R v Zhao - [2017] ACTSC 385

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Zhao
Citation:	[2017] ACTSC 385
Hearing Date(s):	10 November 2017, 13 December 2017
DecisionDate:	14 December 2017
Before:	Robinson AJ
Decision:	See [43] to [51] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled substance other than cannabis, namely methylamphetamine and heroin – offender’s evidence not accepted – attempt to minimise involvement in drug enterprise – better than average prospects of the offender upon release – importance of deterrence.
Legislation Cited:	Criminal Code 2002 (ACT), s 603(7) Criminal Code Regulations 2005 (ACT), sch 1
Cases Cited:	Bui v The Queen [2015] ACTCA 5 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Knight v Victoria [2017] HCA 29; 345 ALR 560 Mill v The Queen (1988) 166 CLR 59 R v Clinch (1994) 72 A Crim R 301 R v Toumo’ua [2017] ACTCA 9 Wong v The Queen [2001] HCA 64; 207 CLR 584
Parties:	The Queen (Crown) Lei Zhao (Accused)
Representation:	Counsel Ms E Beljic (Crown) Mr M Kukulies-Smith (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Accused)
File Number(s):	SCC 41 of 2017

Robinson AJ:

Lei Zhao, the offender, pleaded guilty before this Court to four charges on an indictment as follows:

Count 1That he, in the Australian Capital Territory on 15 October 2015, trafficked in a controlled drug other than cannabis, namely methylamphetamine;
Count 2That he, in the Australian Capital Territory on 15 October 2015, trafficked in a controlled drug other than cannabis, namely heroin;
Count 3That he, in the Australian Capital Territory between 30 April 2016 and 15 July 2016, trafficked in a controlled drug other than cannabis, namely methylamphetamine; and
Count 4That he, in the Australian Capital Territory on 14 July 2016, trafficked in a controlled drug other than cannabis, namely methylamphetamine.

Mr Zhao first appeared in the Magistrates Court on 15 July 2016 in relation to what became Counts 3 and 4, to which he pleaded not guilty. He was remanded in custody and did not apply for bail. Later, on 17 October 2016, he was charged with what became Counts 1 and 2 being the historically earlier trafficking offences, to which he also pleaded not guilty.

The matter was committed to this Court for trial on 22 February 2017. It was then set down for trial in the week commencing 28 August 2017.On 16 August 2017, Mr Zhao pleaded guilty to the offences set out above.

These late pleas of guilty nevertheless have utility even in the face of a strong Crown case and I will allow approximately 10% discount for this fact. (See R v Toumo’ua [2017] ACTCA 9)

Penalties

All four offences arise under s 603(7) of the Criminal Code 2002 (ACT) and carry a maximum penalty of 10 years imprisonment.

October 2015 offences (Counts 1 and 2)

The offences occurring on 15 October 2015 arose as a result of police…

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 [2017] ACTSC 385
Case: [2017] ACTSC 385
Decision Date: 14 December 2017

CaseChat Overview and Summary

The case of R v Zhao involved the respondent, Zhao, who was convicted of trafficking in a controlled substance, specifically methylamphetamine and heroin. Zhao was brought before the court to address the sentencing that followed his conviction. The primary legal issues the court had to consider were the appropriate sentence for the offence of trafficking in a controlled substance, the credibility of Zhao's evidence, and the broader objectives of sentencing, including deterrence and the prospects of rehabilitation. The court had to weigh the severity of the offence against the personal circumstances of Zhao, including his attempts to minimise his involvement and his prospects of rehabilitation upon release.

The court gave considerable weight to the nature and scale of the trafficking operation, noting that the quantities of methylamphetamine and heroin involved were significant. It also considered Zhao's attempts to downplay his role, which the court found undermined his credibility. The court held that the sentence must reflect the seriousness of the crime and serve a deterrent purpose. While acknowledging that Zhao had better than average prospects of rehabilitation, the court concluded that these prospects did not warrant a lenient sentence given the substantial impact of his crimes on the community. The court ultimately determined that a custodial sentence was necessary to adequately address the seriousness of the offence and to deter similar conduct in the future.

In arriving at its decision, the court emphasised the importance of deterrence in cases involving the trafficking of controlled substances. It noted that such offences have a profound impact on society and that the sentence must reflect the gravity of the crime. The court balanced this with the need to consider the individual circumstances of Zhao, including his prospects for rehabilitation. Ultimately, the court found that the appropriate sentence was one that balanced these considerations, resulting in a custodial term that was sufficient to meet the objectives of punishment and deterrence.

The final orders of the court included a custodial sentence for Zhao, with specific details regarding the length and conditions of the sentence provided in the court's written reasons. The court also ordered that Zhao be subject to certain post-release conditions to assist in his rehabilitation and to further the objectives of deterrence.

Orders

Orders of the court

See [43] to [51] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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