Regina v Tran Hoai Cao - [2017] NSWDC 268

District Court

New South Wales

Medium Neutral Citation: Regina v Tran Hoai Cao [2017] NSWDC 268
Hearing dates: 12 May 2017
Date of orders: 19 May 2017
Decision date: 19 May 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 For each offence the offender is convicted.
2 This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999.
3 I impose a term of imprisonment consisting of a non-parole period of 2 years and 9 months to date from 19 May 2017 and expire on 18 February 2020 and a head sentence of 4 years and 9 months expiring on 18 February 2022.

Catchwords: CRIMINAL LAW – plea of guilty – conviction
SENTENCE - mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment
DRUGS – illicit – possession – prohibited – use - marijuana - Methylamphetamine - of 3,4 methylenedioxymethylamphetamine (MDMA)
OTHER – ecstasy – ice
Legislation Cited: Drugs Misuse and Trafficking Act 1985 ss.10(1), 25(1), 25A
Crimes Act 1900 ss.93T(4A), 192J, 193(1)
Crimes (Sentencing Procedure) Act 1999 ss.3, 5, 12, 21A(20(n), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22, 53A
Cases Cited: Fayd’herbe v R [2007] NSWCCA 20
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Category: Sentence
Parties: Regina (Crown)
Tran Haoi Cao (Offender)
Representation:
Counsel:
Ms J Ghabrial (Offender)
Solicitors:
C Hyland, Solicitor for Public Prosecutions (Crown)
Oxford Lawyers (Offender)

File Number(s): 2015/00107508; 2015/00370496
Publication restriction: None

sentence

Tran Hoai Cao (the offender) appears for sentence after he pleaded guilty in the Local Court to the following charges:

H61122964

Sequence 1 Supply prohibited drug on an ongoing basis contrary to section 25A Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is 20 years imprisonment and/or a fine of $385,000.

Sequence 9 Supply prohibited drug contrary to section 25(1) Drug Misuse and Trafficking Act 1985 (7.6g methylamphetamine) The maximum penalty for the offence is 15 years imprisonment and/or a fine of $220,000.

The offender also asks the Court to take into consideration when dealing with Sequence 1 the following charges on a Form 1:

Sequence 2 Deal with property suspected of being proceeds of crime contrary to section 193(1) Crimes Act 1900

Sequence 3 Possess prohibited drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985. (8.4 g cannabis leaf)

Sequence 4 Possess prohibited drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985. (0.81 g MDMA)

H60233062

Sequence 1 Dealing with identification information contrary to section 192J Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment.

Sequence 5 Dealing with identification information contrary to section 192J Crimes Act 1900.

Sequence 7 Dealing with identification information contrary to section 192J Crimes…

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.

Keep reading for free

Create a free CaseChat account to read Regina v Tran Hoai Cao and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWDC 268
Decision Date: 19 May 2017

CaseChat Overview and Summary

Tran Hoai Cao was convicted on drug-related charges and the case was brought before the court for sentencing. The court had to consider the appropriate penalty, taking into account various factors such as the nature of the offences, the offender's capacity to pay, the circumstances of the case, the objective seriousness of the offences, and the principles of specific and general deterrence. The court also had to ensure that the sentence was in line with community values and that the totality principle was adhered to.

The court considered the offender's plea of guilty as a mitigating factor, as well as their remorse and contrition. However, the court also took into account the aggravating factors, such as the offender's previous criminal history and the quantity of drugs involved. The court noted that the offender had been involved in the possession, use and distribution of illicit drugs, including marijuana, methylamphetamine and ecstasy. The court also considered the extra curial punishment the offender had already suffered.

After weighing all the factors, the court determined that an aggregate sentence was appropriate in this case. The court imposed a term of imprisonment consisting of a non-parole period of 2 years and 9 months to date from 19 May 2017 and expire on 18 February 2020 and a head sentence of 4 years and 9 months expiring on 18 February 2022. The court considered this sentence to be proportionate to the seriousness of the offences and the offender's capacity to pay.

Orders

Orders of the court

1 For each offence the offender is convicted.

2 This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999.

3 I impose a term of imprisonment consisting of a non-parole period of 2 years and 9 months to date from 19 May 2017 and expire on 18 February 2020 and a head sentence of 4 years and 9 months expiring on 18 February 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Regina v Tran Hoai Cao [2017] NSWDC 268
Hearing dates:	12 May 2017
Date of orders:	19 May 2017
Decision date:	19 May 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 For each offence the offender is convicted. 2 This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999. 3 I impose a term of imprisonment consisting of a non-parole period of 2 years and 9 months to date from 19 May 2017 and expire on 18 February 2020 and a head sentence of 4 years and 9 months expiring on 18 February 2022.
Catchwords:	CRIMINAL LAW – plea of guilty – conviction SENTENCE - mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment DRUGS – illicit – possession – prohibited – use - marijuana - Methylamphetamine - of 3,4 methylenedioxymethylamphetamine (MDMA) OTHER – ecstasy – ice
Legislation Cited:	Drugs Misuse and Trafficking Act 1985 ss.10(1), 25(1), 25A Crimes Act 1900 ss.93T(4A), 192J, 193(1) Crimes (Sentencing Procedure) Act 1999 ss.3, 5, 12, 21A(20(n), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22, 53A
Cases Cited:	Fayd’herbe v R [2007] NSWCCA 20 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1
Category:	Sentence
Parties:	Regina (Crown) Tran Haoi Cao (Offender)
Representation:	Counsel: Ms J Ghabrial (Offender) Solicitors: C Hyland, Solicitor for Public Prosecutions (Crown) Oxford Lawyers (Offender)
File Number(s):	2015/00107508; 2015/00370496
Publication restriction:	None