Medium Neutral Citation: Zhao v R [2019] NSWCCA 203
Hearing dates: 22 July 2019
Date of orders: 26 August 2019
Decision date: 26 August 2019
Before: Basten JA at [1];
Johnson J [14];
Price J [29]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeals – appeal against sentence – indecent assault – whether sentencing judge erred in finding the objective seriousness of the offending as in the mid-range – whether sentencing judge erred by not giving sufficient weight to the applicant’s remorse – whether sentencing judge erred by failing to properly apply a sufficient discount for the guilty plea – whether sentencing judge erred by failing to consider alternatives to full time imprisonment – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW) ss 61, 61L
Crimes (Sentencing Procedure Act) 1999 (NSW) ss 5, 21A, 33, 68
Cases Cited: Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Aktar v R [2015] NSWCCA 123; (2015) 251 A Crim R 376
Alvares v R [2011] NSWCCA 33; (2011) 209 A Crim R 297
Anae v R [2018] NSWCCA 73
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bray v R [2018] NSWCCA 301
Cummins v R [2019] NSWCCA 163
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499
Imbornone v R [2017] NSWCCA 144
Kearsley v R [2017] NSWCCA 28; (2017) 265 A Crim R 233
Lewin v R [2017] NSWCCA 65
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Mun v R [2015] NSWCCA 234
Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Purdie v R [2019] NSWCCA 22
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Daley [2010] NSWCCA 223
R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
R v Zhao [2018] NSWDC 449
RL v R [2018] NSWCCA 274
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Guanjie Zhao (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr I Lloyd QC (Applicant)
Mr D Patch (Respondent)
Solicitors:
Chess Legal Pty Ltd (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/00084213
Publication restriction: Non-Publication of the Complainant’s name.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Zhao [2018] NSWDC 449

Date of Decision:

12 October 2018

Before:

Wilson SC DCJ

File Number(s):

2017/00084213

Judgment

BASTEN JA: In circumstances fully explained by Price J, Guanjie Zhao, was sentenced…

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

Details

AGLC: Zhao v The Queen [2019] NSWCCA 203
Case: [2019] NSWCCA 203
Decision Date: 26 August 2019

CaseChat Overview and Summary

In the case of Zhao v The Queen, the appellant, Mr. Zhao, challenged the sentence imposed by the primary judge in the County Court of Victoria. Mr. Zhao was convicted of indecent assault and appealed on several grounds, including the assessment of the objective seriousness of the offending, the weight given to his remorse, the discount for his guilty plea, and the consideration of alternatives to imprisonment. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The court was required to determine whether the primary judge had erred in assessing the objective seriousness of the offending as falling within the mid-range. The appellant argued that the seriousness should have been assessed as lower, given the circumstances of the case. Additionally, the court needed to consider whether the primary judge had adequately weighed the appellant's remorse, as well as whether a sufficient discount had been applied for the guilty plea. The appellant further contended that the primary judge had failed to properly consider alternatives to full-time imprisonment.

The Court of Appeal found that the primary judge had not erred in assessing the objective seriousness of the offending as mid-range. The court held that the evidence supported the primary judge's assessment and that the appellant's arguments did not warrant a different conclusion. Regarding the weight given to the appellant's remorse, the court found that the primary judge had appropriately considered this factor. The court also determined that the primary judge had adequately applied a discount for the guilty plea, and that the sentence imposed was not manifestly excessive. Consequently, the appeal was dismissed.

The Court of Appeal upheld the sentence imposed by the primary judge, finding no errors in the assessment of the offending's seriousness, the consideration of the appellant's remorse, the discount for the guilty plea, or the exploration of alternatives to imprisonment. The appeal was dismissed, and the original sentence was confirmed.

Orders