Gao v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0212

MINGDONG GAO	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2025
DATE OF JUDGMENT:	1 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 88
JUDGMENT APPEALED FROM:	[2023] VCC 2058 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to make threat to kill, aggravated burglary and rape – Rolled up rape charge encompassing three penetrations – Offending occurred in context of extended campaign of coercive behaviour by applicant towards victim for purposes of having her withdraw a family violence complaint and assist him with application for permanent residency – Whether sentence for rape, orders for cumulation and non-parole period manifestly excessive – Application for leave to appeal refused.

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Counsel
Applicant:		Mr H Moodie
Respondent:		Mr L McAuliffe
Solicitors
Applicants:	Wiin Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
T FORREST JA:

On 11 October 2023 the applicant pleaded guilty to one charge each of make threat to kill, aggravated burglary and rape. The rape charge was a rolled up charge comprising both digital and penile penetration of the victim’s vagina. Following a plea hearing on 16 October 2023 he was sentenced on 26 October 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Make threat to kill[1]	10 years	2 years	12 months
2	Aggravated burglary[2]	25 years	6 years	18 months
3	Rape[3]	25 years	12 years	Base
Total Effective Sentence:		14 years 6 months
Non-Parole Period:		11 years
Pre-sentence Detention Declared:		750 days
Section 6AAA Statement:		Total Effective Sentence 16 years 6 months Non Parole-Period 13 years
Other Relevant Orders: 1. Nil

[1]Contrary to s 20 of the Crimes Act 1958.

[2]Contrary to s 77 of the Crimes Act 1958.

[3]Contrary to s 38 of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.

By Notice of Application for Leave to Appeal Against Sentence dated 24 June 2024 the applicant sought leave to appeal against sentence on the following three grounds
(1)The learned sentencing judge erred in failing to accord any additional weight to the applicant’s guilty plea on account of its heightened utilitarian value in the context of the effects of the COVID-19 pandemic.
(2)The learned sentencing judge erred in characterising the applicant’s pleas of guilty as late.
(3)The sentences imposed on the individual charges, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive having regard to, in particular:
(a)The applicant’s plea of guilty.
(b)The applicant’s lack of any prior convictions; and
(c)The sentence judge’s finding that the applicant had reasonable prospects of rehabilitation.
In advance of the oral hearing the applicant indicated his intention to withdraw grounds 1 and 2. Leave was given for him to so. At the hearing of the application the complaint in ground 3 as to the individual sentences imposed on charges 1 and 2 was abandoned.
We have determined the application accordingly.
For the reasons that follow we would refuse leave to appeal.

The offending

The applicant – a Chinese national – entered Australia on a one year visa prior to the start of the COVID-19 pandemic. He met YJ – a Chinese national with Australian permanent residency – online on the website YEEYI in April 2020. Thereafter they communicated via WeChat before meeting in person once COVID-19 pandemic restrictions had eased.
In August 2020 the applicant became a boarder in the home YJ shared with her adult daughter. The relationship between YJ and the applicant was occasionally sexual. He asked her to help him obtain permanent residency in Australia by marrying him. In exchange he offered her $50,000 to $60,000. YJ refused the arrangement.
The applicant’s behaviour became abusive, controlling and aggressive. In September 2020 YJ told the applicant to leave. She changed the locks. The applicant sat outside her home in his car. YJ made a complaint to police about this behaviour but, upon police attendance, declined to take the matter further. On the basis of the complaint police made application for an intervention order on her behalf.
In February 2021 the applicant became aware that police were attempting to serve him with an intervention order. He told YJ to tell the police that she did not want them involved. The applicant attended her home and instructed YJ to call the police and do so in his presence. She pretended to. The applicant then pulled YJ’s hair and kicked her before telling her that he would keep coming around if she did not call the police off.
On 18 February 2021 YJ admitted the applicant to her house after receiving a message from him that he was outside. The applicant asked her why the police were contacting him. YJ replied that it was the police rather than her who had obtained the intervention order. The applicant punched YJ in the chest and kicked her in both legs. He twisted her arms behind her back and, holding both her hands with one of his, put his other arm around her neck so that YJ struggled to breathe. She told him she would sponsor his citizenship application if he stopped hurting her. In response he said words to the effect of ‘You better do it. If I run into the law, I’ll kill you and bury you in an isolated area’ (charge 1 – make threat to kill).
Thereafter a number of incidents occurred in which the applicant attended YJ’s home. Originally the basis of additional charges, they were relied upon by the prosecution at the plea hearing as context for the offending relevant to charges 2 and 3. The incidents were:
(a)On 23 February 2021, being five days after the events relevant to charge 1, YJ rebuffed the applicant’s sexual advances. The applicant told her ‘you are mine, I own you’. He said that she was his wife and had to do more things for him. The applicant then forcefully sexually penetrated YJ with his penis.
(b)On 13 March 2021 the applicant questioned YJ about his immigration status and her efforts to have the police cease their search for him. He became angry and punched YJ hard on the right shoulder. She suffered pain and bruising.
(c)On 1 April 2021 the applicant asked for her help in establishing a business in exchange for a percentage of the profits. He threatened YJ, stating that he could not guarantee her safety if she did not obey the rules. YJ was visibly distressed and crying. The applicant took her to the couch where she said that she would help him with everything and asked him not to hurt her. The applicant then penetrated her vagina with his penis, telling YJ ‘you’re mine’ and ‘I own you’. He did not desist when requested by YJ to do so.
(d)On 5 April 2021 the applicant told YJ that she had to stop the police from contacting him and compensate him for her wrongdoing. YJ, in fear, told him that she would assist with his permanent residency application.
On the evening of 5 October 2021 YJ was at home with her daughter. At about 10:30 pm the applicant arrived in the vicinity and parked about 50 metres away, out of sight of the house. He then entered the house through a door in the lower basement. There he took off his shoes and jacket and left them in the doorway with his keys and bag. He was armed with a 30 cm meat cleaver (charge 2 – aggravated burglary).
YJ then observed a shadow in her kitchen. She recognized it as belonging to the applicant. The applicant confronted YJ. He asked if she had lodged the permanent residency sponsorship application. YJ, who had not, said that she had. The applicant asked for proof. When it was not forthcoming he produced the meat cleaver, punched and then grabbed YJ by the hair. The applicant pushed her into her bedroom and directed YJ to block the doorway with a bedside table. The applicant put the meat cleaver on the bed. After again asking about the immigration documents, he kicked YJ to the back. Becoming progressively angrier, he repeatedly asked YJ why she had obtained an intervention order against him. She remained quiet. The applicant said that YJ owed him because of the intervention order and needed to facilitate his permanent residency to make things even. He said that he did not ‘take shit’ and he would show her who was in charge. He threatened that if she lied to him, he would show her the consequences. The applicant said a person could be made to ‘disappear’ for $5,000 and said that YJ’s family would find her body.
The applicant forced YJ to kneel in front of him as he pulled her hair and questioned her about his immigration status. He then pulled her to her feet by her hair before twisting her nipples on the outside of her clothing before penetrating her vagina with his fingers (charge 3 – rape). The applicant said that he would stop if she helped him obtain permanent residency. YJ struggled to get away but was pushed back onto the bed several times. The applicant then pinned her to the bed with his body before removing her pants with his leg and foot as well as his own clothing. YJ asked him twice ‘do you know this is rape?’. The applicant said ‘not in my culture, this is between you and I’. The applicant inserted his penis into her vagina and ejaculated inside her (charge 3 – rape). Moments later YJ felt the applicant insert something sharp into her vagina. YJ said that he was hurting her but the applicant persisting pushing his fingers and the foreign object into her vagina (charge 3 – rape). YJ tried to struggle, but movement caused her more pain.
The applicant told YJ that she had deserved what had happened. He then put the meat cleaver under the bed and fell asleep.
YJ called 000. Police attended YJ’s home at about 5:00 am on 19 February 2021. The applicant was found naked in the bedroom wardrobe. Police recovered the meat cleaver from under the bed and his belongings from the floor inside the basement doorway.
YJ was conveyed to the Monash Medical Centre. Upon examination she was found to have a two by one centimetre superficial abrasion to the central spinal upper back region as well as bruising to her hip and upper thigh. There was swelling, bruising and abrasions to YJ’s vulva. Eight foreign bodies found to be seeds and fragments of the spice star anise were removed from her vagina.
When interviewed by police the applicant denied the offending. He said he was present at YJ’s house by invitation and that they had had consensual sex. He denied inserting foreign objects into her vagina. The applicant also claimed that he and YJ had been married for more than six months and said that he had applied for permanent residency.

Sentencing Reasons[4]

[4]DPP v Gao [2023] VCC 2058 (‘Reasons’).

The judge commenced her Reasons by summarising the applicant’s offending, characterising his behaviour after he had been asked to leave YJ’s house in September 2020 as ‘a campaign of intimidation and physical violence’ towards her. This campaign, the judge found, was for twin purposes: to have YJ ‘call off’ the police and to secure her assistance in getting permanent residency.[5] In so finding, the judge noted that the applicant would not be sentenced for the uncharged acts.[6]
[5]Reasons, [6].
[6]Reasons, [12].
The judge considered the impact of the offending on YJ, as detailed in her victim impact statement, before summarising the applicant’s personal circumstances as follows. The applicant was born in 1975 and was 47 years of age at the time of sentence. He is the youngest in a sibship of six born to poor farmers. Consequent upon the death of his father, the applicant left school and commenced a motor mechanic apprenticeship when he was 14 years old. He was employed as a mechanic for some years before setting up his own business in about 2003 or 2004. It ran successfully but without significant profit for about five years and employed 20 people. The applicant then moved to Russia and established a very successful motor mechanic business. After some years he sold the business and returned to China to provide financial and other support for his elderly mother. After she died the applicant decided to move to Australia. The applicant arrived in 2018 on a one year visa. He found work as a mechanic. The applicant has one child, the product of a brief marriage. He financially supported that child to study medicine in China. The applicant did not speak English.
Turning to the matters relied upon by the applicant in mitigation of sentence, the judge first addressed his plea of guilty which she described as ‘late’.[7] The judge rehearsed the procedural history as follows.
[7]Reasons, [41].
The applicant was arrested on 6 October 2021 and charged the following day. After several adjournments, a committal hearing took place in August 2022. Several witnesses were cross examined. This included YJ and medical witnesses. On 14 September 2022 the matter was listed before the County Court for an initial directions hearing. The applicant then told the court that there was no prospect of the matter resolving. An application for bail was refused in March 2023. After a series of directions hearings in August and September 2023 the trial was listed to commence on 10 October 2023. On that day the matter resolved. A plea indictment was filed and the applicant arraigned on 11 October 2023.
The judge noted the applicant’s submission that the late plea was attributable to the combination of several changes in solicitors, the difficulty of obtaining instructions because an interpreter was required and ‘getting enough time’ to confer. The judge accepted that those factors affected the timing of the plea ‘to some extent’.[8] The timing of the plea was found to be relevant to the degree of its utilitarian value and the issue of remorse. The judge said that the guilty plea freed the resources of the court and spared the witnesses, particularly YJ, the need to give evidence. While the judge did not accept the pleas as evidence of remorse, she did accept that by them, the applicant had accepted responsibility for his offending.
[8]Reasons, [41].
As to any heightened utilitarian value of the plea in the context of the strains placed on the legal system by the COVID-19 pandemic, the judge said that on 9 October 2023 –the day before the applicant’s trial was listed to commence – the Chief Judge announced that the backlog of cases in the County Court had returned to a level comparable with the pre-pandemic era. The judge concluded
I will mitigate your sentences to a degree by reason of the pleas of guilty. Whilst I have regard to the utilitarian benefit of the plea, I do not give that additional weight which was called for whilst the pandemic and its effect on the operations of the court persisted, particularly in view of the lateness of the resolution.[9]
[9]Reasons, [45].
The judge next addressed the impact of custodial conditions upon the applicant. The restrictions on movement and activities as a result of the pandemic were considered along with the applicant’s isolation due to the language barrier and lack of friends or family.
The judge also considered that it was a matter of regret to the applicant that he would be deported upon the expiry of his sentence. His position was found to be different, however, from that of a person who had settled in Australia and had links to, or family in, this country.
Turning to the issue of rehabilitation, the judge contrasted the applicant’s history as a motivated and hardworking man without prior convictions with the nature of his offending conduct. That conduct could not be characterised as a ‘one-off aberration or mistake’.[10] The judge assessed the applicant’s prospects for rehabilitation as reasonable.
[10]Reasons, [49].
The judge then assessed the gravity of the individual charges.
Charge 1 was found to be part of a series of acts towards YJ. That the threat was accompanied by other violence and made to persuade YJ to withdraw allegations made to police were found to increase the gravity of the offending.
The judge described charge 2 as a serious instance of aggravated burglary. It was part of a series of acts of intimidation designed to coerce YJ to withdraw police complaints and assist the applicant to obtain permanent residency. The applicant entered YJ’s home at night intending to assault her. He was stronger than her. He knew that YJ was already frightened of him. The judge said that she did not sentence the applicant on the basis that when he entered the home he intended to rape YJ.[11]
[11]Reasons, [59].
The judge said that the rapes of the rolled up charge 3 were used by the applicant to exert his power over YJ and ‘terrorise’[12] her into withdrawing police complaints and assisting him to obtain permanent residency. They occurred in a barricaded room in YJ’s home. They were accompanied by threatening words and additional violence. The second penetration occurred after the applicant had forcibly restrained YJ’s arms and she had twice said that what he was doing was rape. The applicant exposed YJ to the risk of pregnancy and disease as he did not use a condom and ejaculated in her vagina. The third penetration involved the painful insertion of items into YJ’s vagina. The judge described charge 3 as ‘very serious’. It called for a ‘significant sentence’.[13]
[12]Reasons, [54].
[13]Reasons, [58].
Addressing the issue of totality the judge noted the separate criminality involved in each charge. The judge said that she would impose individual sentences commensurate with the gravity of each charge and make moderate orders for cumulation.
The judge placed significant weight on the principle of general deterrence and some weight on those of specific deterrence and protection of the community. The judge found the need for denunciation and just punishment to have significant force. The judge also referred to current sentencing practice and the cases submitted to her by the prosecution as comparable.
In stating that a sentence greater than the standard sentence of ten years’ imprisonment would be imposed on charge 3, the judge said that it was a serious instance of the offence of rape. This was particularly because of its motivation and context and also because it was a rolled up count. The second and third penetrations were described by the judge as individually serious instances of the offence. The judge rejected the applicant’s submission that a longer than usual non-parole period was necessary. It was observed that the head sentence would be such that even a non-parole period which was more than 60 percent of the head sentence[14] would provide for a number of years of parole.
[14]Sentencing Act 1991, s 11A.

Applicant’s contentions

The essential submission of the applicant is that the sentence imposed on charge 3 in combination with the total effective sentence and the non-parole period demonstrate that the judge failed to appropriately balance the gravity of the offending with the matters upon which the applicant could call in aid in mitigation of sentence.
The applicant acknowledges that his offending was serious and called for a significant term of imprisonment. It was accompanied by aggravating features. It occurred as part of a campaign of coercion against YJ. Its effect on her was profound. The applicant nonetheless submits that the rape was not premeditated in so far as his intention when he entered YJ’s home was to assault her. He further submitted that the three rapes encompassed by charge 3 occurred close in time. The applicant argued that charge 1 occurred eight months before charges 2 and 3, was a less serious charge and he did not fall to be sentenced for the uncharged acts relevant to it.

The applicant emphasised the value of his plea of guilty, particularly as it avoided the necessity of a trial, spared YJ from giving evidence and demonstrated his acceptance of responsibility for his offending. He had reasonable prospects of rehabilitation as a result of his good work history and prior good character. His time in custody was affected by the pandemic restrictions. He was then profoundly isolated and continues to be so. The applicant does not speak English and has had no visits from family and friends. He will be deported at the expiry of his sentence.
Balancing those matters, the applicant argues that the sentence of 12 years imprisonment on charge 3 is manifestly excessive. The cumulation of 12 months of the sentence imposed on charge 1 and 18 months of the sentence imposed on charge 2 is thereby argued to produce a manifestly excessive head sentence. The non-parole period, being 76 percent of the head sentence is argued to be manifestly excessive in light of the applicant’s reasonable prospects for rehabilitation and his lack of criminal history.

Respondent’s contentions

The respondent contends that the sentence imposed on charge 3, the orders for cumulation, the total effective sentence and the non-parole period were within the range open to the judge.
The gravity of the offending and its effect on YJ are emphasised. The offending encompassed by charge 3 was motivated not just by sexual gratification but by the exercise of coercion and control. The three separate sexual penetrations were different. The third in particular involved degrading and humiliating conduct.
The respondent submits that the matters relied upon by the applicant in mitigation of penalty were modest. And, as found by the judge, his absence of a prior criminal history was tempered by the fact that the offending was not isolated.
The respondent further submits that the judge gave appropriate consideration to the principle of totality. The orders for cumulation were argued to be modest given the different nature of the offending, its context and temporal spread.

Consideration

In order to succeed on the ground that the impugned sentences are manifestly excessive, the applicant must demonstrate that they are wholly outside the range of sentencing options available to the judge in the sound exercise of her sentencing discretion. That requirement is a stringent one.
The applicant has failed to do so.
The circumstances relevant to charge 3 need only to be stated for their seriousness to be understood. After entering the premises with an intention to assault, the applicant had, at least by the time he punched YJ in her kitchen, grabbed her by the hair and forced her into the bedroom, formed an intention to rape. It is unlikely that his possession of star anise in the bedroom was mere happenstance. That intention to rape was formed as part of an extended history of intimidation through verbal, physical and sexual violence against YJ. The applicant terrorised her for failing to have police ignore her complaints of his violence and failing to secure him permanent residency in Australia. The three sexual penetrations that followed were an exercise in punitive control.
The applicant, still armed with the meat cleaver, forced YJ herself to close off the means of escape from her bedroom.
The first digital penetration was preceded by the deliberate infliction of physical pain. The applicant hauled YJ by the hair from kneeling to standing and twisted her nipples. While the rape was occurring the applicant said it would stop if she did what he wanted.
The second penetration occurred after YJ struggled to get away and after she had twice told the applicant that what he was doing was rape. The applicant pushed her backwards on the bed – where he had placed the meat cleaver – and pinned her down with his body weight before removing her clothing. He told her that what he was doing was not rape in his culture, penetrated her vagina with his penis and ejaculated.
The third penetration in which the applicant inserted the star anise into YJ’s vagina turned an already very serious offence into something very grave. It was an act designed to degrade and humiliate YJ as well as cause her further physical pain. The spice was sharp and the applicant persisted with pushing it into YJ despite her struggle and her telling him that it hurt.
Only when that act was over – and he had told YJ that she deserved what had happened – did the applicant put the meat cleaver under the bed.
The victim impact statement of YJ makes plain the terror she experienced and the devastating consequences the applicant’s offending has had upon her.
The offence of rape carries a maximum term of 25 years’ imprisonment. The standard sentence for rape is ten years’ imprisonment. The judge considered this legislative guidepost. Taking into account the objective factors affecting the relative seriousness of charge 3, it is clear that the applicant’s offending far exceeds the middle of the range of seriousness. It was, as we have said, very grave.
That the judge imposed a sentence of 12 years’ imprisonment on charge 3 indicates that she gave appropriate weight to the relatively limited factors upon which the applicant relied in mitigation of penalty. In this regard any assessment of the utilitarian value of the very late plea and the applicant’s acceptance of responsibility must consider that, YJ was cross examined at contested committal proceedings. There it was suggested to her that the sexual penetrations were consensual.
Further, charges 1 and 2 involved distinct criminality and, in the case of charge 1, occurred some eight months prior. The orders for cumulation of one year and six months of the sentence imposed on charge 2 and one year of the sentence imposed on charge 1 were appropriate and reflected the judge’s consideration of the principle of totality. It follows that the total effective sentence and non-parole period were well within the range open to the judge.

Conclusion

Leave to appeal against sentence will be refused.

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[2025] VSCA 88

1 May 2025