Tuan Anh Cao v The Queen - [2017] VSCA 298

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0138

TUAN ANH CAO	Applicant
v
THE QUEEN	Respondent

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2017
DATE OF JUDGMENT:	19 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 298
JUDGMENT APPEALED FROM:	DPP v Cao (Unreported, County Court of Victoria, Judge Gucciardo, 23 December 2016)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Aggravated burglary – Threat to kill – Sexual assault – Rape – Theft – Sentence of 10 years’ imprisonment with non-parole period of 6 years and 6 months – Whether sentence manifestly excessive – Whether error in aggregating sentence – Whether judge failed to take into account principles of totality and proportionality – Whether judge considered level of family and social support in assessing rehabilitation prospects – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A L Hands	Luat Lawyers
For the Respondent	Ms G A Coghlan	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA:

The applicant, now aged 31, pleaded guilty to one charge of aggravated burglary, one charge of threat to kill, one charge of sexual assault by touching, three charges of rape and one charge of theft. On 23 December 2016, he was sentenced in the County Court 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 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’ imprisonment

Other relevant orders
Reporting for 15 years pursuant to the Sex Offenders Registration Act 2004.

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

The applicant now seeks leave to appeal his sentence.

Circumstances of the offending

At the time of the offending, the victim was 19. She was living with four housemates in Clayton. She was unknown to the applicant.

On the night of 8 April 2016, the victim was at home with her housemates. Sometime after 11:30 pm, she went to her bedroom. At about 1:00 am the next…

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.

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Details

Case: [2017] VSCA 298
Decision Date: 19 October 2017

CaseChat Overview and Summary

In the case of Tuan Anh Cao v The Queen, the defendant, Tuan Anh Cao, was convicted of aggravated burglary, threat to kill, sexual assault, rape, and theft. Cao appealed against the sentence imposed by the lower court, seeking leave to appeal on the grounds that the sentence was manifestly excessive, that there was an error in aggregating the sentence, and that the judge failed to take into account the principles of totality and proportionality and the level of family and social support in assessing his rehabilitation prospects. The High Court of Australia considered the appeal and ultimately refused leave to appeal.

The central legal issues before the Court were whether the sentence imposed was manifestly excessive, whether there was an error in the aggregation of the sentence, and whether the trial judge failed to consider the principles of totality and proportionality and the level of family and social support in assessing Cao's rehabilitation prospects. The Court needed to determine if the sentence was disproportionate to the crimes committed, if there was an error in the way the sentences for each crime were combined, and if the judge had considered all relevant factors in determining the appropriate sentence.

The Court found that the sentence of 10 years’ imprisonment with a non-parole period of 6 years and 6 months was not manifestly excessive. The Court considered that the trial judge had carefully assessed the seriousness of the crimes and the need to deter Cao and others from committing similar offences. The Court also found that there was no error in the aggregation of the sentence and that the judge had appropriately considered the principles of totality and proportionality. The Court concluded that the trial judge had adequately considered the level of family and social support in assessing Cao's rehabilitation prospects, and that these factors had been appropriately balanced against the need to protect the community.

In light of the Court's findings, it refused leave to appeal against the sentence imposed by the lower court. The Court held that the sentence was proportionate to the crimes committed, that there was no error in the aggregation of the sentence, and that the trial judge had appropriately considered all relevant factors in determining the appropriate sentence.

Orders