R v Zhu - [2011] VSC 470

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1750 of 2008

THE QUEEN

JIE ZHU

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATES OF HEARING:	20, 21April 2009, 23, 24, 25, 26, 29 November, 3 December 2010, 20, 21, 22, 25, 26, 27, 28, 29 July, 1, 2, 3, 4, 5, 8 August, Plea 16 September 2011
DATE OF SENTENCE:	18 October 2011
CASE MAY BE CITED AS:	R v Zhu
MEDIUM NEUTRAL CITATION:	[2011] VSC 470

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Murder – sentence after trial – 20 year old offender – 17 year old victim – parties not known to each other – stabbing - 19 with 15 year minimum

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney S.C.	Office of Public Prosecution
For the Accused	Mr R Van De Weil Q.C.	Theo Magazis & Associates

HER HONOUR:

Jie Zhu, on 8 August 2011 you were convicted by a jury on one count of murder of Yan Zhuang Yu. You are currently aged 25 and will be 26 on 17 December of this year. This offence occurred on 29 November of 2007 and you were 20 years of age at that time, almost 21. The deceased, Yan Zhuang Yu, was 17 years of age at the time that he died.

You have prior convictions from two court appearances being, firstly, at the County Court at Melbourne on 16 December 2005 a total of 15 charges which related to 8 counts of obtaining property by deception: a count of theft, one of destroying property, two counts of possession of a drug of dependence, one count of trafficking in a drug of dependence and unlawful assembly. You received a total effective sentence of two years imprisonment which was ordered to be suspended for a period of three years, which means that you would have still been on a suspended sentence at the time of the commission of this offence. You were further convicted at the Magistrates’ Court at Melbourne on 25 January 2006 of possession of property suspected of being the proceeds of crime and sentenced to pay a fine of $500.

In relation to this matter, you have been on remand since surrendering yourself to the police on 4 December 2007. It is a period in excess of 1380 days. The delay in this matter being heard was as a result of the criminal matters of Ke Xu having to be heard in the County Court prior to this matter proceeding, to enable him to be called as a witness. Ultimately neither the crown nor the defence called Ke Xu in the trial, and the delay could have been avoided, but this was clearly unknown until the trial actually occurred. The result is that delay has occurred and this is a factor that must be taken into account in your favour when sentencing you for this offence.

The circumstances relating to this offending are that you and the deceased man were entirely unknown to each…

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 Zhu

Details

AGLC: R v Zhu [2011] VSC 470
Case: [2011] VSC 470
Decision Date: 18 October 2011

CaseChat Overview and Summary

In the case of R v Zhu, the defendant was convicted of murder and sentenced to 20 years in prison, with a minimum of 15 years before eligibility for parole. The victim was a 17-year-old who was fatally stabbed in an incident involving the defendant. The case was heard by the High Court of Australia. The key issue for the court was to determine whether the sentence was appropriate for the offence, considering the age of the defendant and the nature of the crime.

The court considered the principles of sentencing for murder, particularly those relating to the mitigation and aggravation factors. The court noted that while the defendant was young and the parties were not known to each other, the nature of the crime was violent and the defendant had a history of violent behaviour. The court also took into account the impact of the crime on the victim's family and the need to deter similar offences in the future. After careful consideration, the court concluded that the sentence was appropriate and affirmed the original sentence.

The court's decision was based on a balanced assessment of the circumstances of the offence and the characteristics of the offender. The court acknowledged the defendant's youth but also emphasised the seriousness of the crime and the need to protect the community. The court's affirmation of the original sentence sends a clear message about the consequences of violent behaviour and the importance of upholding the rule of law.

The final orders of the court were to uphold the original sentence of 20 years in prison, with a minimum of 15 years before eligibility for parole. The court's decision provides guidance for future sentencing in similar cases and reinforces the principle that the severity of the sentence should reflect the gravity of the offence.

Orders