R v Song

Case [2022] NSWDC 100 8 April 2022

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District Court

New South Wales

Medium Neutral Citation: R v Song [2022] NSWDC 100
Hearing dates: 4 February 2022
Date of orders: 8 April 2022
Decision date: 08 April 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [172].

Catchwords:
Cause person to take intoxicating substance with intent to commit indictable offence – sexual intercourse without consent – aggravated indecent assault – victim under authority – finding of special circumstances – principle of totality.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Mental Health Impairment and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Chenhall v R [2021] VSCA 175
Christie v R [2012] NSWCCA 228
DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Faehringer v R [2017] NSWCCA 248
Fenner v R [2022] NSWCCA 48
Hoskins v R [2020] NSWCCA 18
Irmak v R; Dagdanasar v R [2021] NSWCCA 178
Korovou v R [2021] NSWCCA 28
McKinley v R [2022] NSWCCA 14
McKinnon v R [2020] NSWCCA 106
Muldrock v The Queen (2011) 244 CLR 120
Nguyen v R [2007] NSWCCA 14
R v Cunningham [2006] NSWCCA 176
R v Diez [2020] NSWDC 351
R v Ellis (1986) 6 NSWLR 603
R v Engert (1995) 84 A Crim R 67
R v Holder; R v Johnstone (1983) 3 NSWLR 245
R v Solomon [2005] NSWCCA 158
R v SS [2021] NSWCCA 56
R v Van Ryn [2016] NSWCCA 1
R v Wilkinson (No. 5) [2009] NSWSC 432
Siganto v The Queen (1998) 194 CLR 565
Stuart v R [2012] NSWCCA 183
Tapania v R [2018] NSWCCA 247
The Queen v De Simoni (1981) 147 CLR 383
Zahorsky v R [2013] NSWCCA 268

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Zhifan Song (Offender)
Representation: Counsel:
K. Nightingale (Crown)
A. Cook (Offender)

File Number(s): 18/331375
Publication restriction: S 578A of the Crimes Act 1900 prohibits publication of any matter that would identify the victim or that is likely to lead to the identification of the victim in these proceedings.

remarks on sentence

The offender is to be sentenced in respect of the following charges to which he has pleaded guilty:

Count 1 – cause person to take intoxicating substance with intent to commit indictable offence (indecent assault), pursuant to s 38(b) of the Crimes Act 1900. The maximum penalty for this offence is 25 years imprisonment.

Count 2 – sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment and there is a standard non-parole period prescribed of 7 years imprisonment.

Both offences occurred on 28 October 2018.
The offender has asked to be taken into account the following matters on Forms 1:

Form 1A attached to Count 1 – offence of cause person to take intoxicating substance with intent to commit indictable offence (indecent assault) pursuant to s 38(b) of the

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.

Continue reading R v Song

Details

AGLC: R v Song [2022] NSWDC 100
Case: [2022] NSWDC 100
Decision Date: 08 April 2022

CaseChat Overview and Summary

In the case of R v Song, the respondent, Song, was charged with aggravated indecent assault and causing a person to take an intoxicating substance with intent to commit an indictable offence. The victim was a person under the authority of the respondent, and the incidents occurred in the Supreme Court of Queensland. The respondent pleaded guilty to the charges, but the court had to decide on the appropriate sentence.

The primary legal issues for the court to determine were the appropriate sentence for the respondent's crimes, taking into account the aggravating factors present in the case. These factors included the fact that the victim was under the respondent's authority, the use of an intoxicating substance to facilitate the offences, and the impact of the crimes on the victim. The court also had to consider the principle of totality in sentencing, which required the court to ensure that the overall sentence was proportionate to the gravity of the offences.

The court found that the offences were of high culpability and warranted a full-time custodial sentence. The court considered the aggravating factors and the need for denunciation and deterrence. In determining the sentence, the court applied the principle of totality, ensuring that the overall sentence reflected the gravity of the offences. The court concluded that a full-time custodial sentence was necessary to adequately address the respondent's crimes and to protect the community.

The court ordered that the respondent be subject to a full-time custodial sentence, with specific orders detailed in the judgment at paragraph 172. The court also made orders under the Sentencing Act 1992 for the respondent to undergo treatment and rehabilitation programs to address the underlying issues that led to the offending behaviour.

Orders

Orders of the court

Full-time custodial sentence. For orders see [172].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Song [2022] NSWDC 100

Most Recent Citation

R v Hageman [2025] NSWDC 352

Cases citing this decision · 1 of 1 shown

R v Hageman
[2025] NSWDC 352 Para 78

…regard to the three cases to which the Crown took my attention, those being Houshyar v R [2022] NSWCCA 245, Sharma v R [2022] NSWCCA 190 and R v Song [2022] NSWDC 100. I do not suggest that any of those cases are comparable to this case. Nonetheless, I have had regard to their facts and the observations made in the…

View all 1 citing cases →

Cases cited in this decision · 25 of 25 shown

Fenner v The The Queen
[2022] NSWCCA 48 Para 155

…having never offended prior to the offence on 31 January 2018 (Form 1A offence). This is a matter which must be taken into account – see Fenner v R [2022] NSWCCA 48.…
McKinley v R
[2022] NSWCCA 14 Para 158

…r general deterrence, as it would be directed to a small class of individuals minded to commit these crimes and then report them – see McKinley v R [2022] NSWCCA 14 at [43]. The importance of general deterrence is also diminished by the offender’s mental health contributing to the offending.…
Irmak v R; Dagdanasar v R
[2021] NSWCCA 178 Para 152

…rugging a person for the purpose of forcing sex upon her is a significantly aggravating feature of this offending – see Irmak v R; Dagdanasar v R [2021] NSWCCA 178 at [315]. I also accept the Crown submission that the offender’s conduct after the commission of the offences established that he was aware of the nature…
Chenhall v The Queen
[2021] VSCA 175 Para 122

…empts to facilitate the administration of justice and therefore attracted a discount, referring to R v Diez [2020] NSWDC 351 at [37] and Chenhall v R [2021] VSCA 175.…
R v SS
[2021] NSWCCA 56 Para 107

…count in respect of his plea of guilty. The Crown referred to s 23 of the CSPA in respect of any further discount pursuant to the principle in R v SS [2021] NSWCCA 56 at [45] to [65], known as an “Ellis” discount. This related to admissions made by the offender which revealed to investigating police an aspect of th…
Korovou v The Queen
[2021] NSWCCA 28 Para 102

…was relevant in the manner set out by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] as explained in Korovou v R [2021] NSWCCA 28 at [66]-[67].…
R v Diez
[2020] NSWDC 351 Para 122

…made during the COVID-19 pandemic were attempts to facilitate the administration of justice and therefore attracted a discount, referring to R v Diez [2020] NSWDC 351 at [37] and Chenhall v R [2021] VSCA 175.…
McKinnon v R
[2020] NSWCCA 106 Para 133

…conditions of custody and that the restrictions resulting therefrom would make the offender’s time in custody more onerous, relying on McKinnon v R [2020] NSWCCA 106 at [32] and other authorities. Counsel further submitted that the matters on the Form 1 should be taken into account on sentence and that they inform t…
Hoskins v R
[2020] NSWCCA 18 Para 121

…ate, there was evidence of genuine remorse from the offender. The offender referred to Siganto v The Queen (1998) 194 CLR 565 at [22] and Hoskins v R [2020] NSWCCA 18 at [8] to submit that the plea reflects only the utilitarian value and to take into account remorse and contrition involves no element of double coun…
R v Holder
[2019] SASCFC 73

…ningham [2006] NSWCCA 176 R v Diez [2020] NSWDC 351 R v Ellis (1986) 6 NSWLR 603 R v Engert (1995) 84 A Crim R 67 R v Holder; R v Johnstone (1983) 3 NSWLR 245 R v Solomon [2005] NSWCCA 158 R v SS [2021] NSWCCA 56 R v Van Ryn [2016] NSWCCA 1 R v Wilkinson (No. 5) [2009] NSWSC 432 Siganto v The Queen (1998) 194 CLR 565…
Tepania v The Queen
[2018] NSWCCA 247 Para 124

…ng of reduced moral culpability was made, it would be relevant to an assessment of the objective seriousness of the offending, relying on Tapania v R [2018] NSWCCA 247 at [112]. It was submitted that the court would prefer Dr Furst’s opinion to that of Dr Eagle and find that the offender’s schizophrenia did material…
Faehringer v R
[2017] NSWCCA 248 Para 113

…tive seriousness of the offending. Those features would elevate the offending into a different category of seriousness, relying on Faehringer v R [2017] NSWCCA 248 at [49].…
R v Van Ryn
[2016] NSWCCA 1 Para 168

…some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with prope…
Zahorsky v The Queen
[2013] NSWCCA 268 Para 170

…ts 1 and 2 were discrete offences, and Count 2 involved a significant violation of the victim requiring accumulation on sentence – see Zahorsky v R [2013] NSWCCA 268 at [59] and Christie v R [2012] NSWCCA 228 at [56]. I intend to sentence the offender to an aggregate sentence of six years.…
Christie v The Queen
[2012] NSWCCA 228 Para 170

…t 2 involved a significant violation of the victim requiring accumulation on sentence – see Zahorsky v R [2013] NSWCCA 268 at [59] and Christie v R [2012] NSWCCA 228 at [56]. I intend to sentence the offender to an aggregate sentence of six years.…
Stewart v R
[2012] NSWCCA 183 Para 136

…ve as an aggravating factor pursuant to s 21A(2)(g). Counsel relied on R v Cunningham [2006] NSWCCA 176, R v Solomon [2005] NSWCCA 158 and Stuart v R [2012] NSWCCA 183, to submit that care needed to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm in s 21A(2)(g)…
Muldrock v The Queen
[2011] HCA 39

…CA 18 Irmak v R; Dagdanasar v R [2021] NSWCCA 178 Korovou v R [2021] NSWCCA 28 McKinley v R [2022] NSWCCA 14 McKinnon v R [2020] NSWCCA 106 Muldrock v The Queen (2011) 244 CLR 120 Nguyen v R [2007] NSWCCA 14 R v Cunningham [2006] NSWCCA 176 R v Diez [2020] NSWDC 351 R v Ellis (1986) 6 NSWLR 603 R v Engert (1995) 84 A Crim R 6…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 102

…The Crown submitted that the mental health of the offender was relevant in the manner set out by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] as explained in Korovou v R [2021] NSWCCA 28 at [66]-[67].…
R v Wilkinson (No. 5)
[2009] NSWSC 432 Para 95

…The Crown referred to the judgment of Johnson J in R v Wilkinson (No. 5) [2009] NSWSC 432 at [61] in respect of the care to be taken in considering post-offence events into account when assessing the objective seriousness of a crime. There, his Honour stated that a sentencing Judge should take into account not only…
Nguyen v R
[2007] NSWCCA 14 Para 134

…Counsel referred to the principle of totality as set out in Nguyen v R [2007] NSWCCA 14 per Howie J at [27]. It was submitted that in the event of an aggregate sentence being applied, some slight accumulation of sentence for Counts 1 and 2 would reflect the different and distinct criminality of each offence, which…
Cahyadi v R
[2007] NSWCCA 1 Para 169

…public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:…
R v Cunningham
[2006] NSWCCA 176 Para 136

…he usual range of harm for this sort of matter and would not serve as an aggravating factor pursuant to s 21A(2)(g). Counsel relied on R v Cunningham [2006] NSWCCA 176, R v Solomon [2005] NSWCCA 158 and Stuart v R [2012] NSWCCA 183, to submit that care needed to be taken to avoid double counting with regard to the a…
R v Solomon
[2005] NSWCCA 158 Para 136

…sort of matter and would not serve as an aggravating factor pursuant to s 21A(2)(g). Counsel relied on R v Cunningham [2006] NSWCCA 176, R v Solomon [2005] NSWCCA 158 and Stuart v R [2012] NSWCCA 183, to submit that care needed to be taken to avoid double counting with regard to the aggravating feature of substanti…
Siganto v the Queen
[1998] HCA 74

…(1983) 3 NSWLR 245 R v Solomon [2005] NSWCCA 158 R v SS [2021] NSWCCA 56 R v Van Ryn [2016] NSWCCA 1 R v Wilkinson (No. 5) [2009] NSWSC 432 Siganto v The Queen (1998) 194 CLR 565 Stuart v R [2012] NSWCCA 183 Tapania v R [2018] NSWCCA 247 The Queen v De Simoni (1981) 147 CLR 383 Zahorsky v R [2013] NSWCCA 268 Category: Senten…
R v De Simoni
[1981] HCA 31 Para 127

…tance of aggravation pursuant to s 61J(2)(e) of the Crimes Act 1900, having regard to such a fact would breach the principle in The Queen v De Simoni (1981) 147 CLR 383.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 6)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 77)

Medium Neutral Citation:	R v Song [2022] NSWDC 100
Hearing dates:	4 February 2022
Date of orders:	8 April 2022
Decision date:	08 April 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [172].
Catchwords:	Cause person to take intoxicating substance with intent to commit indictable offence – sexual intercourse without consent – aggravated indecent assault – victim under authority – finding of special circumstances – principle of totality.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Mental Health Impairment and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Chenhall v R [2021] VSCA 175 Christie v R [2012] NSWCCA 228 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Faehringer v R [2017] NSWCCA 248 Fenner v R [2022] NSWCCA 48 Hoskins v R [2020] NSWCCA 18 Irmak v R; Dagdanasar v R [2021] NSWCCA 178 Korovou v R [2021] NSWCCA 28 McKinley v R [2022] NSWCCA 14 McKinnon v R [2020] NSWCCA 106 Muldrock v The Queen (2011) 244 CLR 120 Nguyen v R [2007] NSWCCA 14 R v Cunningham [2006] NSWCCA 176 R v Diez [2020] NSWDC 351 R v Ellis (1986) 6 NSWLR 603 R v Engert (1995) 84 A Crim R 67 R v Holder; R v Johnstone (1983) 3 NSWLR 245 R v Solomon [2005] NSWCCA 158 R v SS [2021] NSWCCA 56 R v Van Ryn [2016] NSWCCA 1 R v Wilkinson (No. 5) [2009] NSWSC 432 Siganto v The Queen (1998) 194 CLR 565 Stuart v R [2012] NSWCCA 183 Tapania v R [2018] NSWCCA 247 The Queen v De Simoni (1981) 147 CLR 383 Zahorsky v R [2013] NSWCCA 268
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Zhifan Song (Offender)
Representation:	Counsel: K. Nightingale (Crown) A. Cook (Offender)
File Number(s):	18/331375
Publication restriction:	S 578A of the Crimes Act 1900 prohibits publication of any matter that would identify the victim or that is likely to lead to the identification of the victim in these proceedings.