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District Court 19 May 2017

Regina v Tran Hoai Cao

[2017] NSWDC 268

DrugsFraud & dishonesty
CRIMINAL LAW PLEA OF GUILTY CONVICTION SENTENCE MITIGATING FACTORS AGGRAVATING FACTORS FINE

Citation: Regina v Tran Hoai Cao [2017] NSWDC 268
Court: District Court of New South Wales
Date: 19 May 2017
Judge: Judge AC Scotting

Background

The offender pleaded guilty in the Local Court to a range of serious charges spanning drug supply and identity fraud, and was committed to the District Court for sentencing. The drug-related conduct, which occurred between October and December 2015, involved the offender supplying methylamphetamine (ice) and MDMA (ecstasy) to multiple individuals on multiple occasions, constituting ongoing supply under the Drug Misuse and Trafficking Act 1985. A search warrant executed at his Homebush West residence uncovered 7.6 grams of methylamphetamine, cash of $12,800, cannabis, and additional MDMA.

The identity fraud charges arose from a separate investigation by the Identity Security Strike Team, which had been monitoring a criminal network from July 2015. The offender participated in that network by producing false New South Wales driver's licences and Medicare cards, which were then used by co-offenders to obtain fraudulent personal loans from the National Australia Bank totalling approximately $94,000. Four such transactions were proven, with additional counts taken into account on a Form 1 (a procedure by which further related offences are considered in sentencing without separate conviction).

Additional charges included dealing with property suspected of being proceeds of crime and participating in a criminal group. The offender asked the court to take several matters into account on Form 1 documents when sentencing on the principal charges.

  • Whether the offending warranted a term of full-time imprisonment, or whether an alternative such as an Intensive Corrections Order was appropriate
  • What discount should apply to the sentence in light of the offender's guilty plea
  • Whether the offender's bail conditions amounted to quasi-custody warranting a significant reduction in sentence
  • How the principles of totality and parity should apply when imposing an aggregate sentence across multiple distinct offences
  • Whether special circumstances existed to justify a different ratio between the non-parole period and the head sentence

Decision

Judge Scotting found that no penalty other than full-time imprisonment was appropriate, having considered all available alternatives under section 5 of the Crimes (Sentencing Procedure) Act 1999. The court concluded that the head sentence, when partially accumulated to reflect the different categories of criminality, would exceed two years, which placed an Intensive Corrections Order outside the available options.

A 25% discount was applied to the sentence to reflect the utilitarian value of the guilty plea and as an indicator of remorse, consistent with the principles in R v Thomson & Houlton and R v Borkowski. The court rejected the submission that the offender's bail curfew conditions amounted to quasi-custody warranting significant mitigation. The offender had been able to work, live at home, and access rehabilitation, and could have applied to vary the curfew if work attendance was affected.

The court found special circumstances justifying a departure from the standard ratio between the non-parole period and the overall sentence. This was the offender's first time in custody, and a longer period of supervised parole was considered necessary to support drug and alcohol rehabilitation and, if warranted, psychological treatment.

An aggregate sentence was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999, incorporating the full range of charges and Form 1 matters.

Orders Made

  • The offender was convicted of all charges.
  • An aggregate sentence of imprisonment was imposed:
  • Non-parole period: 2 years and 9 months, commencing 19 May 2017 and expiring 18 February 2020
  • Head sentence: 4 years and 9 months, expiring 18 February 2022
  • The offender becomes eligible for release on parole on 18 February 2020.

Key Takeaways

  • The District Court confirmed that where the appropriate head sentence exceeds two years, an Intensive Corrections Order is not available as an alternative to full-time imprisonment.
  • A 25% discount for a guilty plea was applied in accordance with the established approach in R v Thomson & Houlton and R v Borkowski, reflecting both utilitarian value and an indication of remorse.
  • Bail curfew conditions do not automatically constitute quasi-custody. The court assessed the actual impact on the offender's circumstances and found the restrictions did not significantly curtail his ability to work or participate in rehabilitation.
  • An aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 can properly encompass multiple distinct categories of serious offending, provided the principles of totality and parity are observed.
  • Special circumstances were established where a first-time custodial offender required an extended parole period to access drug and alcohol rehabilitation and psychological support, justifying a non-parole period proportionally shorter than the standard.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A
- Crimes Act 1900 (NSW), ss 93T(4A), 192J, 193(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 5, 12, 21A(2)(n), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22, 53A

Cases:
- Fayd'herbe v R [2007] NSWCCA 20
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1