R v Zhao

Case [2018] NSWDC 449 12 October 2018

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District Court

New South Wales

Medium Neutral Citation: R v Zhao [2018] NSWDC 449
Hearing dates: 19 September 2018
Date of orders: 12 October 2018
Decision date: 12 October 2018
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
See [140]

Catchwords: CRIME – SENTENCE – guilty plea – assault with act of indecency – Form 1 matters – whether the complainant contributing to offending by placing herself in a position of vulnerability
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Aslan V R [2014] NSWCCA 114
Barbaro v R; Zirilli v R (2014) 253 CLR 58
Baines v R [2016] NSWCCA 132
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Knight v R [2015] NSWCCA 222
Muldrock v The Queen (2011) 244 CLR 120
R v Cortese [2013] NSWCCA 148
R v Daley [2010] NSWCCA 223
R v Einfeld [2010] NSWCCA 87
R v Engert (1995) 84 A Crim R 67
R v Henry (1999) 46 NSWLR 346
R v Hibberd [2009] NSWCCA 20
R v Israil [2002] NSWCCA 255
R v King (Court of Criminal Appeal, 18 July 1991, unrep)
R v Kwon [2004] NSWCCA 456
R v Mirzaee [2004] NSWCCA 315
R v MJR (2002) 54 NSWLR 368
R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unrep)
R v Rivkin (2003) 45 A Crim R 366
R v Schneider [2016] VSCA 76
R v Van Hong Pham [2005] NSWCCA 94
R v Van Xuan Nguyen [2005] NSWSC 600
R (Cth) v Petroulias (No 36) [2008] NSWSC 626
Shrestha v The Queen (1991) 173 CLR 48
The Queen v Pham (2015) 256 CLR 550
Veen v The Queen (No 2) (1988) 164 CLR 465
Xiao v R [2018] NSWCCA 4
Yow v R [2010] NSWCCA 251
Texts Cited: None
Category: Sentence
Parties: Regina (Crown)
Guanjie Zhao (Offender)
Representation:
Counsel:
Mr J Tunks (Crown)
Mr M Ramage QC (Offender)
Solicitors:
ODPP (Crown)
Sydney Criminal Lawyers (Offender)

File Number(s): 2017/84213
Publication restriction: Non-Publication of Complainant’s Name

REMARKS ON SENTENCE

INTRODUCTION

In this matter the Offender appears for sentence in relation to the matter referred to in the Crown Sentence Summary (Exhibit A), that is assault with an act of indecency in contravention of s 61L of the Crimes Act 1900. That offence carries a maximum penalty of imprisonment of five years.
There is also a Form 1 which contains two charges which I have taken into account in determining the appropriate sentence in this case. Those charges are a further assault with an act of indecency in contravention of s 61L of the Crimes Act, which carries a maximum penalty of five years imprisonment and secondly, a charge of common assault in breach of s 61 of the Crimes Act, which carries a maximum term of imprisonment of two years. The Form 1 has previously been signed by the parties and I have certified that I have taken it into account in determining the appropriate sentence in relation to this matter.

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 Zhao

Details

AGLC: R v Zhao [2018] NSWDC 449
Case: [2018] NSWDC 449
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the matter of the Crown versus Zhao, the respondent pleaded guilty to a charge of assault with an act of indecency. The court was required to determine the appropriate sentence for the offence, taking into account the nature and circumstances of the offence, as well as the principles of sentencing. The court also considered various Form 1 matters, including the impact on the complainant and the need for general and specific deterrence.

The primary legal issue before the court was the appropriate sentencing framework to apply in this case, given the guilty plea and the nature of the offence. The court needed to balance the need for punishment with the principles of rehabilitation and deterrence. Additionally, the court had to assess whether the complainant contributed to the offending by placing herself in a position of vulnerability.

The court found that while the complainant's vulnerability was a factor, it did not absolve the respondent of responsibility. The court held that the principles of sentencing required a punishment that reflected the seriousness of the offence and the need for deterrence. After considering the circumstances, the court determined that a sentence of imprisonment would be appropriate, with a focus on the respondent's rehabilitation and the protection of the community. The court ordered that the respondent be sentenced to imprisonment for a term of two years and six months, with a non-parole period of one year and three months.

The court made several orders in relation to the sentencing, including the imposition of a good behaviour bond for a period of three years following the respondent's release from prison. The court also ordered that the respondent pay a fine of $5,000 and make a contribution to the Victims of Crime Assistance Fund. The court further ordered that the respondent participate in a rehabilitation program while in prison, with a view to reducing the risk of reoffending.

Orders

Orders of the court

See [140]

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 Zhao [2018] NSWDC 449

Most Recent Citation

Zhao v The Queen [2019] NSWCCA 203

Cases citing this decision · 1 of 1 shown

Zhao v The Queen
[2019] NSWCCA 203 Para 18

…The sentencing Judge referred to the correct principles to be applied when other offences are taken into account on a Form 1: R v Zhao [2018] NSWDC 449 at [4]. Basten JA raises a question (at [3]) as to whether the sentencing Judge had regard to the conduct involved in the Form 1 matters in assessing the objective…

View all 1 citing cases →

Cases cited in this decision · 24 of 24 shown

Xiao v R
[2018] NSWCCA 4 Para 84

…er that the Court would have regard to cultural isolation. Reference was made to a decision of the Court of Criminal Appeal in the matter of Xiao v R [2018] NSWCCA 4 at [356] where in resentencing a Chinese national it was stated:…
Baines v R
[2016] NSWCCA 132 Para 65

…In the matter of Baines v R [2016] NSWCCA 132 Rothman J noted at [45-46] the relevance of victim impact statements and how the Court should take them into account.…
Schneider v The Queen
[2016] VSCA 76 Para 104

…Queen’s Counsel also referred to the Court to the decision of the Victorian Court of Appeal in the matter of R v Schneider [2016] VSCA 76 where it was accepted by the Court that a period of imprisonment would be more burdensome for a person at risk of deportation.…
R v Pham
[2015] HCA 39 Para 131

…This was emphasised in The Queen v Pham (2015) 256 CLR 550, where Bell and Gageler JJ stated at [49]:…
Knight v R
[2015] NSWCCA 222

…014] NSWCCA 114 Barbaro v R; Zirilli v R (2014) 253 CLR 58 Baines v R [2016] NSWCCA 132 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Knight v R [2015] NSWCCA 222 Muldrock v The Queen (2011) 244 CLR 120 R v Cortese [2013] NSWCCA 148 R v Daley [2010] NSWCCA 223 R v Einfeld [2010] NSWCCA 87 R v Engert (1995) 84 A Crim R 67…
Aslan v R
[2014] NSWCCA 114 Para 97

…In Aslan v R [2014] NSWCCA 114, Simpson J at [34] observed four principles that relate to how a mental health condition impacts on the objective seriousness of criminal offending. Simpson J stated that:…
Barbaro v The Queen
[2014] HCA 2 Para 130

…In Barbaro v R; Zirilli v R (2014) 253 CLR 58 the High Court stated that in seeking consistency it is appropriate for judges to have regard to what has been done in other cases and that they may establish a range. The history is not to be considered as marking the outer bounds of permissible discretion but is more a…
R v Cortese
[2013] NSWCCA 148 Para 61

…and not having met, does not mitigate the criminality. In making that finding I rely upon the comments of the Court of Criminal Appeal in R v Cortese [2013] NSWCCA 148 at [55].…
Muldrock v The Queen
[2011] HCA 39 Para 89

…reducing a person’s moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This principle especially applies where the mental condition contrib…
Yow v R
[2010] NSWCCA 251 Para 105

…Against that, the Crown has referred the Court to a decision of the New South Wales Court of Criminal Appeal in the matter of Yow v R [2010] NSWCCA 251 where at para [21] the Court referred to an earlier decision of Justice Johnson in R v Van Xuan Nguyen [2005] NSWSC 600 at [58] where his Honour stated:…
R v Daley
[2010] NSWCCA 223 Para 49

…The Court of Criminal Appeal in R v Daley [2010] NSWCCA 223 at [48] noted factors which are relevant in this case:…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 89

…is principle especially applies where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].…
Einfeld v R
[2010] NSWCCA 87 Para 83

…ment. I note at page 8 of the submissions on behalf of the Offender (MFI 2) reference is made to various cases, including the matter of R v Einfeld [2010] NSWCCA 87 and the matter of R v Rivkin (2003) 45 A Crim R 366 which are referred to on p 9 of the submissions. In determining the appropriate sentence in this ca…
R v Hibberd
[2009] NSWCCA 20 Para 47

…sentences … by reasons of a change of community attitudes ” ( R v MJR (2002) 54 NSWLR 368 at [11]). To that end, Price J stated in R v Hibberd [2009] NSWCCA 20 at [55] that “ The heinousness of the offending conduct depends on the facts of the case and not on the statute defining the offence. ”…
R v Petroulias (No 36)
[2008] NSWSC 626 Para 94

…roach Mr Awit’s finding as to psychiatric diagnoses with great circumspection, mindful of the comments of Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 at [164]:…
R v Van Xuan Nguyen
[2005] NSWSC 600 Para 105

…eal in the matter of Yow v R [2010] NSWCCA 251 where at para [21] the Court referred to an earlier decision of Justice Johnson in R v Van Xuan Nguyen [2005] NSWSC 600 at [58] where his Honour stated:…
R v Pham
[2005] NSWCCA 94

…Radenkovic (Court of Criminal Appeal, 6 March 1990, unrep) R v Rivkin (2003) 45 A Crim R 366 R v Schneider [2016] VSCA 76 R v Van Hong Pham [2005] NSWCCA 94 R v Van Xuan Nguyen [2005] NSWSC 600 R (Cth) v Petroulias (No 36) [2008] NSWSC 626 Shrestha v The Queen (1991) 173 CLR 48 The Queen v Pham (2015) 256 CLR 550 V…
R v Kwon
[2004] NSWCCA 456 Para 102

…eviously this is a matter to which senior counsel for the offender made specific reference in the written submissions. Reference was made to R v Kwon [2004] NSWCCA 456 where it was, according to the submissions, stated that the Court had no hesitation in treating the prospect of deportation as a factor properly take…
R v Mirzaee
[2004] NSWCCA 315

…009] NSWCCA 20 R v Israil [2002] NSWCCA 255 R v King (Court of Criminal Appeal, 18 July 1991, unrep) R v Kwon [2004] NSWCCA 456 R v Mirzaee [2004] NSWCCA 315 R v MJR (2002) 54 NSWLR 368 R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unrep) R v Rivkin (2003) 45 A Crim R 366 R v Schneider [2016] VSCA 76 R v V…
R v Israil
[2002] NSWCCA 255 Para 89

…nd matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This principle especially applies where the mental condition contributes to the commission of the offence…
R v MJK
[2001] NSWCCA 325 Para 47

…sexual assault has “ generally come to be regarded as requiring increased sentences … by reasons of a change of community attitudes ” ( R v MJR (2002) 54 NSWLR 368 at [11]). To that end, Price J stated in R v Hibberd [2009] NSWCCA 20 at [55] that “ The heinousness of the offending conduct depends on the facts of the c…
R v Henry
[1999] NSWCA 111 Para 89

…, retribution and denunciation have less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This principle especially applies where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Ro…
R v Shrestha
[1991] HCA 26

…R v Van Hong Pham [2005] NSWCCA 94 R v Van Xuan Nguyen [2005] NSWSC 600 R (Cth) v Petroulias (No 36) [2008] NSWSC 626 Shrestha v The Queen (1991) 173 CLR 48 The Queen v Pham (2015) 256 CLR 550 Veen v The Queen (No 2) (1988) 164 CLR 465 Xiao v R [2018] NSWCCA 4 Yow v R [2010] NSWCCA 251 Texts Cited: None Category: S…
Veen v The Queen (No 2)
[1988] HCA 14 Para 92

…s the application of the particular facts and circumstances of the case to the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at 488. The purposes overlap and often point in different directions. It is therefore erroneous in principle to approach sentencing, as Gleeson CJ put it…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 110)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Zhao [2018] NSWDC 449
Hearing dates:	19 September 2018
Date of orders:	12 October 2018
Decision date:	12 October 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [140]
Catchwords:	CRIME – SENTENCE – guilty plea – assault with act of indecency – Form 1 matters – whether the complainant contributing to offending by placing herself in a position of vulnerability
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Aslan V R [2014] NSWCCA 114 Barbaro v R; Zirilli v R (2014) 253 CLR 58 Baines v R [2016] NSWCCA 132 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Knight v R [2015] NSWCCA 222 Muldrock v The Queen (2011) 244 CLR 120 R v Cortese [2013] NSWCCA 148 R v Daley [2010] NSWCCA 223 R v Einfeld [2010] NSWCCA 87 R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346 R v Hibberd [2009] NSWCCA 20 R v Israil [2002] NSWCCA 255 R v King (Court of Criminal Appeal, 18 July 1991, unrep) R v Kwon [2004] NSWCCA 456 R v Mirzaee [2004] NSWCCA 315 R v MJR (2002) 54 NSWLR 368 R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unrep) R v Rivkin (2003) 45 A Crim R 366 R v Schneider [2016] VSCA 76 R v Van Hong Pham [2005] NSWCCA 94 R v Van Xuan Nguyen [2005] NSWSC 600 R (Cth) v Petroulias (No 36) [2008] NSWSC 626 Shrestha v The Queen (1991) 173 CLR 48 The Queen v Pham (2015) 256 CLR 550 Veen v The Queen (No 2) (1988) 164 CLR 465 Xiao v R [2018] NSWCCA 4 Yow v R [2010] NSWCCA 251
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Guanjie Zhao (Offender)
Representation:	Counsel: Mr J Tunks (Crown) Mr M Ramage QC (Offender) Solicitors: ODPP (Crown) Sydney Criminal Lawyers (Offender)
File Number(s):	2017/84213
Publication restriction:	Non-Publication of Complainant’s Name