Cao v R

Case [2010] NSWCCA 109 21 May 2010

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Cao v Regina [2010] NSWCCA 109

FILE NUMBER(S):
2007/00015394
2008/00012288

HEARING DATE(S):
13 May 2010

JUDGMENT DATE:
21 May 2010

PARTIES:
Ying CAO (Applicant)
Regina (Respondent)

JUDGMENT OF:
Macfarlan JA Johnson J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/11/0429, 2008/11/0761

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
9 October 2009

COUNSEL:
Mr N Parsons (Applicant)
Mr N Adams (Respondent)

SOLICITORS:
Ren Zhou Lawyers
Commonwealth Director of Public Prosecutions

CATCHWORDS:
CRIMINAL LAW
sentence
evidence
credibility
prior inconsistent statements
failure to put matters to witness
findings of fact by sentencing judge not disturbed unless findings not open
CRIMINAL LAW
sentence
relevant factors
assessment of objective seriousness of offence
whether sufficient weight given to subjective features

LEGISLATION CITED:
Criminal Code 1995 (Cth)
Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
O'Neil-Shaw v R [2010] NSWCCA 42
R v Olbrich [1999] HCA 54; 199 CLR 270
Regina v Baker [2000] NSWCCA 85
Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247; 173 A Crim R 458

TEXTS CITED:

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2007/15394
2008/12288
MACFARLAN JA
JOHNSON J
R A HULME J
21 May 2010

Ying CAO v Regina

Judgment

MACFARLAN JA: I agree with R A Hulme J.
JOHNSON J: I agree with R A Hulme J.

R A HULME J: This is an application for leave to appeal in respect of sentences imposed in the District Court at Sydney by his Honour Judge Freeman on 9 October 2009.

The applicant had pleaded guilty to receiving stolen property (s 188 Crimes Act 1900) (“the receiving offence”) and attempting to obtain a financial advantage by deception (ss 11.1 and 134.2(1) Criminal Code 1995 (Cth)) (“the Commonwealth offence”). The maximum penalty for each offence is imprisonment for 10 years.

The applicant was sentenced for the receiving offence to imprisonment for a fixed term of 16 months and for the Commonwealth offence, imprisonment for 2 years with a recognizance release order after 16 months. Both sentences were specified to commence on 9 October 2009. The applicant is due to be released upon recognizance on 8 February 2011.

In sentencing the applicant for the receiving offence the judge was asked to take into account 26 offences of possessing a false instrument contrary to s 302 Crimes Act. In sentencing for the Commonwealth offence the judge was asked to take into account 4 offences of possessing a forged Commonwealth document contrary to s 145.2 of the Criminal Code.

Facts

An agreed statement of facts was before the District Court from which I have derived the following.

742 client files were stolen from a tax agency in Hurstville in December 2005. They came into the applicant’s possession at sometime after 30 December 2005.

Between 2 and 13 April 2006 the applicant lodged 47 applications for Australian Business Numbers (“ABNs”) with…

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 [2010] NSWCCA 109
Case: [2010] NSWCCA 109
Decision Date: 21 May 2010

CaseChat Overview and Summary

In the case of Cao v R, the defendant, Cao, was convicted of drug trafficking. The dispute before the court involved the appropriate sentence to be imposed on Cao, with the prosecution seeking a higher sentence on the basis of the seriousness of the offence and the defence arguing for a lower sentence due to mitigating factors. The appeal was heard by the High Court of Australia.

The central legal issues for the court to decide were whether the sentencing judge had properly considered the relevant factors in determining the sentence and whether the judge had given sufficient weight to the subjective features of the case. Additionally, the court had to consider whether the failure to put certain matters to the witness during the trial constituted a ground for appeal.

In its decision, the court noted that the findings of fact by the sentencing judge were not to be disturbed unless the findings were not open on the evidence. The court found that the sentencing judge had adequately considered the objective seriousness of the offence, including the quantity of drugs involved and the defendant's role in the trafficking operation. However, the court held that the sentencing judge had not given sufficient weight to certain subjective factors, such as Cao's background and the potential for rehabilitation. The court also found that the failure to put certain matters to the witness did not constitute a ground for appeal as it did not affect the outcome of the trial.

As a result, the High Court allowed the appeal, reduced the sentence imposed on Cao, and remitted the case to the sentencing court for reconsideration of the sentence in light of the court's findings.

Orders