Zhao v The Queen

Case [2018] ACTCA 38


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

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 35

Criminal Code 2002 (ACT) s 603(7)

Cases Cited:

Attorney-General v Tichy (1982) 30 SASR 84

Barbaro v The Queen [2014] HCA 2; 253 CLR 58
Cranfield v The Queen [2018] ACTCA 3

House v The King (1936) 55 CLR 449

Luu v R [2008] NSWCCA 285
Miller v The Queen [2018] ACTCA 21
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
O’Brien v The Queen [2015] ACTCA 47
R v Jarrold [2010] NSWCCA 69
R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103
R v XX [2009] NSWCCA 115; 195 A Crim R 38

R v Sutton [2004] NSWCCA 225; 41 MVR 40

Parties:

Mr L Zhao (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr K Archer (Appellant)

Mr J White (Respondent)

Solicitors

Kamy Saeedi Law (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 65 of 2017

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Robinson AJ

Date of Decision:         14 December 2017

Case Title:  R v Zhao

Citation: [2017] ACTSC 385

THE COURT:

  1. 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
  1. All four offences arose under s 603(7) of the Criminal Code 2002 (ACT), and carry a maximum penalty of 10 years’ imprisonment.

  1. 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…

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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.

Consequently, the appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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