Legal Research
Cases
Cao v The Queen

Cao v The Queen

Case [2018] VSCA 98 9 April 2018

Sentencing

Appeal

Criminal Liability

Aggravated & Exemplary Damages

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0138

TUAN ANH CAO	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, TATE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 April 2018
DATE OF JUDGMENT:	9 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 98
JUDGMENT APPEALED FROM:	DPP v Cao (Unreported, County Court of Victoria, Judge Gucciardo, 23 December 2016)

---

CRIMINAL LAW – Sentence – Appeal – Three charges of rape and charges of aggravated burglary, threat to kill, sexual assault and theft – Sentenced to 10 years’ imprisonment with non-parole period of 6 years and 6 months – Whether sentence manifestly excessive – Whether orders for cumulation excessive – Whether error in orders for cumulation in respect of two charges – Whether family support given too little weight – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A L Hands	Luat Tran & Associates
For the Crown	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P:

I will invite Niall JA to deliver the first judgment.

NIALL JA:

On 19 October 2017, a judge of appeal refused the applicant’s application for leave to appeal against sentence.

The sentence had been imposed by a judge of the County Court on the applicant’s plea of guilty to one charge of aggravated burglary, one charge of threat to kill, one charge of sexual assault, three charges of rape, and one charge of theft. The applicant was sentenced as follows:

Charge on indictment Offence Maximum penalty Sentence Cumulation

1 Aggravated burglary
[Crimes Act 1958 s 77(1)] 25 years’ imprisonment 5 years’ imprisonment 9 months

2 Threat to kill [Crimes Act 1958 s 20] 10 years’ imprisonment 1 year’s imprisonment 2 months

3 Sexual assault [Crimes Act 1958 s 40(1)] 10 years’ imprisonment 2 years’ imprisonment 1 month

4 Rape
[Crimes Act 1958 s 38(1)] 25 years’ imprisonment 8 years’ imprisonment 6 months

5 Rape
[Crimes Act 1958 s 38(1)] 25 years’ imprisonment 8 years’ imprisonment 6 months

6 Rape
[Crimes Act 1958 s 38(1)] 25 years’ imprisonment 8 years’ imprisonment Base

7 Theft
[Crimes Act 1958 s 74(1)] 10 years’ imprisonment 3 months’ imprisonment Nil

Total effective sentence: 10 years’ imprisonment

Non-parole period: 6 years and 6 months’ imprisonment

Pre-sentence detention declaration 225 days

Section 6AAA Statement 12 years’ imprisonment with a non-parole period of 8 years

Other relevant orders
Reporting for 15 years pursuant to s 34 of the Sex Offenders Registration Act 2004

Sentenced as a serious sexual offender on charges 5 and 6 pursuant to s 6F of the Sentencing Act 1991.

The applicant has applied under s 315(2) of the Criminal Procedure Act 2009 to have his application determined by a bench of two or more judges of appeal.

In Ayol v The Queen, Weinberg JA said:

I would also note that although this renewed application for leave to appeal is by way of re-hearing, the carefully expressed…

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 The Queen

Details

AGLC: Tuan Anh Cao v The Queen [2018] VSCA 98
Case: [2018] VSCA 98
Decision Date: 9 April 2018

CaseChat Overview and Summary

The appellant was convicted of three charges of rape, as well as aggravated burglary, threat to kill, sexual assault, and theft. He was sentenced to a total of 10 years’ imprisonment with a non-parole period of 6 years and 6 months. The appellant appealed against his sentence, contending that it was manifestly excessive and that the orders for cumulation were also excessive. He further argued that there was an error in the orders for cumulation in respect of two charges and that insufficient weight was given to the support he received from his family. The appeal against sentence was brought to the Court of Appeal.

The legal issues before the court were whether the sentence was manifestly excessive, whether the orders for cumulation were excessive, whether there was an error in the orders for cumulation, and whether insufficient weight was given to the family support the appellant received. The court considered the principles of sentencing, the nature and circumstances of the offences, and the appellant's background and prospects for rehabilitation.

The court found that the sentence was not manifestly excessive and that the orders for cumulation were appropriate. The court also found that there was no error in the orders for cumulation and that sufficient weight was given to the family support the appellant received. The court held that the appeal against sentence should be dismissed.

The court refused the appellant leave to appeal against his sentence to the High Court. The appellant's sentence of 10 years’ imprisonment with a non-parole period of 6 years and 6 months was upheld.

Orders