New South Wales Supreme Court CITATION : Regina v Cao [2003] NSWSC 715 09/07/03 - 11/07/03 HEARING DATE(S) : 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 R v Olbrich (1999) 199 CLR 270 CASES CITED : 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). The Incident 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 occupied the flat below. It was Mothers' Day and they were sitting outside on the steps. They saw Mr Cao and Mr Nguyen return. 6 Having entered his flat, Mr Cao began washing the dishes from the morning meal. Mrs Nguyen then arrived and volunteered to complete that task. To this point it was a very ordinary domestic day. Mr Cao left the kitchen. He went to the bedroom which he shared with Karolina. 7 Karolina was awake. There was an argument. The jury accepted, and I therefore find, that Mr Cao took hold of a slim metal rod, which had been part of a television aerial, which he then used as a weapon to strike the deceased. The blow was delivered above the left ear with considerable force, sufficient to penetrate the skull. It entered the brain to a depth of about 3 cms. Karolina Zizius immediately lost consciousness. 8 Thereafter, paradoxically, Mr Cao's actions manifested an extreme concern for the welfare of Karolina. Because his English was limited, he rushed downstairs and presented his mobile phone to Mrs Abbott. He asked her to telephone the emergency number to summon an ambulance. The ambulance, in fact, took some time. Mr Cao ran up and down the stairs, suggesting that the authorities should be rung again. 9 Once the ambulance personnel arrived, Mr Cao was in a state of extreme agitation. He was asked by the ambulance officers, and by others, what had happened. He suggested that Karolina had thrown the aerial at him in the course of their argument. It had struck the door. It had then rebounded and somehow penetrated her skull. 10 It was said by the Crown that this was a false explanation and, indeed, was a deliberate lie told in order to cover up his own guilt. The jury clearly accepted that this was so. 11 What is known about the argument between the deceased and Mr Cao? Mr Cao did not give evidence at the trial. However, he provided the police with a statement. He also participated in an electronic interview. He said, and I accept, that Karolina was upset with him for not having woken her up so that she could go to the markets. She also asked for more heroin. However, there was none. 12 I think it probable that, in the course of the argument, Karolina Zizius broke the aerial, separating the two rods from the plastic base. I also think it probable that she threw part of the aerial at Mr Cao. Mr Cao gave the impression, and I accept, that he retreated from the room, closing the door behind him. There was an indentation consistent with the door having been struck by part of the aerial. 13 Neither Mr Nguyen nor his wife heard raised voices, although they were in adjacent rooms. The Abbotts, likewise, gave no evidence of having heard raised voices. Both Mr and Mrs Abbott said that the interval between Mr Cao's arrival from the markets and his rushing downstairs, asking Mrs Abbott to telephone the ambulance, was about ten minutes. Indeed, it may have been as little as five minutes. Part of that time was spent by Mr Cao in washing up. The argument, therefore, must have been short lived. It follows that the act of Mr Cao in striking Karolina was impulsive, presumably the consequence of a flash of anger. It is not known what caused that anger. The only evidence of anger was that of Karolina towards Mr Cao. However, common sense would suggest that something must have been said or done which provoked in fact (if not in law) Mr Cao. 14 Karolina Zizius was taken to the Liverpool Hospital. She underwent surgery. At first she appeared to make progress. However, she relapsed and died on 22 May 2002. Mr Cao's Background 15 Mr Cao gave evidence on sentence. He was born on 15 January 1956 in Vietnam. He described his parents as "fisher folk". He came to Australia in 1979. He worked in a brick factory in Cooma. He was later employed by various businesses in the Cooma area. In 1980 he was working for a fish cannery at Eden when he suffered a serious industrial accident. He was left with a prominent scar on his face and, one gathers, damage to his eye. Thereafter he performed various jobs in restaurants and elsewhere. 16 Mr Cao, as mentioned, has two young children. They are now aged approximately seven years and five years. The mother of the children died in 1999. Mr Cao then took over the care of the children. Upon his arrest, the children were taken into the custody of "welfare". They have remained with welfare ever since, even though Mr Cao was granted bail within a relatively short time. Mr Cao speaks to his children from time to time by telephone. They are apparently in Adelaide where his former wife's mother lives. One gathers that the childrens' grandmother has some contact with them. 17 Mr Cao described the circumstances in which he met Karolina. He was at the office of the Department of Social Security. So was she. She had nowhere to live. She had stolen a machine from her sister whilst living at her mother's home. She had done so in order to pay for the drugs she required. The machine at the time had not been paid off. She was thereafter banished from the home. Mr Cao gave the following evidence on sentence: "... I helped her out by giving her a place to stay and giving her some pocket money." 18 Karolina, when she was able, assisted with the house and the children. Ultimately, she and Mr Cao formed a relationship. Mr Cao took her back to her mother in the hope that she would again be accepted by her family. In this, one gathers, he was successful. Karolina's mother trusted him. She gave him the key to the house. 19 Mr Cao made various attempts to assist Karolina to give up heroin. Karolina entered a rehabilitation programme using the drug Naltrexone. The programme cost $3,000. That cost was met by Mr Cao. The rehabilitation programme required family support. Mr Cao provided that support, attending the centre each day. Unfortunately Karolina relapsed. She did not complete the programme. 20 Mr Cao then took Karolina to Vietnam in January 2001. They remained in Vietnam for approximately five weeks. In his words, she was kept busy, to distract her from her craving for heroin. She was also taught meditation techniques to overcome that craving. Again, however, she unfortunately relapsed. 21 After the jury verdict, Mr Cao asked his counsel to look after his wallet. Within his wallet was a photo of Karolina. I accept that Mr Cao loved Karolina. 22 Mr Cao has twice previously come before the Court in respect of criminal charges. The first occasion was in 1989. He was charged with offensive language. No conviction was recorded. The second occasion was in 1999. Mr Cao was charged with being in possession of a prohibited drug. He was fined the sum of $100. There is no evidence as to the nature of the drug. The Crown accepted that, having regard to the outcome, the drug was probably cannabis. The Crown also accepted that the matter should be approached upon the basis that Mr Cao has, for the purposes of sentencing, no relevant record. 23 Having regard to his age and history, I regard the prospects of Mr Cao's rehabilitation as very good. 24 I believe that it is appropriate to make a finding of special circumstances and to make a small adjustment to the sentence which would otherwise be appropriate. Mr Cao has had a limited education. As mentioned, he has limited English. His family is in Vietnam. He has been separated from his young children, who have been transferred interstate. His incarceration is likely to be the more harsh by reason of his isolation. Sentence 25 I have been provided with statements made by Karolina Zizius' mother and her sisters. Although the deceased had her share of difficulties, by reason of her addiction to heroin, she was dearly loved by her mother and by her sisters. She is sorely missed. I must, of course, deal with this material in a manner consistent with R v Previtera (1997) 94 A Crim R 76 at 85. 26 Murder has always been regarded as the most serious offence in the criminal calendar. Absent extraordinary circumstances, it calls for a substantial sentence by way of imprisonment to serve the interests of punishment, including general deterrence. I accept that the incident occurred in the context of what may be described as a "domestic relationship" (R v Elphick [2002] NSWCCA 273, paras 16, 17 and 27). I further accept, as a generality, that Mr Cao loved the deceased. There was no evidence of abuse in their relationship. I accept as probable that unwittingly something said or done by the deceased provoked Mr Cao (cf s21A(3)(c) Crimes (Sentencing Procedure) Act 1999). Nonetheless, although spontaneous, the act of striking the deceased with a metal rod was one of significant brutality. 27 Mr Cao was in custody for ten days after his arrest and before being given bail. He has been in custody since the jury verdict (18 July 2003). To give Mr Cao the benefit of the ten days he served before he was convicted, I believe it appropriate to date the sentence from 8 July 2003. 28 Van Teo Cao, I sentence you to imprisonment for 15 years commencing on 8 July 2003, and expiring on 7 July 2018. I fix a non parole period of 10 years and 6 months. You will therefore be eligible for release on parole on 8 January 2014. ********** Last Modified: 08/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.