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Wan v The Queen

Wan v The Queen

Case [2019] VSCA 81 11 April 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 100

SHENGLIANG WAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 March 2019
DATE OF JUDGMENT:	11 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 81
JUDGMENT APPEALED FROM:	[2018] VSC 195 (Kaye JA)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter by unlawful and dangerous act – Fight between applicant aged 23 and deceased aged 19 – Applicant threw deceased to ground and repeatedly stomped on deceased’s head – Previous good character – Early plea of guilty – Remorse – Good prospects of rehabilitation – Sentenced to eleven years’ imprisonment with non-parole period of seven years and six months – Whether manifestly excessive – Youth of offender given less weight due to type of offending – DPP v Lawrence (2004) 10 VR 125, May-Jordan v The Queen [2017] VSCA 30, applied – Prospect of no parole and then deportation – Whether imprisonment more burdensome – Sentencing Act 1991 s 5(2AA)(a) – Zhao v The Queen [2018] VSCA 267, considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy SC	David Barrese & Associates
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

McLEISH JA

T FORREST JA:

After standing trial on a charge of murder, the applicant was convicted on the alternative charge of manslaughter, to which he had earlier pleaded guilty. He was sentenced to a term of 11 years’ imprisonment with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal against that sentence on the sole ground that the sentence was manifestly excessive, particularly having regard to his plea of guilty, his remorse and conduct immediately after the event and his isolation in custody. Leave to appeal was refused by a single judge.[1] The applicant has elected under s 315(2) of the Criminal Procedure Act 2009 to have his application determined by the Court constituted by at least two judges.
[1][2018] VSCA 217.

For the reasons that follow, the application for leave to appeal is refused.

Summary of offending

The incident which was the subject of the charge took place in LaTrobe Place, Melbourne shortly before 10:30 pm on Friday 15 April 2016. At the time, the applicant was 23 years of age and studying at the Royal Melbourne Institute of Technology. The victim, Longxiang Hu, was 19 years of age and a secondary school student at Yarra Valley Grammar school undertaking his studies for the Victorian Certificate of Education.

Approximately a month earlier, Mr Hu had commenced a relationship with Ms Yongying Jiang, who was also a student at the school. At that time, Ms Jiang had been friendly with Wuyang Ji. Mr Ji became upset when Mr Hu commenced his relationship with Ms Jiang. The applicant was a close friend of Mr Ji, who was five years younger than him. In the weeks before 15 April…

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 Wan v The Queen

Details

AGLC: Wan v The Queen [2019] VSCA 81
Case: [2019] VSCA 81
Decision Date: 11 April 2019

CaseChat Overview and Summary

The case of Wan v The Queen involved an appeal against a sentence imposed for manslaughter by unlawful and dangerous act. The applicant, aged 23, had thrown the deceased, aged 19, to the ground and repeatedly stomped on the deceased's head during a fight. The applicant had a previous good character and pleaded guilty early, expressing remorse and showing good prospects for rehabilitation. The trial judge sentenced the applicant to eleven years’ imprisonment with a non-parole period of seven years and six months, a sentence the applicant contended was manifestly excessive. The Court of Appeal was required to determine if the sentence was indeed manifestly excessive and whether the prospect of no parole followed by deportation rendered imprisonment more burdensome.

The court considered the principles of sentencing, particularly the youth of the offender and the nature of the offending. The youth of the offender was given less weight due to the type of offending, as per DPP v Lawrence and May-Jordan v The Queen. The prospect of no parole followed by deportation was also considered, drawing on Zhao v The Queen. The court acknowledged the severity of the offence but noted the applicant's early guilty plea, remorse, and good prospects of rehabilitation. The court found that while the offence was serious, the sentence imposed was not manifestly excessive given the mitigating factors.

The Court of Appeal concluded that the sentence was appropriate and not manifestly excessive. The prospect of no parole followed by deportation was not sufficient to render the imprisonment more burdensome. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of balancing the gravity of the offence with the mitigating factors in sentencing, particularly in cases involving young offenders with potential for rehabilitation.

Orders