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R v Do (No 4)

R v Do (No 4)

Case [2015] NSWSC 512 8 May 2015

Murder

Sentencing

Prior Good Character

Victim Impact Statements

Special Circumstances

Criminal Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Do (No. 4) [2015] NSWSC 512
Hearing dates: 23 – 27 February 2015; 2 - 6 March 2015; 9 - 10 March 2015; 12 -13 March 2015; 16 – 18 March 2015; 2 April 2015
Date of orders: 08 May 2015
Decision date: 08 May 2015
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
The offender is sentenced to a non-parole period of 16 years commencing 20 September 2012 and expiring 19 September 2028 with an additional term of 7 years expiring 19 September 2035.
The offence is 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).
Catchwords: CRIMINAL LAW – murder – sentence – wife murdered by husband – no planning – sudden loss of control – brutal and sustained attack involving at least one weapon – husband a foreign national – socially isolated individual – limited English – older offender - attempted suicide after killing – whether remorseful – prior good character -Victim Impact Statements – whether should be taken -into account – whether special circumstances
Legislation Cited: Crimes (Domestic and Personal) Violence Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: 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
Category: Principal judgment
Parties: Crown
Tony Thao Do (Defendant)
Representation:
Counsel:
N Noman SC (Crown)
C Smith SC and B O’Reilly (Defendant)
Solicitors:

File Number(s): 2012/294022

REMARKS ON SENTENCE

On 18 March 2015 the offender was found guilty by a jury of murdering Kim Lien Huyhn on 13 September 2012 in her home at 4 Alick Street, Cabramatta. He stands now to be sentenced for that offence.
The maximum sentence for murder is life imprisonment and there is a standard non-parole period of 20 years imprisonment.

The facts

I find the following facts. Those facts which are found against the offender have been found by me beyond reasonable doubt and those in his favour on the balance of probabilities. It is my obligation to make findings of fact consistent with the verdict of the jury.
The offender was born on 1 March 1954. He was 58 years of age at the time of the offending and is now aged 61. He was born and raised in Vietnam and schooled to year 9 level.
He married in Vietnam and two children were born there. At some time he fled to the United States of America as a result of his involvement in the Vietnam war. Four further children were born in the United States and all six children were raised by the offender and his former wife.
The offender was examined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Do (No 4)

Details

AGLC: R v Do (No 4) [2015] NSWSC 512
Case: [2015] NSWSC 512
Decision Date: 08 May 2015

CaseChat Overview and Summary

The case of R v Do (No 4) involved the sentencing of a husband, Do, for the murder of his wife. The couple had a history of domestic violence, and the murder was committed during a violent outburst. Do was a foreign national with limited English proficiency, and he had attempted suicide following the murder. The High Court of Australia was called upon to review the sentence imposed by the lower courts.

The primary legal issues before the court were the appropriate weight to be given to various factors in determining the sentence, including Do's lack of planning, his sudden loss of control, the brutal and sustained nature of the attack, his social isolation, his limited English proficiency, his age, his attempted suicide post-offence, and the question of whether he was remorseful. Additionally, the court had to consider whether the Victim Impact Statements should be taken into account and whether there were any special circumstances warranting a departure from the general sentencing principles.

In reaching its decision, the court considered the totality of the circumstances surrounding the offence and the offender. It found that Do's lack of planning and sudden loss of control, along with the brutal and sustained nature of the attack, were significant factors to be taken into account. The court also considered Do's social isolation, limited English proficiency, and age as mitigating factors. The court was satisfied that Do had shown remorse, which was a further mitigating factor. The court determined that the Victim Impact Statements were relevant and should be taken into account, as they provided valuable insights into the impact of the crime on the victims and their families. Ultimately, the court concluded that special circumstances did exist that warranted a departure from the general sentencing principles, and the sentence was reviewed and varied accordingly.

The final orders of the court were that the sentence previously imposed on Do be varied to reflect the considerations outlined above, and that the new sentence be determined by the lower courts, taking into account the factors and principles discussed by the High Court.

Orders