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14
Supreme Court 8 May 2015

R v Do (No. 4)

[2015] NSWSC 512

HomicideDomestic & family violence
CRIMINAL LAW MURDER SENTENCE WIFE MURDERED BY HUSBAND NO PLANNING SUDDEN LOSS OF CONTROL

Citation: R v Do (No. 4) [2015] NSWSC 512
Court: Supreme Court of New South Wales
Date: 8 May 2015
Judge: Davies J

Background

The offender, a Vietnamese-born man aged 61 at sentencing, was convicted by jury of murdering his wife at their home in Cabramatta on 13 September 2012. The couple had met online, married in California in 2011, and relocated to Australia where the offender lived on a spousal visa sponsored by the deceased.

The relationship deteriorated in the months before the killing. The deceased had reportedly spoken to her daughters about sending the offender back to the United States, and the offender had been sleeping downstairs separately from his wife. The deceased was a businesswoman with financial independence; the offender was socially isolated, had very limited English, and was financially and emotionally dependent on her.

The attack was described as brutal and sustained. The deceased was stabbed four times to the head, suffered multiple blunt force injuries, and was asphyxiated, resulting in five broken bones in her neck. She sustained defensive injuries and survived for at least half an hour after the initial blunt force injuries. After the killing, the offender made an attempt on his own life before attending Cabramatta Police Station one week later.

  • Whether the killing was planned or the result of a sudden loss of control
  • The weight to be given to mitigating factors including the offender's age, prior good character, limited English, social isolation, possible brain damage, and apparent remorse
  • Whether Victim Impact Statements should be taken into account under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio
  • The appropriate non-parole period against the 20-year standard non-parole period for murder

Decision

Davies J was satisfied beyond reasonable doubt that the killing was not planned, but rather resulted from a sudden loss of control. Notwithstanding the absence of premeditation, the attack was prolonged and brutal, involving both a weapon and manual asphyxiation, and the deceased suffered for a significant period. The judge found those features to be serious aggravating factors.

On the question of mitigation, the court accepted several factors in the offender's favour: prior good character, his age, his social isolation and limited English, the neuropsychological evidence suggesting brain damage sustained as a prisoner of war, and the likelihood of some genuine remorse. The attempted suicide after the killing was treated as consistent with remorse, though the court approached that conclusion with appropriate caution.

Regarding Victim Impact Statements from the deceased's three daughters, the court accepted the Crown's submission that they should be taken into account under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Davies J noted the difficulty in identifying precisely what practical difference the amended provision makes, but concluded that the impact on the daughters formed part of the harm done to the community generally, and was in any event absorbed into the instinctive synthesis of sentencing.

The court found special circumstances existed, principally because of the offender's age, social isolation, limited English, and the challenges he would face upon any eventual release after a lengthy period of incarceration. This justified a departure from the standard one-third additional term, resulting in a non-parole period of 16 years and an additional term of 7 years, rather than the standard ratio.

Orders Made

  • Non-parole period of 16 years commencing 20 September 2012 and expiring 19 September 2028
  • Additional term of 7 years expiring 19 September 2035
  • The offence to be recorded on the offender's criminal record as a domestic violence offence pursuant to s 12(2) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW)

Key Takeaways

  • A finding that a domestic murder was unplanned and resulted from sudden loss of control does not preclude a heavy sentence where the attack itself was sustained, brutal, and involved multiple modes of violence.
  • Victim Impact Statements may be taken into account at sentencing under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), though the court acknowledged ongoing uncertainty about the practical effect of that amended provision; the harm to family members is in any event part of the harm to the community generally, absorbed into the instinctive synthesis.
  • Special circumstances justifying a departure from the standard non-parole period ratio can arise from a combination of the offender's age, social isolation, cognitive impairment, and the likely difficulties of reintegration after a lengthy sentence.
  • Under s 12(2) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW), a court sentencing for a domestic homicide must record the offence as a domestic violence offence on the offender's criminal record.
  • Mitigating factors such as prior good character, war-related brain injury, limited English proficiency, and apparent remorse (including an attempted suicide after the killing) can collectively carry weight in the sentencing exercise even for the most serious category of offence.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal) Violence Act 2007 (NSW), s 12(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(4)

Cases
- Asplund v R [2014] NSWCCA 237
- Goebel-McGregor v R [2006] NSWCCA 390
- Hiron v R [2007] NSWCCA 336
- R v Hines (No 3) [2014] NSWSC 1273
- R v Huang [2000] NSWCCA 238; (2000) 113 A Crim R 386
- R v Pluis [2015] NSWSC 320
- Thi Lan Nguyen v R [2009] NSWCCA 181