N and T, and that he acted out of fear for his own safety and his sister's safety. The judge also noted that N had a reputation for violence in the Vietnamese community (paragraph 9). The Crown described N and T as the prime movers and Doan's participation as minimal and reluctant, a characterisation the judge recorded as fair (paragraph 10).
The judge also considered Doan's background, age, criminal history, drug use and conduct in custody. He was eighteen at the time of the offence, and the offence had occurred almost seven years before sentence (paragraphs 11, 21). His later convictions were all for offences committed after the attempted murder. The judge expressly did not use them to assess culpability for this offence, but treated them as relevant to rehabilitation prospects (paragraph 11). The sentence was seven years' imprisonment, commencing on 23 July 2004, with a three-and-a-half-year non-parole period. The judge stated that Doan would be eligible for parole on 22 January 2008 (paragraph 24).
The sentencing explanation balances the seriousness of the offence against Doan's individual participation. Hidden J said that attempted murder was serious, but cautioned against losing sight of Doan's “very limited role” in the episode of sustained brutality (paragraph 19). That distinction matters to the reasoning: the sentence was not assessed as though Doan had planned or carried out the whole course of violence. The judgment identifies what he did, what he did not do, and what the Court accepted about his state of knowledge.
The Court's assessment of role was grounded in the accepted facts. Doan did not join the initial assault, was not a party to planning, and did not know N would stab Le. His most direct participation in the strangling attempt was holding Le's legs at T's request (paragraphs 3–6, 9). The Crown's description of Doan's involvement as “minimal and reluctant” reinforced that account (paragraph 10). The judge did not treat those circumstances as removing the seriousness of attempted murder; rather, they informed the measure of Doan's culpability in sentencing.
The plea received some weight despite its timing and scope. It was entered very late, during the murder trial, and was to attempted murder rather than the indicted offence of murder (paragraph 20). The judge considered that Doan might have argued at trial that Le was already unconscious and that Doan believed him to be dead when he held his legs. The judge said it could not be said that Doan would inevitably have been convicted of murder. Against that background, the plea had some utilitarian value, but the judge did not quantify a discount. The plea also provided some confirmation of remorse, though the judge questioned the extent of Doan's insight because he maintained the account he would have advanced at trial (paragraph 20).
Rehabilitation was another component, not a guarantee of a particular outcome. The judge considered Doan's difficult family and educational background, limited employment, heroin use, and his participation in drug and alcohol and education programmes while in custody (paragraphs 12–18). The psychologist described him as socially isolated, passive and susceptible to others' influence; the pre-sentence report identified self-esteem and coping skills as areas for intervention (paragraphs 17–18). The judge said recent custodial behaviour provided “some hope” for rehabilitation, while also recognising the criminal record and breaches of parole (paragraph 21).
Finally, the judge considered totality because Doan was already serving substantial terms and was not eligible for release on parole until 23 July 2005 (paragraphs 11, 22). The Court accepted that special circumstances warranted a shorter than usual minimum term. It considered that partial, rather than total, accumulation would address totality. The judge described the practical effect as requiring a further two and a half years' imprisonment before eligibility for release, followed, if released, by a further three and a half years subject to parole (paragraph 23). The operative order then set the sentence commencement date, term and non-parole period (paragraph 24).
This judgment is a case-specific sentencing decision. It does not purport to announce a comprehensive new rule about attempted murder, pleas, totality or rehabilitation. Its reasoning instead shows how Hidden J applied those considerations to the facts accepted for Doan's sentence.
The remarks expressly address the Crimes (Sentencing Procedure) Act. The judge stated that because the plea was entered in June 2002, the sentencing exercise was unaffected by amendments introduced at the end of that year, referring to Part 7 of Schedule 2, particularly clause 45(2) (paragraph 23). The judgment does not set out the text of that transitional provision or explain the amendments in detail. Accordingly, the source supports the conclusion that the judge considered the amendments inapplicable to this sentencing exercise, but does not by itself establish a broader account of the statutory position before or after those amendments.
The judgment's principal contribution in the text provided is an example of sentencing reasoning, rather than a statement that changes the law. It shows the judge considering the offence's seriousness alongside the offender's actual involvement, the circumstances of the plea, rehabilitation information and the interaction with a sentence already being served (paragraphs 19–23). It also makes a distinct point about the post-offence record: the later crimes were not used to assess culpability for the 1996 attempted murder, though they were relevant to rehabilitation prospects (paragraph 11).
No later state of the law can be established from this judgment alone. The supplied text does not identify a later court's treatment of Doan, nor does it provide later statutory amendments or authorities. The remarks refer to sentences imposed on other participants, but say their circumstances were markedly different and counsel agreed they could be disregarded for Doan's sentence (paragraph 19). Those references are part of the sentencing context, not a claim that the other sentences established a general rule.
At paragraph 19, Hidden J wrote: “it is important not to lose sight of the very limited role he played”. In plain English, the judge considered the whole violent episode but did not attribute every participant's conduct to Doan when assessing his sentence. The facts the judge accepted included that Doan held Le's legs during the attempted strangling, but did not participate in the earlier assault and did not know of the later stabbing in advance (paragraphs 3–6).
At paragraph 20, the judge said the guilty plea deserved “some weight”, although it was “very late” and related to an offence less serious than the one charged. This means the plea counted in Doan's favour to some extent, but did not receive an unlimited or quantified reduction. The judge considered both the plea's practical value and the possibility that the murder charge might not inevitably have resulted in a murder conviction on the account Doan would have advanced at trial.
At paragraph 21, the judge said Doan's recent custodial behaviour provided “some hope for his rehabilitation”. The qualification matters: the judge acknowledged positive steps, including education and treatment, while also noting the criminal record and breaches of parole. The judgment records rehabilitation as a relevant consideration, not as a promised result.
At paragraph 22, the judge said totality would be met by “partial, rather than total, accumulation”. In plain terms, the new sentence was not to operate wholly at the same time as the sentence already being served, nor was it treated as wholly additional in a way that disregarded the combined effect. The order's dates and terms appear at paragraphs 23–24. The decision does not set out a general formula for calculating accumulation in other cases.
At paragraph 24, the operative order imposed seven years from 23 July 2004, with a three-and-a-half-year non-parole period, and specified eligibility for release on parole on 22 January 2008. Those are the actual sentencing terms stated in the judgment.
The judgment is most directly relevant as an example where an offender's sentence concerns a serious offence but the judge finds the offender's role materially more limited than the principal participants' roles. The specific facts included no participation in the first assault, no involvement in planning, holding the victim's legs during an attempted strangling, and no prior knowledge of the eventual stabbing (paragraphs 3–6, 9–10). The remarks may be useful for identifying the kinds of distinctions a sentencing court considered in this case. They do not establish that similar facts must produce the same sentence.
It is also relevant where a guilty plea is entered late and is to a lesser offence than that originally charged. Doan pleaded to attempted murder on the fourth day of a murder trial. The judge considered the plea's timing, the difference between the charged and pleaded offences, its possible utilitarian value and the account that might have been advanced at trial (paragraphs 1, 20). The case does not state a fixed discount for that combination of circumstances.
The remarks may also be relevant to a sentencing analysis involving later convictions, rehabilitation evidence and an existing sentence. Here the later convictions post-dated the offence and were excluded from the assessment of culpability for it, while remaining relevant to rehabilitation prospects (paragraph 11). The judge also considered programmes and progress in custody, and the continuing support of Doan's sister (paragraphs 16, 21). For totality, the offender was already serving substantial terms and the Court chose partial accumulation after finding special circumstances (paragraphs 11, 22–24).
These are features of Doan's case, not a checklist or a prediction. The judgment does not say that fear, youth, limited participation, a late plea or rehabilitation programmes will have the same weight in another sentencing exercise. It records the judge's evaluation of those matters on this particular evidentiary and procedural record.
The supplied judgment contains no account of later cases that cite, follow, distinguish or otherwise treat R v Doan. No later-court treatment can therefore be verified from this source. The judgment itself names other sentencing decisions concerning participants in the same events: Kirby J sentenced N after a guilty plea to murder, Hidden J sentenced T after a guilty plea to murder as a principal in the second degree, and Hidden J sentenced another young man with more limited involvement for non-violent offences (paragraph 19). But the remarks say those circumstances differed markedly and that counsel agreed the sentences could be disregarded for Doan's purposes. Those are contextual references within this decision, not evidence of later treatment of Doan.
The judgment also refers to the Crimes (Sentencing Procedure) Act amendments and the transitional provision in Part 7 of Schedule 2, particularly clause 45(2) (paragraph 23). The source does not explain how another court later interpreted that provision, or whether the provision was subsequently amended or considered in other decisions. Any account of subsequent statutory or judicial developments would require sources beyond the text supplied here.
Several matters are left unresolved by the remarks. First, the decision does not set out a general method for weighing the seriousness of attempted murder against an offender's comparatively limited role. It gives the judge's evaluation of this case and the facts supporting it, but not a scale or rule for applying the same assessment elsewhere (paragraphs 19, 24).
Second, the judge declined to quantify the plea's effect, and neither counsel suggested a quantified discount (paragraph 20). The judgment explains why the plea received some weight, but not how its value would compare with an earlier plea or a plea to the original charge.
Third, the remarks do not provide the full statutory text of the transitional provision, or a broader explanation of the amendments to the Crimes (Sentencing Procedure) Act. They state the judge's conclusion that the amendments did not affect this sentence because the plea was entered in June 2002 (paragraph 23). The source alone cannot answer how the provision applies in a different procedural timeline.
Fourth, the decision identifies rehabilitation considerations but does not determine how Doan's subsequent conduct unfolded. The judge noted his programme participation, education, drug-free period in custody and support network, while recognising the concerns raised by his criminal record (paragraphs 11, 16–18, 21). The remarks express a sentencing assessment at that time, not a later finding about rehabilitation.
Finally, the source does not establish the judgment's subsequent precedential influence. No later authorities are included, and the decision itself does not discuss how its approach might be applied in different factual settings. Any statement about later treatment or current law would need additional legal sources.
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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.
Last Modified: 05/02/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
R
Doan
Doan was sentenced to imprisonment for seven years commencing on 23 July 2004, with a non-parole period of three and a half years; he was eligible for release on parole on 22 January 2008.