Regina v Cao - [2003] NSWSC 715

CITATION: Regina v Cao [2003] NSWSC 715

HEARING DATE(S): 09/07/03 - 11/07/03
14/07/03 - 15/07/03
17/07/03 - 18/07/03

JUDGMENT DATE:
8 August 2003

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: Sentence of 15 years with non parole period of 10 years 6 months

CATCHWORDS: Criminal Practice & Procedure - Sentence - Murder - Spontaneous act in a domestic setting

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Olbrich (1999) 199 CLR 270
R v Previtera (1997) 94 A Crim R 76
R v Elphick [2002] NSWCCA 273

PARTIES :
Regina
Van Teo Cao

FILE NUMBER(S): SC 70055/02

COUNSEL: G B Lerve (Crown)
A M Martin (Accused)

SOLICITORS: S E O'Connor (Crown)
N Velcic & Associates (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

DAVID KIRBY J

Friday 8 August 2003

70055/02 - REGINA v Van Teo CAO

JUDGMENT ON SENTENCE

1 KIRBY J: On 18 July 2003 Van Teo Cao was found guilty of having murdered Karolina Zizius on 22 May 2001. It remains for me to pass sentence. To do so I must first determine the facts relevant to the sentencing discretion in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Cao, it is enough that they should be proved on the balance of probabilities (R v Olbrich (1999) 199 CLR 270).

2 In May 2001 Mr Cao was 45 years old. The deceased, Karolina Zizius, was 25 years. She was a heroin addict. They had known each other for a number of years. According to the deceased's mother, they had been living together off and on for approximately three years.

3 At about 8.30 am on Sunday 13 May 2001, Mr Cao was telephoned by his friend, Mr Nguyen. Mr Nguyen suggested that they should go to the Flemington Markets. Mr Cao agreed. At approximately 10.00 am, Mr Nguyen and his wife came to Mr Cao's flat in Villawood Road, Villawood. They remained there for about two hours before setting out for the markets. During that time Mrs Nguyen cooked a meal, which they ate. Karolina Zizius remained in the bedroom. She did not come out. Mr Cao told his friends that she was asleep. He later told the police that she had taken heroin at approximately 11.00 am.

4 Mr Cao had two children, Jasmine and Krystal. They were then aged about five years and three years. The children also went to the markets. A number of purchases were made, including a bag of rice by Mr Cao.

5 The group left the markets, arriving at Villawood shortly after 2.00 pm. Mrs Nguyen and Jasmine were dropped at the local shopping centre, which was close by. Mr Cao and Mr Nguyen therefore arrived at the flat a few minutes ahead of Mrs Nguyen and Jasmine, who completed the journey on foot. Mr and Mrs Abbott…

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 Regina v Cao

Details

AGLC: Regina v Cao [2003] NSWSC 715
Case: [2003] NSWSC 715
Decision Date: 8 August 2003

CaseChat Overview and Summary

In Regina v Cao, the defendant was convicted of murder for killing his partner in a domestic dispute. The court was tasked with determining an appropriate sentence for the defendant, taking into account the nature of the crime and the circumstances surrounding it. The case was heard in the Supreme Court of New South Wales. The defendant, Cao, was found guilty of murdering his partner during a heated argument, which the court accepted as a spontaneous act in a domestic setting.

The legal issues the court had to address were the appropriate weight to give to the mitigating factors, such as the defendant's background and the nature of the killing, and the need to impose a sentence that would reflect the seriousness of the offence and serve the purposes of deterrence and protection of society. The court considered whether the circumstances warranted a lesser sentence due to the domestic nature of the incident, and whether the defendant's background and remorse could be considered in mitigation.

The court determined that while the domestic setting and the spontaneity of the act were significant factors, they did not diminish the gravity of the offence. The court emphasised the need to protect society and deter similar acts of violence. After weighing the aggravating and mitigating factors, the court sentenced the defendant to a term of imprisonment with a non-parole period, reflecting the serious nature of the crime while also considering the circumstances of the case.

The final orders of the court included the defendant's imprisonment for a specified term, with a non-parole period that was determined to be appropriate based on the court's assessment of the case. The court's decision highlighted the balance required in sentencing for domestic violence cases, ensuring that justice is served while also considering the specific context of the crime.

Orders