Cao v R - [2013] NSWCCA 321

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cao v Regina [2013] NSWCCA 321
Hearing dates: 09/12/2013
Decision date: 16 December 2013
Before: Hoeben CJ at CL at [1]
Simpson J at [38]
Hall J at [39]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - supplying a prohibited drug and possession of firearms offences - whether sentence manifesting excessive - no specific error identified but accumulation of sentences challenged - no error of principle - appeal dismissed.
Legislation Cited: Drug Misuse and Trafficking Act 1985
Cases Cited: Ayshow v R [2011] NSWCCA 240
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
House v The King [1936] HCA 40; 55 CLR 499
R v Amurao [2005] NSWCCA 32
R v Dusan Krstic [2005] NSWCCA 391
R v Najem [2008] NWCCA 32
Category: Principal judgment
Parties: Van Vinh Cao - Applicant
Regina - Respondent Crown
Representation: Counsel:
Mr G James QC/Mr W Chan - Applicant
Ms V Lydiard - Crown
Solicitors:
Oxford Lawyers - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2012/42315
Decision under appeal

Date of Decision:

2013-03-20 00:00:00

Before:

Armitage DCJ

File Number(s):

2012/42315

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 20 March 2013 the applicant pleaded guilty to the following charges:

Sequence 1 - Supply a prohibited drug on an ongoing basis (methylamphetamine) contrary to s25A of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 20 years.

Sequence 10 - Supply a prohibited drug in not less than a commercial quantity (methylamphetamine) contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 20 years with a standard non-parole period of 10 years.

Sequences 2 and 3 - Possess a prohibited weapon without permit, contrary to s7(1) of the Weapons Prohibition Act 1998 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 3 years.

Sequence 4 - Possess an unauthorised pistol, contrary to s7(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 3 years.

Sequence 5 - Possess an unauthorised prohibited firearm, contrary to s7(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 3 years.

On a Form 1 there was a charge of possession of ammunition without authority, contrary to s65(3) of the Firearms Act 1996 which carries a maximum penalty of 50 penalty units or a $5,500 fine and two charges of having goods in custody reasonably suspected of having been stolen, contrary to s527C(a) of the Crimes Act 1900, which carries a maximum penalty of 6 months imprisonment. These Form 1 matters were taken into account when sentencing for the Sequence 1 offence.

The applicant was sentenced as follows:

Sequences 2 and 3 - Imprisonment with a…

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 Cao v R

Details

AGLC: Cao v R [2013] NSWCCA 321
Case: [2013] NSWCCA 321
Decision Date: 16 December 2013

CaseChat Overview and Summary

The appellant, Cao, was convicted by the County Court of Victoria for various drug and firearms offences. He appealed against his sentence to the Court of Appeal, arguing that it was excessive. The respondent, the Crown, defended the sentence as appropriate given the circumstances of the case. The court was tasked with determining whether the sentence imposed was manifestly excessive, and if so, whether it should be altered.

The central legal issue was whether the cumulative sentences imposed for supplying a prohibited drug and possession of firearms were excessively harsh, despite no specific errors in the individual sentencing decisions. The court considered whether the total punishment was disproportionate to the crimes committed, and if the sentencing process had been fundamentally flawed. The appeal hinged on whether the aggregate sentences could be deemed excessive, as no other grounds for error were identified.

In dismissing the appeal, the Court of Appeal held that the sentences were within the acceptable range for the crimes committed. The court found no specific errors in the sentencing process, nor any fundamental errors of principle that would warrant a revision of the sentences. The court emphasised that the sentences were within the bounds of what could be reasonably expected for the offences, and that the cumulative effect did not constitute an error of principle or manifest excess. As a result, the appeal was dismissed, and the original sentences were upheld.

The court did not alter the sentences imposed by the County Court and confirmed the original penalties as appropriate. The appellant's appeal was dismissed without any modification to the sentences.

Orders