CRIMINAL LAW – Sentence – Director’s appeal – Murder – Whether sentence of 18 years with non-parole period of 13 years and 6 months manifestly inadequate – Principles to be applied in Director’s appeals – Comparable cases – Use of ‘like’ cases – Relevance of likelihood of deportation at conclusion of sentence – Sentence manifestly inadequate – Residual discretion – Onus of proof – CMB v Attorney-General (NSW) (2015) 317 ALR 308 considered – Appeal allowed – Respondent resentenced to 22 years with non-parole period of 17 years – ss 289, 290 Criminal Procedure Act 2009.
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APPEARANCES:
Counsel
Solicitors
For the Director
Mr G J C Silbert QC with Ms D I Piekusis
Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent
Mr D D Gurvich with Mr P J Smallwood
Victoria Legal Aid
REDLICH JA PRIEST JA BEACH JA:
Introduction
On 5 June 2014, following a trial in the Supreme Court, the respondent was found guilty of the murder of Selina Lin. Following a plea hearing that was conducted on 12 June and 1 and 8 August 2014, on 13 August 2014 the respondent was sentenced to a term of imprisonment of 18 years with a non-parole period of 13 years and six months.
The Director of Public Prosecutions has appealed against the respondent’s sentence on the ground that the sentence imposed and the non-parole period are manifestly inadequate in all the circumstances.[1] The Director has particularised this ground as follows:
In fixing a term of 18 years imprisonment and a non-parole period of 13 years 6 months, the sentencing Judge —
(a)failed to impose a sentence that properly reflects a grave example of the most serious offence known to the law;
(b)failed to sufficiently punish the offender to an extent which is just in all the circumstances;
(c)failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;
(d) failed to give sufficient weight to the principle of general deterrence;
(e)failed to have sufficient regard to the maximum penalty prescribed for the offence;
(f)failed to have sufficient regard to the impact of the offence upon the family of the deceased victim;
(g)failed to have sufficient regard to aggravating features of the offending, and in particular —
·The two prior incidents of violence committed against the deceased;
· The steps taken by the Respondent to conceal the deceased’s body;
· The absence of remorse by the Respondent
(h)gave to much weight to mitigating factors concerning the offender, in particular —
·her absence of prior convictions;
·her unlikelihood of reoffending;
·her previous good…
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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AGLC
DPP v Zhuang [2015] VSCA 96
Case
[2015] VSCA 96
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions (DPP) versus Zhuang arose following Zhuang's conviction for murder, leading to the Director's appeal against the sentence imposed by the lower court. The appellant argued that the sentence of 18 years imprisonment with a non-parole period of 13 years and 6 months was manifestly inadequate. Zhuang was convicted of murdering his wife, resulting in significant public interest and concern over the severity of the sentence. The Court of Appeal was tasked with determining whether the original sentence was manifestly inadequate and if it warranted an increase in the penalty.
The primary legal issues before the court involved the principles governing appeals by the Director against a sentence imposed by a lower court, particularly focusing on the concept of manifest inadequacy. The court had to consider whether the sentence imposed was so lenient as to shock the conscience of the community and if the original sentence could be considered manifestly inadequate. The court also examined the onus of proof on the Director in such appeals, the relevance of comparable cases, and the likelihood of deportation at the conclusion of the sentence. The Director's appeal hinged on the application of the principles set out in CMB v Attorney-General (NSW) and the necessity to ensure that the sentence adequately reflected the gravity of the crime.
The Court of Appeal, after thorough consideration of the arguments and the relevant case law, found that the original sentence was indeed manifestly inadequate. The court emphasised the need for sentences to reflect the seriousness of the offence and the community's expectations. The likelihood of deportation was deemed irrelevant in this context. The court highlighted that the sentence must be sufficient to meet the purposes of punishment, deterrence, and denunciation. Based on these principles, the court allowed the Director's appeal, resentencing Zhuang to 22 years imprisonment with a non-parole period of 17 years, thereby increasing the severity of the penalty to better align with community standards and the gravity of the offence.