SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Zhao v The Queen
Citation:
[2018] ACTCA 38
Hearing Date:
15 August 2018
DecisionDate:
10 September 2018
Before:
Murrell CJ, Burns and Bromwich JJ
Decision:
The appeal is dismissed.
Catchwords:
APPEAL – APPEAL AGAINST SENTENCE – whether the primary judge erred in failing to adequately take into account the appellant’s plea of guilty – whether the pleas should have been treated as early pleas – negotiations with the Crown – whether the primary judge fell into error by taking into account the strength of the Crown case – whether the primary judge erred in providing too much accumulation between the sentences for Counts 3 and 4
On 14 December 2017 the appellant was sentenced to a term of 5 years’ imprisonment for three offences of trafficking in methylamphetamine and one offence of trafficking heroin. The sentences imposed by the primary judge were as follows:
Count 1
Traffic in methylamphetamine on 15 October 2015
2 years 3 months’ imprisonment commencing 14 July 2016 and expiring 13 October 2018
Count 2
Traffic in heroin on 15 October 2015
16 months’ imprisonment commencing 14 July 2016 and expiring 13 November 2017
Count 3
Traffic in methylamphetamine between 30 April 2016 and 15 July 2016
3 years 2 months’ imprisonment commencing 14 January 2017 and expiring 13 March 2020
Count 4
Traffic in methylamphetamine on 14 July 2016
2 years 6 months’ imprisonment commencing 14 January 2019 and expiring 13 July 2021
All four offences arose under s 603(7) of the Criminal Code 2002 (ACT), and carry a maximum penalty of 10 years’ imprisonment.
The appellant appealed from the sentences imposed by the primary judge. The Notice of Appeal originally specified four grounds of appeal, but two of these were abandoned at the hearing of the appeal. The grounds upon which the appeal was conducted were:
(a)the primary…
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 Zhao v The Queen
Sign in free to access the full text
Details
AGLC
Zhao v The Queen [2018] ACTCA 38
Case
[2018] ACTCA 38
Decision Date
CaseChat Overview and Summary
The appeal concerned a challenge to the sentence imposed on the appellant, Mr Zhao, by the primary judge. The dispute centred on whether the primary judge had adequately considered the appellant's plea of guilty, the timing of that plea in relation to negotiations with the Crown, and the accumulation of sentences for specific counts. The appeal was heard by Murrell CJ, Burns and Bromwich JJ.
The legal issues before the appellate court were whether the primary judge erred in failing to treat the appellant's pleas of guilty as sufficiently early, whether the primary judge was correct to take into account the strength of the Crown's case when sentencing, and whether the accumulation of sentences for Counts 3 and 4 was excessive.
The Court of Appeal found no error in the primary judge's sentencing. It was held that the plea of guilty, while entered, was not considered sufficiently early to warrant a greater discount, particularly in light of the stage of proceedings and the nature of negotiations with the Crown. The Court affirmed that the strength of the Crown's case is a relevant consideration for a sentencing judge. Furthermore, the accumulation of sentences for Counts 3 and 4 was deemed appropriate and not an error of law.