Legal Research
Cases
Xian v The King

Xian v The King

Case [2024] VSCA 165 19 July 2024

Appeal

Sentencing

Aggravated & Exemplary Damages

Limitation Periods

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0055

JING XIAN	Applicant
v
THE KING	Respondent

---

JUDGES:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2024
DATE OF JUDGMENT:	19 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 165
JUDGMENT APPEALED FROM:	DPP v Hmung & Ors [2023] VCC (Judge O'Connell)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

---

CRIMINAL LAW – Appeal – Sentence – Aggravated home invasion, aggravated burglary and criminal damage – Serious examples of the offences – Applicant aged 18 years at time of offending – No ‘special reason’ why a term of imprisonment with a minimum non-parole period of 3 years should not be imposed for aggravated home invasion – No prior convictions – Risk of deportation – Total effective sentence of 5 years and 6 months’ imprisonment with non-parole period of 3 years – Whether sentence infringed principle of parity – Whether sentence manifestly excessive – Leave to appeal on grounds of parity and manifest excess refused.

Kellway (a pseudonym) v The King [2023] VSCA 109; Nipoe v The Queen [2020] VSCA 137, referred to.

CRIMINAL LAW – Appeal – Sentence – ‘New’ or ‘fresh’ evidence – Psychological material evidencing borderline intellectual functioning, features of dependent personality disorder and extreme vulnerability in adult custody – Whether error that there was no ‘special reason’ why a term of imprisonment with a minimum non-parole period of 3 years should not be imposed for aggravated home invasion – Leave to appeal granted.

Sentencing Act 1991, ss 10AC and 10A.

Nguyen v The Queen [2006] VSCA 184, followed; Betts v The Queen (2016) 258 CLR 420; Packard (A Pseudonym) v The Queen (2022) 300 A Crim R 55; DPP v Bowen (2021) 65 VR 385; Buckley v The Queen (2022) 71 VR 218 and DPP v Lombardo [2022] VSCA 204, referred to.

---

Counsel
Applicant:		Mr S Tovey
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and overview

On 4 October 2023 the applicant pleaded guilty to aggravated home invasion, criminal damage (two charges), aggravated burglary and attempted aggravated burglary. On 8 December 2023 he was sentenced as follows.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated Home Invasion	25 years’ imprisonment	4 years and 6 months’ imprisonment	Base
2	Criminal Damage	10 years’ imprisonment	1 year’s imprisonment	Nil
3	Aggravated Burglary	25 years’ imprisonment	4 years’ imprisonment	6 months
4	Criminal Damage	10 years’ imprisonment	1 year’s imprisonment	Nil
5	Attempted Aggravated Burglary	20 years’ imprisonment	3 years and 6 months’ imprisonment	6 months
Total Effective Sentence:		5 years and 6 months’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		30 days
Section 6AAA Statement:		7 years’ imprisonment with a non-parole period of 4 years and 9 months
Other Relevant Orders: N/A.

The applicant now seeks…

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 165
Case: [2024] VSCA 165
Decision Date: 19 July 2024

CaseChat Overview and Summary

Xian was convicted of aggravated home invasion, aggravated burglary, and criminal damage. He appealed against his sentence, which included a term of imprisonment with a minimum non-parole period of three years for the aggravated home invasion, and a total effective sentence of five years and six months. The Court of Appeal was required to determine whether the sentence was manifestly excessive or whether it infringed the principle of parity, and whether there was any 'special reason' why the minimum non-parole period should not be imposed.

The Court found that the sentence did not infringe the principle of parity or manifestly excessive. It also found that there was no'special reason' why the minimum non-parole period should not be imposed for the aggravated home invasion. However, the Court granted leave to appeal on the basis of 'new' or 'fresh' evidence, which included psychological material evidencing borderline intellectual functioning, features of dependent personality disorder and extreme vulnerability in adult custody.

The Court of Appeal considered that the evidence provided a compelling reason to reconsider the sentence. The Court found that there was a special reason why the minimum non-parole period should not be imposed, given the evidence of the appellant's psychological state and vulnerability. The appeal was therefore allowed and the matter was remitted to the sentencing court for reconsideration of the sentence.

The Court did not make any final orders, as the matter was remitted to the sentencing court for reconsideration of the sentence.

Orders