Xian v The King - [2024] VSCA 227

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0055

JING XIAN	Appellant
v
THE KING	Respondent

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JUDGES:	BOYCE and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2024
DATE OF JUDGMENT:	8 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 227
JUDGMENT APPEALED FROM:	DPP v Hmung (County Court of Victoria, Judge O’Connell, 8 December 2023)

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CRIMINAL LAW – Appeal – Sentence – Aggravated home invasion – Crown conceded fresh evidence from forensic psychologist should be admitted – Appellant vulnerable in adult prison – Whether ‘special reason’ not to impose term of imprisonment and fix non-parole period of three years or more – Whether ‘substantial and compelling circumstances that are exceptional and rare’ – Appellant transferred to youth justice centre by Adult Parole Board – Appellant’s vulnerability of diminished importance – Appeal dismissed.

Children, Youth and Families Act 2005 s 471; Sentencing Act 1991 ss 10AC, 10A, 32.

DPP v Lombardo (2022) 102 MVR 19; Fisher v The Queen [2018] VSCA 222; DPP v Hudgson [2016] VSCA 254; R v Verdins (2007) 16 VR 269.

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Counsel
Appellant:		Mr SJ Tovey
Respondent:		Ms K Argiropoulos SC with Mr L McAuliffe
Solicitors
Appellant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
ORR JA:

In the early hours of 18 June 2022, the appellant, with a large group of co-offenders, engaged in three home invasion style attacks. The attacks took place against the backdrop of violent incidents involving two youth gangs, the ‘Brotherhood’ and the ‘Southside Boys’. Each of the homes was occupied by innocent family members of youths said to be associated with the Southside Boys. They were terrorised, and indeed, feared for their lives. The offenders also inflicted significant property damage at each home, as well as to nearby vehicles.
On 21 July 2023,[1] the appellant pleaded guilty to five charges arising from the attacks. On 8 December 2023, he was sentenced as follows:
[1]DPP v Hmung (County Court of Victoria, Judge O’Connell, 8 December 2023) [130] (‘Reasons’).

Charge

Offence

Maximum

Sentence

Cumulation

1

Aggravated home invasion[2]

25 years’
imprisonment

4 years and 6 months’
imprisonment

Base

2

Damaging property[3]

10 years’
imprisonment

12 months’
imprisonment

Nil

3

Aggravated burglary[4]

25 years’
imprisonment

4 years’
imprisonment

6 months

4

Damaging property

10 years’
imprisonment

12 months’
imprisonment

Nil

5

Attempted aggravated burglary[5]

20 years’
imprisonment

4 years’
imprisonment

6 months

Total effective sentence

5 years and 6 months’ imprisonment

Non-parole period

3 years

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

30 days

Section 6AAA statement

Total effective sentence: 7 years; non-parole period: 4 years and 9 months

[2]Contrary to s 77B of the Crimes Act 1958.
[3]Contrary to s 197(1) of the Crimes Act 1958.
[4]Contrary to s 77 of the Crimes Act 1958.
[5]Contrary to ss 321M and 77 of the Crimes Act 1958.

On 22 March 2024,[6] the appellant filed an application for leave…

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 Xian v The King

Details

AGLC: Xian v The King [2024] VSCA 227
Case: [2024] VSCA 227
Decision Date: 8 October 2024

CaseChat Overview and Summary

Xian appealed against his sentence for aggravated home invasion, arguing that the trial judge erred in imposing a three-year imprisonment term with a non-parole period of one year and nine months. The Crown conceded that fresh evidence from a forensic psychologist, indicating the appellant’s vulnerability in adult prison, should be admitted. The appellant submitted that special reasons existed not to impose a term of imprisonment and to fix a non-parole period of three years or more, while the Crown argued that there were no substantial and compelling circumstances warranting such a decision.

The court identified the legal issue as whether the appellant’s vulnerability in adult prison constituted special reasons not to impose a term of imprisonment and to fix a non-parole period of three years or more. The court noted that while the appellant’s transfer to a youth justice centre by the Adult Parole Board diminished the importance of his vulnerability in adult prison, the fresh evidence did not establish exceptional and rare circumstances. The court found that the appellant’s offending conduct and the need to protect the community were compelling considerations in favour of a term of imprisonment. The court concluded that the trial judge was correct in imposing a term of imprisonment and setting a non-parole period of one year and nine months.

The appeal was dismissed, and the original sentence was affirmed. The court held that the trial judge had considered all relevant factors and exercised his discretion appropriately. The appellant’s vulnerability in adult prison was not considered a sufficient ground for departing from the sentencing principles applicable to aggravated home invasion. The court emphasised the importance of protecting the community and ensuring that the sentence reflects the seriousness of the offending conduct. The final orders were that the appeal be dismissed and the original sentence be affirmed.

Orders