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Supreme Court 30 April 2003

R v Doan

[2003] NSWSC 345

Assault & violenceHomicide
CRIMINAL LAW: SENTENCE ATTEMPTED MURDER.

Citation: R v Doan [2003] NSWSC 345
Court: Supreme Court of New South Wales
Date: 30 April 2003
Judge(s): Hidden J

Background

In August 1996, an eighteen-year-old student was abducted, assaulted, and ultimately murdered in Sydney's south-west. The offender, also eighteen at the time, became involved in the incident on the afternoon of 7 August 1996, without any prior knowledge of or participation in planning the abduction or killing.

The offender's criminal liability for attempted murder arose from a single act: holding the victim's legs at the request of one of the principal offenders while another attempted to strangle the victim with a piece of wire in a Villawood garage. The offender was not involved in the earlier assault at a park, and was unaware that the principal offender later intended to stab the victim at a construction site in Chester Hill, where the victim died.

The offender was not charged until January 2001, after making admissions to police. He was put on trial for murder in June 2002, on the basis of involvement as a principal in the second degree. On the fourth day of trial, the Crown accepted his plea of guilty to the lesser charge of attempted murder, and the matter proceeded to sentencing.

  • What weight should be given to the offender's minimal and reluctant participation, and his claimed fear of the principal offenders, in assessing the appropriate sentence for attempted murder?
  • How should the offender's subsequent criminal record be treated in the sentencing exercise, given that all later offences were committed after the subject offence?
  • What approach was appropriate to accumulation, non-parole period, and totality, given the offender was already serving substantial custodial terms?
  • Whether special circumstances existed to justify a shorter than usual minimum term (non-parole period) relative to the total sentence.

Decision

Hidden J accepted the Crown's characterisation of the offender's role as both minimal and reluctant. The court found that the offender participated out of genuine fear for himself and his sister, who was living at the house where the detention occurred. The two principal offenders were identified as the "prime movers," one of whom had a significant reputation for violence in the local Vietnamese community. The offender had no prior knowledge of the attack's planning.

The court declined to take the offender's subsequent criminal record into account when assessing his culpability for the attempted murder, since all later offences post-dated the subject crime. However, that record was treated as relevant to the offender's prospects of rehabilitation, which were assessed as modest but not without hope, particularly given his engagement with educational and drug and alcohol programs while in custody.

The guilty plea, entered during trial rather than at an early stage, was given limited utilitarian value. The court noted that the offender maintained at sentencing the same account he would have advanced at trial, including a claim that he believed the victim was already unconscious and possibly dead when he held the legs. Hidden J observed this raised questions about the depth of the offender's insight into his own conduct, while acknowledging the plea offered some confirmation of expressed remorse.

On totality and accumulation, the court found that partial accumulation of the new sentence on the existing non-parole period was appropriate, rather than full accumulation. Special circumstances were accepted, warranting a longer additional (parole) period relative to the non-parole period, to support the offender's rehabilitation upon eventual release and provide adequate supervisory oversight by Probation and Parole.

Orders Made

  • The offender was sentenced to seven years imprisonment, commencing 23 July 2004.
  • Non-parole period of three and a half years.
  • Eligible for release on parole on 22 January 2008.

Key Takeaways

  • A finding of minimal and reluctant participation, coupled with credible evidence of coercion or fear, can significantly affect the weight attributed to an offender's role in a joint criminal enterprise at sentencing.
  • Where an offender's subsequent criminal record post-dates the subject offence entirely, the Supreme Court held that record could not be used to elevate the offender's assessed culpability for that earlier crime, though it remained relevant to rehabilitation prospects.
  • Special circumstances warranting a reduced non-parole period relative to the head sentence were established here both by the desirability of fostering rehabilitation and by the practical need to accumulate the new sentence appropriately on an existing custodial term.
  • The principle of totality does not invariably require full accumulation of sentences; partial accumulation was found appropriate in this case to balance the gravity of the offence against the overall time to be served.
  • A guilty plea entered during trial carries limited utilitarian value, and where the account given at sentencing mirrors the defence that would have been run at trial, a court may question the depth of the offender's insight, even while treating the plea as some evidence of remorse.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including Pt 7 of Sch 2, cl 45(2)

Cases:
No cases were cited in the portions of the judgment provided.