Ye Zhao v The Queen
[2018] VSCA 28
•19 February 2018
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 weight to the Applicant’s previous good character;
c. The Learned Sentencing Judge failed to give sufficient weight to the Applicant’s ‘reasonable’ prospects of rehabilitation;
d. The Learned Sentencing Judge failed to give sufficient weight to current sentencing practices.
At the hearing of the application for leave to appeal, I granted Zhao leave to add a further related ground of appeal which seeks to identify a specific error, namely:
2. The Learned Sentencing Judge, in imposing sentence upon charges 3-7, the Applicant being sentenced as a ‘serious sexual offender’ on charges 4-7, failed to accord any, or sufficient, weight to the principle that the offences the subject of these charges fell within the one incident or episode or transaction.
Leave was granted to add ground 2 as the issue it identified became the principal focus of the oral submissions in support of the application for leave to appeal, and raised questions concerning the tension, which the sentencing judge acknowledged,[2] between the common law principle of totality and the presumption of full cumulation for serious sexual offenders under s 6E of the SentencingAct 1991.[3] The ground also raises the issue of the statutory directive with respect to serious offenders under s 6D(a), that the protection of the community is to be the primary purpose for which the sentence is imposed, and its relationship to the principle of totality. Consequential orders were made for the filing of supplementary written cases to address ground 2.
[2]Ibid [78].
[3]See, for example, Gordon (a Pseudonym) v The Queen [2013] VSCA 343 [74] (Redlich JA); Matheas v The Queen [2017] VSCA 330 [46]-[50] (‘Matheas’).
Circumstances of the offending
The offending relates to two separate occasions involving the same victim, Ms Li (‘Li’).[4] The first incident occurred on or near 31 October 2015 (charged between 1 October 2015 and 1 November 2015) and the second occurred on 22 November 2015. Zhao was aged 24 at the time of the offending.
[4]A pseudonym.
On the first occasion, Li, while having a coffee at a café, was ‘chatting’ with Zhao on WeChat. Zhao picked her up in his car and invited her to his apartment to help him tidy up. Zhao cooked some food and they watched television together. While they were watching television, Zhao made Li perform oral sex on him and ejaculated into her mouth. Li did not freely consent to the penetration and Zhao did not have a reasonable belief that she was consenting to the oral penetration. This is the conduct constituting charge 2.
On the second occasion, on 22 November 2015, Zhao had been in contact with Li throughout the day, indicating that he wanted to give her something and sending her photographs of flowers he had left outside her door. In the evening, Zhao arranged to meet Li and her friend at a restaurant in Chinatown. He picked both of them up in his car and dropped Li’s friend home. Zhao then drove Li to his apartment.
Zhao and Li argued for approximately an hour before leaving the apartment. Li asked Zhao to drive her to her friend’s house. They continued arguing in the car before Zhao suddenly turned the car around and drove back towards his apartment. Li asked him to stop the car but he did not.
In the carpark of Zhao’s apartment, Zhao pulled Li out of the car and into the apartment while she struggled. Zhao pushed Li onto his bed and tried to take her clothes off. He reached into her clothes and touched her breast (charge 3). The applicant put his fingers into the victim’s vagina (charge 4), while she said ‘no’ and screamed. Li slapped Zhao, bit his shoulder, struggled and screamed. Zhao hit her and put a pillow on her face.
After demanding that she take her clothes off, Zhao put Li on the bed and penetrated her vagina with his penis (charge 5) without using a condom. Zhao then had Li perform oral sex on him (charge 6) before penetrating her vagina with his penis (charge 7) while using a condom. Li did not consent to any of the penetrations.
When Zhao went into the bathroom, Li put on a bra and underwear and ran to the next door neighbour’s apartment. The police were called and arrived shortly thereafter.
The judge’s reasons
After describing the circumstances of the offending, the judge stated that she took Zhao’s plea of not guilty as an indicator that he was not remorseful.[5] The judge noted that Zhao did not have any prior court appearances and therefore was a person of previous good character.[6]
[5]Sentencing reasons [18].
[6]Ibid [21], [46].
In reference to the objective seriousness of the offending, the judge considered that charge 5 was aggravated by the lack of a use of condom and that charge 2 was aggravated by ejaculation into Li’s mouth.[7]
[7]Ibid [20].
The judge went on to consider Zhao’s plea submissions regarding the objective seriousness of the offence. She noted that Zhao’s counsel had conceded that rape was a serious offence and that general deterrence and punishment were important considerations.[8] The judge acknowledged that she was required to take into account that the offending occurred on two separate occasions and that it involved different types of penetration. Counsel conceded that the second incident occurred over an extended period of time, only ended because Li escaped, and involved some acts of additional violence.[9] The offending also involved a breach of trust.[10] Conversely, the judge had regard to Zhao’s submissions that the offending did not involve humiliation or degradation or a high level of additional violence other than the violence inherent in rape.[11]
[8]Ibid [24].
[9]Ibid [25].
[10]Ibid [26], [44].
[11]Ibid [41]–[42].
The judge took into account that Zhao faced the risk of deportation to China at the end of his sentence and that this concern would make imprisonment more burdensome for him.[12] She also noted the submission that imprisonment would result in a ‘thwarted ambition’ of Zhao’s to become a permanent resident of Australia.[13] The judge considered that given Zhao’s age, family support, lack of criminal history and good education, his prospects were ‘objectively strong’ despite the fact that he proceeded to trial.[14] A number of references as to Zhao’s good character were also submitted.[15]
[12]Ibid [37].
[13]Ibid [35].
[14]Ibid [47].
[15]Ibid [48]–[59].
In reference to sentencing statistics submitted by Zhao’s counsel, the judge stated that although statistics have their place in sentencing, ‘that is merely one of the considerations I must take into account when determining the appropriate sentence’.[16] Similarly, she noted the limitations of comparing cases given the ‘range of circumstances and offending behaviour that can occur when rape has been committed’.[17] The judge accepted the concession by Zhao’s counsel that a term of imprisonment was the only appropriate disposition.[18]
[16]Ibid [60] citing DPP v Dalgliesh (2017) 91 ALJR 1063, 1067 [7], [9] (‘Dalgliesh’).
[17]Sentencing reasons [62], citing Kalofolias v The Queen [2017] VSCA 308 (‘Kalofolias’).
[18]Ibid [63].
In considering the prosecution submissions, the judge had regard to Li’s victim impact statement, including the personal, social and financial impact the offending had on her.[19]
[19]Ibid [68]–[74].
The judge was well aware that she was required to sentence Zhao as a serious sexual offender on charges 4-7. She stated that she agreed with the submission that although the serious offender provisions of ss 6D and 6E of the Sentencing Act applied to charges 4 to 7, a disproportionate sentence was not required to achieve the principal purpose of community protection and she could appropriately sentence Zhao without the need to impose a disproportionate sentence.[20] The judge cited Gordon (a Pseudonym) v The Queen[21] in which the interaction between the principle of totality and s 6E of the Sentencing Act was discussed. She quoted Redlich JA in that case as saying:
A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[22]
[20]Ibid [75]–[77]. See s 6D(b) of the Sentencing Act.
[21][2013] VSCA 343.
[22]Ibid [74] cited in Sentencing reasons [78].
The judge agreed with the prosecution submission that the offending on the first occasion was forced and aggravated by ejaculation and that the second occasion involved additional violence and detention.[23] The prosecution also submitted that the offending involved a degree of premeditation and that Zhao had ‘manifested a clear intention’ to have sex with Li and ‘would not take no for an answer’.[24] Li had to flee from the situation and was terrified.[25]
[23]Reasons [79]–[80].
[24]Ibid [82].
[25]Ibid [84].
The judge agreed with the characterisation by the prosecution of the seriousness of the offending as mid-range, specifically that ‘the first incident was at least mid mid-range and the second a bit higher, towards the high range’.[26]
[26]Ibid [83].
The prosecution relied on the need for a trial, Zhao’s lack of remorse, and the character references he obtained which indicated that he was still of the opinion that he had done nothing wrong. The judge noted that Zhao would not be penalised for contesting the charges but would not receive the discount in sentence associated with a guilty plea.[27]
[27]Ibid [85].
The judge considered that while the character references tendered in support of Zhao indicated that there were a number of people in Australia who supported him, there would be restrictions on Zhao’s ability to have contact with his family in China while incarcerated.[28]
[28]Ibid [86].
In regard to Zhao’s prospects of rehabilitation, the judge stated that she had some concern as to how to gauge his prospects given he did not seem to think that he had done anything wrong.[29] She considered his prospects of rehabilitation as ‘reasonable’ given his good work history and lack of criminal record.[30]
[29]Ibid [87].
[30]Ibid [89].
Finally, before proceeding to sentence Zhao, the judge stated that she was taking into account the principles of totality and proportionality.[31] She was mindful that charges 4-7 occurred as part of a single incident. She said:
I am conscious also when sentencing you that Charges 3, 4, 5, 6 and 7 occurred on the same occasion and within a relatively short period of each other. As such, consideration must be given to totality.[32]
[31]Ibid [91].
[32]Ibid [92].
Ground 1 —manifest excess
Zhao submitted that the individual sentences on each of the six charges and the orders for cumulation are manifestly excessive resulting in a total effective sentence and a non-parole period that is manifestly excessive. In particular, he submitted that the judge gave insufficient weight to his status as a foreign national and the lack of access he would have in prison to people of his own ethnicity and the social contacts he had made in Australia. He also submitted that the judge gave insufficient weight to his previous good character, his prospects of rehabilitation which the judge characterised as ‘reasonable’ and to current sentencing practices, [33] understood as including the principles that have been consistently applied in sentencing.
[33]He relied on statistics published by the Sentencing Advisory Council in support of the proposition that the sentences are outside the range reasonably open to the judge. See Sentencing Advisory Council, Sentencing Snapshot No 207: Rape (May 2017); Sentencing Advisory Council, Sentencing Snapshot No 208: Indecent Assault (May 2017).
The Crown submitted, in regard to current sentencing practice, that there is nothing in the sentence to indicate any error. It submitted that sentencing statistics were of little assistance in determining the appropriate sentence because Zhao did not have the benefit of a guilty plea, did not accept responsibility, show remorse, or have any relevant Verdins considerations. These are common factors that would influence the sentences reflected in the statistics.[34]
[34]The Crown provided a number of cases as an indicator of current sentencing practices since the High Court’s guidance in Dalgliesh, including: Kalofolias [2017] VSCA 308; Matheas [2017] VSCA 330; Shrestha v The Queen [2017] VSCA 364, and DPP v Davis [2017] VSCA 341.
Nevertheless, on the hearing of the application for leave to appeal, the Crown, while opposing a grant of leave, acknowledged that the total effective sentence was ‘very stern indeed’ and that the application for leave to appeal was not hopeless.
I consider that ground 1 is reasonably arguable.
Ground 2 —a single incident and its impact on cumulation
Zhao submitted that the judge failed to give any, or sufficient weight, to the fact that charges 3, 4, 6 and 7 all occurred in the course of a single incident. The failure to give sufficient weight to the fact that the bulk of the offending occurred within a single episode rendered the orders for cumulation excessive. He submitted that the orders for cumulation result in a sentence of effectively 12 years for the offending that occurred during the second incident, with an additional 18 months to be served in relation to the first incident, and that this was in breach of the principle of totality.
At the hearing, Zhao relied upon R v Carson,[35] a decision of this Court (Charles JA, Crockett AJA, Southwell AJA). Carson involved a plea of guilty with respect to five sexual offences committed upon a boy aged 12 years. Counts 1, 2 and 4 on the presentment occurred on 13 March 1994 when Carson took the boy to watch a football practice match at Ballarat. Counts 5 and 6 occurred on a day between 27 December 1994 and 4 January 1995 when Carson was driving the boy to the beach at Breamlea. Counts 1, 2, 5 and 6 involved acts of oral penetration. Count 4 was the offence of committing an indecent act with a child under the age of 16. Carson fell to be sentenced as a ‘serious sexual offender’ within the meaning of s 3 of the Sentencing Act as it was at the relevant time. The terms of the serious sexual offender provisions in the Sentencing Act at that time are comparable to the current serious sexual offender provisions. The Court attributed significance to the fact that counts 1 and 2 took place on a single occasion, as did counts 5 and 6. It said:
There is another consideration upon which counsel for the respondent relied. The first two offences of oral penetration were committed consecutively but during one incident. So also were the offences in counts 5 and 6. While the law is, as has been said, that upon the passing of two sentences of imprisonment for such offences the offender falls to be sentenced as a ‘serious sexual offender’, it is not without some significance to acknowledge that there were really not four incidents occurring at different times but were two incidents on only two occasions. The respondent’s conduct would be regarded more seriously if there had been four such incidents.[36]
[35](Unreported, Supreme Court of Victoria, Court of Appeal, 6 October 1995) (‘Carson’).
[36]Ibid 7.
Zhao relied upon Carson for the proposition that, in applying the serious sexual offender provisions of the Sentencing Act, and especially s 6D(a) and s 6E, it is necessary to take into account, and give appropriate weight to, the fact that the offending conduct the subject of the charges occurred within one incident, episode or transaction. He submitted that the judge failed to give any, or sufficient, weight to this.
The Crown accepted that the issue was raised in the proceeding and, while it might be reasonably arguable, would be rebutted on the appeal.
In my view, ground 2 is reasonably arguable.
The leave granted extends to both grounds of appeal.
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