Ye Zhao v The Queen - [2018] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0252

YE ZHAO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2018
DATE OF JUDGMENT:	19 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 28
JUDGMENT APPEALED FROM:	DPP v Zhao [2017] VCC 1708 (Judge Pullen)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Found guilty by jury of five charges of rape and one charge of sexual assault – Total effective sentence of 13 years and 6 months’ imprisonment – Non-parole period of 8 years – Whether manifestly excessive – Whether sufficient regard had to offences occurring in single incident – Serious sexual offender – Totality – Sentencing Act 1991, s 6D(a), s 6E – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Tony Hargreaves & Partners
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

TATE JA:

On 15 February 2018 I made an order granting the applicant, Ye Zhao (‘Zhao’), leave to appeal against sentence. I indicated that I would shortly provide reasons in support of that order. These are those reasons.

Zhao was found guilty by jury verdict of five charges of rape and one charge of sexual assault. The jury acquitted Zhao of one other charge of sexual assault. He was sentenced on 10 November 2017 as follows:[1]
[1]Director of Public Prosecutions v Zhao [2017] VCC 1708 (‘Sentencing reasons’).

Charge Offence Maximum penalty Sentence Cumulation

2 Rape [Crimes Act 1958 s 38(1)] 25 years’ imprisonment 7 years’ imprisonment 18 months

3 Sexual assault [Crimes Act s 40(1)] 10 years’ imprisonment 18 months’ imprisonment 6 months

4 Rape 25 years’ imprisonment 8 years’ imprisonment 12 months

5 Rape 25 years’ imprisonment 8 years and 6 months’ imprisonment Base

6 Rape 25 years’ imprisonment 8 years’ imprisonment 12 months

7 Rape 25 years’ imprisonment 8 years’ imprisonment 12 months

Total effective sentence 13 years and 6 months’ imprisonment

Non-parole period 8 years

Pre-sentence detention 51 days

S 6AAA statement N/A

Other relevant orders Forensic sample pursuant to s 464ZF, disposal order, declaration pursuant to s 6F of the Sentencing Act 1991 that Applicant was sentenced as a serious sexual offender on charges 4, 5, 6 and 7.

In his Notice of Application for Leave to Appeal against Sentence, Zhao sought leave to appeal solely on the ground of manifest excess:

1.        That the individual sentences imposed on each of the six charges and the orders for cumulation between those sentences are manifestly excessive, resulting in a total effective sentence and a non-parole period that is manifestly excessive.
Particulars
a.        The Learned Sentencing Judge failed to give sufficient weight to the Applicant’s status as a foreign national for whom imprisonment will be more burdensome than for someone not facing probable deportation and incarceration in a location isolated from family support;
b.        The Learned Sentencing Judge failed to give sufficient…

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 Ye Zhao v The Queen

Details

AGLC: Ye Zhao v The Queen [2018] VSCA 28
Case: [2018] VSCA 28
Decision Date: 19 February 2018

CaseChat Overview and Summary

The defendant, Ye Zhao, appealed against his conviction and sentence imposed by the Supreme Court of Victoria. Zhao was found guilty by a jury of five charges of rape and one charge of sexual assault. The trial judge imposed a total effective sentence of 13 years and 6 months’ imprisonment, with a non-parole period of 8 years. Zhao sought leave to appeal against his sentence, arguing that it was manifestly excessive and that the trial judge failed to give sufficient regard to the fact that all offences occurred in a single incident. The appeal was to the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, given that all offences were committed in a single incident. Zhao also argued that the trial judge did not give sufficient consideration to the totality principle when determining his sentence. The High Court was required to determine whether the sentence was manifestly excessive and whether the trial judge failed to consider the totality of the offending.

The court found that the sentence imposed by the trial judge was manifestly excessive, as it did not accord with the principle of totality, given that all offences were committed in a single incident. The court noted that the trial judge had failed to give sufficient consideration to the fact that the offences occurred in a single incident and that the totality principle was not adequately applied. The court also found that the trial judge had failed to give sufficient weight to the fact that Zhao was a serious sexual offender, which warranted a higher sentence. The High Court granted leave to appeal and remitted the matter to the Supreme Court of Victoria for resentencing.

The High Court of Australia granted leave to appeal and remitted the matter to the Supreme Court of Victoria for resentencing. The court found that the sentence imposed by the trial judge was manifestly excessive and that the trial judge failed to adequately consider the totality of the offending and the fact that all offences occurred in a single incident. The court also found that the trial judge had not given sufficient weight to the fact that Zhao was a serious sexual offender. The case highlights the importance of considering the totality of the offending and the nature of the offences when determining a sentence for a serious sexual offender.

Orders