Zhao v The Queen

[2019] NSWCCA 203

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

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

1. BASTEN JA: In circumstances fully explained by Price J, Guanjie Zhao, was sentenced to imprisonment for 2 years 2 months, with a non-parole period of 17 months. I agree with the reasons given by Price J for rejecting the specific errors identified in the appeal grounds.

2. There remains a concern as to whether the sentence was, overall, manifestly excessive. Accepting the sentencing judge’s conclusion that the objective seriousness of the offending was “in the mid-range”, it is troubling that the judge commenced with a sentence which was almost exactly 50% of the maximum sentence available, before the discount for the plea. It may be noted that the judge’s reasons for concluding that the offence fell in the mid-range preceded consideration of possible aggravating and mitigating circumstances.

3. In substance, the judge rejected the proposition that there were any relevant aggravating features. It is true that two aspects of the applicant’s conduct resulted in further offences of common assault and indecent assault being placed on a Form 1, but it appears that the judge took the conduct involved in those aspects of the offending into account in assessing the objective seriousness of the single offence for which the applicant was to be sentenced.

4. Disregarding the subjective case for the applicant, a starting point of 50% of the maximum sentence would not be inappropriate. However, the subjective case for the applicant was entirely favourable, subject to one qualification. Thus, the applicant was undoubtedly a person of good character with no previous convictions, based on material which was detailed by the sentencing judge. The importance of this evidence was clearly accepted by the sentencing judge, stating that “the nature and circumstances of the offender of course being at the uppermost importance.”

5. The judge also noted the importance of remorse. The applicant had written a letter to the court articulating his shame and failure to live up to the standards inculcated by his family in China. The judge accepted that the guilty plea and the letter of apology were evidence of remorse. However, the judge also noted that the offender did not give evidence at the sentencing hearing “which affects the weight that the Court can give to his expressions of remorse.”

6. There were two objective considerations which might have affected the weight to be given to the expressions of remorse. They were, first, a lack of frankness in his first account to the police as to what had happened and, secondly, the delay in entering the plea. It is possible that these factors could have been partly explained by his fear of the consequences of a conviction and sentence, living in a foreign country. However no such explanation was presented because he did not give evidence.

7. These factors being unexplained, the judge was entitled to give less weight to the expressions of remorse than might otherwise have been the case. That is not so much because he did not give evidence, but because the obvious matters of concern were not explained. Nevertheless, the result is the same: the expression of remorse cannot be treated as unqualified.

8. Although the judge accepted and took account of the consequences of the offending for the applicant’s ability to complete his post graduate university training in Australia and to obtain a position in government or in the law, it is not clear how much weight was given to those factors. They were readily to be seen as significant long-term adverse consequences for the applicant.

9. I have taken into account the fact that the sentencing judge, in careful and comprehensive reasons has identified and addressed each of the relevant factors and, must be accorded a significant degree of latitude in assessing where within a permissible range the sentence should fall. In the course of the reasoning, however, there is a level of frustration expressed with the submissions of senior counsel who appeared for the offender. Thus, the judge noted that there had been “a number of exchanges” with counsel and that it was “somewhat alarming” that there were suggestions that in some way the complainant was at fault for the offending. The particular submissions were identified in three consecutive paragraphs of the judgment in respect of which the word “alarming” was used twice. The judge then stated:

“[60]    I utterly reject the suggestion that the complainant contributed to the objective seriousness of the offence in any way. It is entirely inappropriate in my view to focus on the conduct of the victim or to characterise the victim’s manner of dress or behaviour as provocative or as causing a vulnerability as somehow contributing to the commission of the offence.”

10. The passage concluded in the following terms:

“[62]   The submissions made by Queen’s Counsel for the Offender are completely and utterly out of touch with community expectations and standards. I reject those submissions and I will sentence the Offender by reference to the objective seriousness as established by the agreed facts. The circumstances which exist here in my view demonstrate the objective seriousness falls well and truly in the mid-range. The suggestion that it is in the low range is untenable.”

11. There can be no disagreement with the rejection of the submissions as recounted by the sentencing judge, nor with his conclusion as to the appropriate characterisation of the objective seriousness of the offending. Nevertheless, it is important not to allow criticism of counsel appearing for the offender to distract from an assessment of the significant subjective considerations enjoyed by the offender. Whether the judge’s expressions of alarm affected the ultimate result cannot be known.

12. This was a case where the trial judge did not have an advantage over this Court in having heard a trial or oral evidence. Given that this was a first offence and a first sentence of imprisonment, and given the generally favourable subjective circumstances of the applicant, in my view a starting point of 2 years 6 months imprisonment was manifestly excessive. Although there were two offences on a form 1, both were parts of the one course of conduct and appear to have been taken into account in assessing, correctly, the objective seriousness of this offence. In my view the appropriate starting point is one which can be properly assessed by this Court and should not exceed 2 years.

13. I would set aside the sentence imposed in the District Court and resentence the offender, after allowance for the 12% discount accepted by the trial judge for the guilty plea, and the variation of the non-parole period on account of special circumstances, to imprisonment for 1 year 9 months (21 months) with a non-parole period of 14 months. The sentence, commencing on 12 October 2018 thus includes a non-parole period which will expire on 11 December 2019.

14. JOHNSON J: I have had the advantage of considering the draft judgments of Basten JA and Price J. Like Basten JA, I agree with the reasons of Price J concerning the rejection of grounds of appeal which assert specific errors.

15. Basten JA and Price J have taken different views with respect to the fifth ground of appeal which contends that the sentence was manifestly excessive.

16. The Applicant was to be sentenced for a serious offence of indecent assault under s.61L Crimes Act 1900, an offence punishable by imprisonment for five years. In passing sentence for that offence, the sentencing Judge took into account the two offences on the Form 1, being a further offence of indecent assault and an offence of common assault under s.61 Crimes Act 1900. If prosecuted separately, the further s.61L offence would also be punishable by imprisonment for five years and the common assault offence, would have been punishable by imprisonment for two years. In taking these matters into account on sentence for the primary s.61L offence, the penalty imposed for that offence could not exceed the maximum penalty of imprisonment for five years: s.33(3) Crimes (Sentencing Procedure) Act 1999.

17. In taking those matters into account, the sentencing Judge had regard to the Form 1 offences with a view to increasing the penalty that would otherwise be appropriate for the primary offence. His Honour gave greater weight to the need for personal deterrence and the community’s entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]. This approach will generally lead to the imposition of a longer sentence than would otherwise be required if the Form 1 offences were not taken into account: Abbas v R at [23]; RL v R [2018] NSWCCA 274 at [53]-[57]. Given the seriousness of the Form 1 offences in this case, it may be taken that a longer sentence was imposed to give effect to those principles.

18. The sentencing Judge referred to the correct principles to be applied when other offences are taken into account on a Form 1: R v Zhao [2018] NSWDC 449 at [4]. Basten JA raises a question (at [3]) as to whether the sentencing Judge had regard to the conduct involved in the Form 1 matters in assessing the objective seriousness of the primary s.61L offence. I am not satisfied that this occurred in this case. In any event, this was not a ground of appeal so the parties did not have the opportunity to address this question. The ground of appeal which is to be considered is the Applicant’s contention that the sentence was manifestly excessive.

19. It was open to the sentencing Judge to find that the primary s.61L offence was in the mid-range of objective seriousness.

20. The overall criminality of the Applicant as contained in the primary s.61L offence, and the further s.61L offence and common assault offence to be taken into account on the Form 1, revealed a serious course of criminal conduct, on the part of the Applicant, directed to a victim who was in a vulnerable position. The appropriate sentencing outcome in this case required the imposition of a sentence which was longer than that which would have applied if the Applicant was sentenced solely for the primary s.61L offence.

21. This was not a s.61L offence committed by touching a victim through clothing. The Applicant used a degree of force, pushing the victim’s head into the bathroom wall (the common assault Form 1 offence) and then pulling the victim’s head down towards the Applicant’s exposed penis (the indecent assault Form 1 offence). The victim tried to pull away from the Applicant, but was unable to do so. The Applicant then placed his hand on the outside of the victim’s exposed vagina (the primary indecent assault offence). During the incident, the victim made it entirely clear that the Applicant’s attention was unwanted. All of this occurred when the victim was sitting on the lavatory having entered the bathroom for that purpose only. It was appropriate to describe the events as humiliating for the victim. This was an unusual and serious course of criminal conduct by the Applicant.

22. To the extent that the Applicant may have been affected by his consumption of alcohol, his self-induced intoxication at the time of the offence was not to be taken into account as a mitigating factor: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999.

23. It is undoubtedly the case that the Applicant had a strong subjective case on sentence. It is highly regrettable that a man with his educational and professional background found himself in a position where he was to be sentenced for this serious course of criminal conduct.

24. The Applicant received credit for his late plea of guilty. He did not give evidence at the sentencing hearing so there was no opportunity for the sentencing Judge to assess directly the Applicant’s remorse as expressed in his letter. This Court has observed that assessment of the genuineness and value of remorse is likely to be better informed in circumstances where it is expressed directly by an offender to the Court, as remorse is an intrinsically subjective matter, the evaluation of which depends on the subtleties of human interaction: Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [39].

25. Having considered the entirety of the objective and subjective circumstances and relevant sentencing principles, I am satisfied that it was open to the sentencing Judge to pass the sentence selected in this case. Undoubtedly, the sentence is a substantial one. However, this was a serious s.61L offence with associated serious offences to be taken into account on the Form 1 in the manner indicated earlier.

26. I have kept in mind the well-known principles concerning a ground of appeal asserting manifest excess, as summarised in Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221 at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

*   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

*   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

*   It is not to the point that this Court might have exercised the sentencing discretion differently.

*   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

*   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

27. It has not been demonstrated that the sentence imposed upon the Applicant was erroneous, nor that it fell so far outside the range of sentences available that there must have been error. In my view, the sentence imposed lay within the available range of sentences for offending of this type. It has not been established that the sentence imposed in the District Court was unreasonable or plainly unjust. The Applicant has not demonstrated that the sentence was manifestly excessive. I agree with Price J that the fifth ground of appeal should be rejected.

28. Accordingly, I agree with the orders proposed by Price J.

29. PRICE J: The applicant, Guanjie Zhao, seeks leave to appeal against the sentence imposed on him by Wilson SC DCJ (“the judge”) in the District Court on 12 October 2018.

30. The applicant pleaded guilty in the District Court to one count of assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 5 years imprisonment. A standard non-parole period has not been prescribed.

31. The applicant asked the judge to take into account on sentence, a further offence of assault with an act of indecency, contrary to s 61L of the Crimes Act, and an offence of common assault, contrary to s 61 of the Crimes Act, which had been placed on a Form 1.

32. A discount of 12% was allowed by the judge for the utilitarian value of the guilty plea.

33. His Honour found special circumstances being the applicant’s age and first time in imprisonment.

34. The applicant was sentenced to 26 months imprisonment consisting of a non-parole period of 17 months commencing on 12 October 2018 and expiring on 11 March 2020 with a balance of term of 9 months expiring on 11 December 2020.

Grounds of Appeal

35. The notice of appeal identifies the following grounds:

“1. The learned Sentencing Judge erred in finding the objective seriousness of the offending as in the mid-range;

2. The learned Sentencing Judge erred by not giving sufficient weight to the applicant’s remorse.

3. The learned Sentencing Judge erred by failing to properly apply a sufficient discount for the guilty plea;

4. The learned Sentencing Judge erred by failing to consider alternatives to full time imprisonment;

5. The sentence is manifestly excessive.”

The facts of the offences

36. A statement of agreed facts was placed before the judge. Those facts have been conveniently summarised in the Crown’s written submissions as follows:

“As at 18 March 2017 the applicant was aged 24 years and the complainant was aged 25 years.

In about February 2017, the complainant met Ms Karina Li and the two became friends on a Chinese social media app called WeChat. The applicant was also a friend of the complainant and they were introduced to one another via the WeChat platform. The applicant and the complainant then began to communicate with each other via this messaging app. At times, the applicant expressed an interest in taking the complainant out to dinner. The complainant politely refused his invitations.

On Saturday 18 March 2017, the complainant was invited to Ms Li's unit for a dinner party, to celebrate the end of exams. At about 4:20pm the complainant arrived at the unit. Ms Li's boyfriend, Mr Changlin Shen and roommate Ran Zhang, whom she had never met before were also there. By 5:20pm, the applicant arrived. The complainant recognised him as the male she had been communicating with on WeChat based upon his profile pictures.

During the dinner party, food was eaten and later they played a card game that involved alcohol being consumed when a person ‘lost a round’ of cards. The complainant won a number of hands and as a result did not have to consume as much alcohol as some of the others. The applicant at some stage produced two further bottles of red wine and Chivas Regal Whiskey before returning to the game.

During the night, the applicant said to the complainant, in Mandarin, ‘At last, I finally meet you, I wanted to go out with you’.

Around 9:00pm, the group decided to stop the card games and someone suggested they go out to Karaoke. At about this time, the complainant decided to use the ensuite bathroom inside Ms Li's bedroom. Once there, she removed her jumpsuit, stockings and underpants which fell to her ankles. This left the complainant naked with the exception of her bra.

The complainant sat on the toilet and began to call her mother but cancelled the call, just as the bathroom door opened. She saw the applicant enter the bathroom and immediately tried to cover her vagina area. The complainant was startled.

The complainant had not finished urinating when the accused sat on her lap. She could not stand up as the applicant was too heavy. The applicant placed his hand around the back of her and unlatched her bra. The applicant then slid his hands to the front of her body and placed his hands towards the complainant's breasts. The bra was then either fully removed or fell to the ground.

The complainant started to panic and yelled ‘No, No, No’. Once the complainant had finished urinating, she said ‘No, piss off, don't touch me’ and stood up. At this time, the applicant pushed the complainant's head into the wall (Form 1: Common Assault).

The applicant then tried to pull the complainant's head down towards the applicant's now exposed penis, which she saw was not erect. The complainant also noticed the accused was wearing red underwear (Form 1: Indecent Assault).

The complainant tried to pull away from the applicant but was unable to. The applicant placed his hand on the outside of her vagina. She noticed the touching to that area three times. (Indictment: Indecent Assault)

The complainant kept trying to push the applicant away. The applicant said, ‘why do you reject me, you are not a virgin?’ She urged the applicant, ‘why don't we just talk and be friends?’ The applicant said, ‘Why do you reject me, every time I want us to go out?’

At this stage, the complainant was then assisted by flatmate Mr Zhang whilst in the lounge room. The applicant and Mr Shen retreated to the bathroom for a brief period of time and Mr Zhang began to collect her belongings.

The complainant got up, grabbed her belongings and ran out of the unit, down the stairs, and hid behind some neighbours who had come out to enquire about the noise. The applicant followed the complainant and told the neighbours ‘she is my sister and not to worry about her’ in attempts to allow her to run upstairs.

Police were immediately contacted. The complainant made immediate disclosures to the neighbours and police about what occurred in the bathroom.

At about 9:55pm, the applicant was arrested within the unit. Police observed that the applicant's pants zipper was down and red underpants could be seen, that the applicant appeared to be intoxicated, his speech was slurred and he was unsteady on his feet.

The complainant was conveyed by ambulance to Royal Prince Alfred Hospital and examined. The complainant suffered minor redness to her knees, a lump on her head as a result of the incident, and suffered some pain as a result of the assaults.”

Subjective circumstances

37. The applicant was 24 years old when the offence was committed. He did not give evidence during the sentencing proceedings; however, the written material tendered in his case included a report from Mr Chafic Awit, a psychologist, a letter of apology, character references, a police clearance check and visa documents.

38. The applicant’s background is provided in Mr Awit’s report and the applicant’s letter of apology. In summary, the applicant was born in North East China. He was a high achieving student and completed a Bachelor of Law and Bachelor of Product Management at the University of Taiyuan Technology. He migrated to Australia in 2015 to complete a double Master’s Degree in Human Resources and International Law at Sydney University. The applicant successfully completed the Masters course in July 2018, graduating at an average mark over credit.

39. Whilst in Australia, the applicant had worked part-time as a warehouse assistant and football reporter.

40. Mr Awit reported that the applicant did not have mental health issues prior to migrating to Australia but had experienced symptoms of anxiety and depression over the last few years. Mr Awit considered that the applicant reported symptoms consistent with a diagnosis of a major depressive disorder during the period of offending.

41. The psychologist reported that the applicant had expressed shame and remorse in relation to the offences. The applicant had advised that the offences were out of character for him and believed that his “drunken stupidity” had resulted in him ruining the rest of his life. The applicant advised that he had no real excuse for the offence.

42. As to the offence Mr Awit stated:

“[The applicant] advised in the month leading up to the date of the offences he met [the complainant] through the social media application WeChat. He advised that he received an introduction to the complainant via a mutual friend Ms. Katrina Li. Mr. Zhao advised that there [were] numerous communications between him and the complainant over the month, some of which were in the early hours of the morning. He advised that over this month, he asked her out approximately twice. He advised that on the night of the offences, he was invited to Ms. Katrina Li’s residence for an end of exams dinner. He advised that the complainant was also invited. Mr. Zhao advised that over the course of the night he consumed a large quantity of alcohol (more than what he had ever drunk before). He advised that he was quite intoxicated when he entered the bathroom to urinate (prior to preparing to leave with the others to go to Karaoke). He advised that when he entered the bathroom, he found the complainant semi naked and had felt when she had her hand down in the area of her vagina that she had been masturbating. He advised in his drunken state, he misread the situation and this resulted in the offences that took place. He indicated that in relation to common assault charge that he didn’t intent [sic] any harm.”

43. Mr Awit opined that there was a psychological nexus between the applicant’s condition and the offence. Given the applicant’s advice that he had been suffering anxiety and depression over the last few years due to the adjustment of being in a foreign country, having limited friends in Australia and limited prior experience with psychological conditions prior to the offending, it was Mr Awit’s opinion that the applicant’s coping skills had been inhibited. Furthermore, it was his opinion that the applicant’s reduced ability to weigh the consequences of his actions on the night of the offence was due both to the applicant’s ongoing underlying symptoms and his level of intoxication. The psychologist considered that there was a low risk of the applicant re-offending.

44. In a letter addressed to the judge, the applicant expressed his “sincere remorse and self-disappointment” for his actions. He apologised for his behaviour, attitude and actions. He wrote:

“Although I was very affected by alcohol, there is no excuse for my actions and behaviour, and I take full responsibility for my actions and the repercussions that may raise [sic] for what I have done.”

45. The applicant informed the judge that his hopes had been to get a job in government or to be a lawyer but realised his years of effort had gone to waste through his “foolish criminal actions”.

46. The applicant has no prior criminal history in Australia or China.

The Police Notebook

47. An extract from the Police Notebook which included the applicant’s answers given to police at the scene was tendered in the applicant’s case:

“Q: What happened?

A: She was naked in the toilet, I just wanted to go to the toilet and she was in the toilet with no clothes on.

Q: Did you touch her?

A: No, I just grabbed her because she was drunk.

Q: Did you kiss her.

A: No.

Q: What was she doing in the toilet?

A: She had her hands down the front.

Q: Do you mean she was pleasuring herself?

A: Yeah, pleasuring herself with her hand.

Q: Did you touch her Clothes or Bra?

A: No.”

The Victim Impact Statement

48. In the Victim Impact Statement tendered by the Crown, the complainant stated that because of what happened she was hurt, has difficulty trusting and socialising with others, is scared of men and feels as though she is unable to have a normal relationship with a man. The complainant further stated that she is not comfortable in public places, fears for her safety and is scared when she is alone and at night.

Some findings of the judge

49. In determining the objective seriousness of the offending, his Honour accepted the Crown’s submission “that the objective seriousness of the offence is not downgraded purely due to the short nature of time in which the indecent assault took place”. [1] His Honour also accepted the Crown’s submission that “the complainant was humiliated and this was a relevant factor as considered by the CCA in Daley”. [2]

    1. R v Zhao [2018] NSWDC 449 at [51].

    2. R v Zhao [2018] NSWDC 449 at [51] referring to R v Daley [2010] NSWCCA 223.

50. The judge referred to the submissions made by Mr Ramage QC for the applicant which included that he misread the complainant’s actions in the bathroom, thinking that she was masturbating and that due to the short period of time in which the indecent assault occurred and the minimal degree of violence or physical hurt inflicted, the objective seriousness fell in the low range. His Honour rejected that submission.

51. His Honour observed that there was no mention in the agreed facts of the applicant being under any misapprehension as to the state of mind or intention of the complainant, His Honour found that the complainant was “in every sense a victim of [the applicant’s] offending”. [3]

    3. R v Zhao [2018] NSWDC 449 at [53].

52. The judge noted that the applicant had not given evidence “at which time he could have provided some further insight into his impression of the complainant’s state of mind but chose not to do so”. [4]

    4. R v Zhao [2018] NSWDC 449 at [54].

53. His Honour went on to recount Mr Ramage’s acceptance of the complainant being in a vulnerable circumstance as she only had her bra on and to his description of the toilet being smaller than the standard cubical which was said by Mr Ramage to be relevant as “whatever vulnerability [the complainant] faced it was initially because she placed herself in that situation”. [5]

    5. R v Zhao [2018] NSWDC 449 at [58].

54. The judge rejected “the suggestion that the complainant contributed to the objective seriousness of the offence in any way” and said that “the fact that there was a pre-existing connection between [the applicant] and the complainant, albeit through social media and not having met, does not mitigate the criminality”. [6]

    6. R v Zhao [2018] NSWDC 449 at [60]-[61].

55. The judge said that the submissions made by the applicant’s Queen’s Counsel were completely out of touch with community expectations and standards. His Honour rejected those submissions and said:

“…I will sentence [the applicant] by reference to the objective seriousness as established by the agreed facts. The circumstances which exist here in my view demonstrate the objective seriousness falls well and truly in the mid-range. The suggestion that it is in the low range is untenable.”[7]

7. R v Zhao [2018] NSWDC 449 at [62].

56. The judge rejected the Crown’s submission that a relevant aggravating feature was the content of the Victim Impact Statement.

57. His Honour referred to the Crown’s submission that the victim was vulnerable by being physically indisposed at the time of the offences and was still in the process of urinating when the applicant sat on her lap. The judge said:

“The fact that she was in a vulnerable position of course is to be distinguished from the complainant being a vulnerable person. Queen’s Counsel for [the applicant] accepted that she was in a vulnerable position being in a confined space, however, she does not fall into the category of a vulnerable person such as a taxi driver or a storekeeper. Nevertheless, whilst there was vulnerability which pervaded the offending I do not regard that as an independent or aggravating factor.”[8]

8. R v Zhao [2018] NSWDC 449 at [68].

58. The judge said that the mitigating factors “that exist here” and were relevant to the sentencing exercise included that the applicant was a person of good character, did not have a record of previous convictions, had good prospects of rehabilitating, shown remorse and pleaded guilty, “albeit quite late”.

59. In assessing the applicant’s subjective case, the judge referred in detail to Mr Awit’s report, the applicant’s character references and to the applicant’s letter of apology. His Honour noted that the applicant acknowledged that as a result of the conviction he would no longer be able to plan a career in law or in government, which Mr Ramage had described as extra-curial punishment. His Honour said that he had regard to the effect of the conviction and sentence on the applicant in determining the appropriate sentence. His Honour also had regard to the applicant being a foreign national.

60. The judge noted Mr Awit’s opinion that there was a psychological nexus between the applicant’s anxiety and depression and the offence. As Mr Awit was a psychologist, his Honour said that he approached Mr Awit’s diagnoses with great circumspection. Whilst he took the psychologist’s psychiatric diagnoses into account, his Honour was not satisfied that it provided any basis or reason for the offending.

61. His Honour found that the applicant was a person of good character prior to the offence which was a mitigating factor.

62. When referring to remorse as a matter of mitigation, the judge said that there was evidence of remorse in the guilty plea as well as the letter of apology. The judge observed that “[the applicant] did not give evidence at the sentencing hearing which affects the weight that the Court can give to his expression of remorse”. [9]

    9. R v Zhao [2018] NSWDC 449 at [101].

63. His Honour took into account that the applicant may be subject to deportation at the conclusion of his incarceration and that he was a foreign national which may make the applicant’s time in custody more onerous.

64. The judge found that the applicant’s prospects of rehabilitation were strong and the likelihood of re-offending was low.

65. Having discussed the principle of proportionality, the judge said:

“I must be satisfied, having considered all possible alternatives, that no sentence (including non-custodial sentences) other than imprisonment is appropriate.”[10]

10. R v Zhao [2018] NSWDC 449 at [116]

66. His Honour then considered the competing submissions as to whether the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) had been met and that a term of imprisonment was warranted. His Honour found that no sentence other than full-time imprisonment was appropriate.

67. After allowing a 12% discount for the guilty plea and finding special circumstances, the judge sentenced the applicant to 26 months imprisonment with a non-parole period of 17 months (see [34] above).

Ground 1: The learned sentencing judge erred in finding the objective seriousness of the offending as in the mid-range

68. The applicant contended that despite rejecting the aggravating factors submitted by the Crown and finding a number of mitigating factors, the judge erred by referring to “sexual assault” when the offence was “indecent assault” and by finding humiliation over and above that which is inherent in indecent assault.

69. In written submissions the applicant pointed out that “sexual assault” is defined in s 61I of the Crimes Act to mean “sexual intercourse” which carries a maximum penalty of 14 years imprisonment, whereas the maximum penalty for indecent assault is 5 years imprisonment. His Honour’s failure to differentiate between the offences was submitted to be reinforced by his reference to Daley which concerned an offence of sexual intercourse without consent.

70. As to the issue of humiliation, the applicant referred to the exchange between his Queen’s Counsel and the judge which included a submission that the applicant did not purposely follow the complainant into the en suite bathroom, that it was unlocked, and he freely opened the door as he wanted to use the lavatory. Further reference was made to the extract of the Police Notebook (see [47] above) and that the applicant thought that the complainant was “pleasuring herself”.

71. The applicant’s written submissions included that as the Police Notebook was admitted without objection, the applicant had satisfied the burden on the balance of probabilities that he mistakenly thought, when he opened the bathroom door and saw that the complainant was in the nude other than wearing a bra, with her hand down her front, that the complainant was “pleasuring herself with her hand”. The applicant contended that the judge erred in finding humiliation over and above what is inherent in being indecently assaulted and erred in his assessment of the objective seriousness of the offending.

72. Mr Lloyd QC, the applicant’s counsel in this Court, confined his oral submissions to this ground and to ground 4. Mr Lloyd said that if this Court was against him “on objective seriousness… the other grounds fall away”. His argument was that the judge erred in finding humiliation over and above what is inherent in an offence of indecent assault as there was no suggestion that the applicant followed the complainant into the bathroom.

73. The Crown submitted that the judge did not make a finding that the complainant’s humiliation was over and above that which is inherent in being indecently assaulted. The judge’s finding was confined to the complainant being humiliated, which the Crown argued was well open to the judge. A further submission was that it was open to the judge to reject the applicant’s account in the Police Notebook as it was untested, self-serving, contrary to the agreed facts, plainly untruthful in significant respects and had not been established on the balance of probabilities.

74. The Crown contended that the judge’s assessment of objective seriousness as falling within the mid-range was clearly open solely on the basis of the offending disclosed within the agreed facts.

Consideration

75. In assessing the objective seriousness of the offence, the judge determined that the offence was “well and truly in the mid-range”. His Honour rejected the applicant’s assertion that the offence was “in the low range”.

76. The applicant’s complaint that the judge erred in his assessment of the objective seriousness focussed on the references to “sexual assault” in the sentencing judgment, the rejection of the applicant’s account in the Police Notebook and an asserted finding of humiliation above what is inherent in indecent assault.

77. It is true that the judge referred in his sentencing judgment to decisions of this Court such as R v MJR; [11] R v Hibberd; [12] and R v Daley,[13] which concerned offences of sexual intercourse without consent and used the phrase “sexual assault”. However, it is clear from a fair reading of all of what was said that his Honour was well aware that the applicant was being sentenced for an offence contrary to s 61L of the Crimes Act and spoke in such a way to convey the change of community attitude towards sexual offences.

    11. (2002) 54 NSWLR 368; [2002] NSWCCA 129.

    12. [2009] NSWCCA 20; (2009) 194 A Crim R 1.

    13. [2010] NSWCCA 223.

75. His Honour was not obliged to accept the applicant’s account in the Police Notebook, even though it was admitted without objection. This Court has emphasised on many occasions that untested statements made to third parties should be treated with considerable circumspection. [14]

    14. Lewin v R [2017] NSWCCA 65 at [26]; Imbornone v R [2017] NSWCCA 144 at [57].

76. The applicant’s account was not only unsupported by sworn evidence but contained inconsistencies with the agreed facts. The applicant’s statement that he did not touch the complainant’s clothes or bra was inconsistent with the agreed fact that he unlatched her bra. Furthermore, his claim that he had not touched the complainant, save that he “grabbed her because she was drunk” (see [47] above) was inconsistent with the agreed facts of removing the bra, pushing the complainant’s head into the wall, trying to pull her head down to his exposed penis, placing his hand on the outside of her vagina and the touching of that area three times.

77. The applicant’s assertion that the judge made a finding of humiliation above what is inherent in the indecent assault is misplaced. The sole reference to humiliation in the sentencing judgment is found at [51]:

“The Crown also submitted that in both offences the complainant was humiliated and this was a relevant factor as considered by the CCA in Daley previously referred to. I also accept that submission.”

81. His Honour was entitled to take into account the complainant’s humiliation in assessing the objective seriousness of the offence. However, no finding was made that the complainant’s humiliation was above that which is inherent in an offence of indecent assault.

82. It is well established that the assessment of objective seriousness of an offence is essentially one of fact and is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499 at 505.[15]

    15. Mulato v R [2006] NSWCCA 282 at [37]; Aktar v R [2015] NSWCCA 123; (2015) 251 A Crim R 376 at [74]-[76].

83. The offences of indecent assault and common assault on the Form 1 are not relevant to the assessment of the objective seriousness of the principal offence. The offences on the Form 1 may be taken into account on sentence by greater weight being given to personal deterrence and retribution. [16]

    16. Cummins v R [2019] NSWCCA 163 at [44]; 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; RL v R [2018] NSWCCA 274.

84. A conclusion that the principal offence was “well and truly in the mid-range” was open to the judge for the following reasons:

1. The offending commenced when the applicant entered the bathroom and sat on the complainant’s lap whilst she was urinating so that she could not stand. He unlatched her bra whilst she was in that position, slid his hands to the front of her body and placed his hands towards her breasts.

2. After the complainant finished urinating, she told the applicant to “piss off” and not to touch her. Notwithstanding those protestations, the applicant did not desist but continued.

3. When the complainant stood up, she tried to pull away from the applicant, but was unable to do so.

4. The applicant placed his hand on the outside of the complainant’s vagina and touched that area three times.

85. The nature and degree of the physical contact involved in the offence, the degree of force and the circumstances of humiliation are all relevant considerations in assessing the objective seriousness of an offence of indecent assault.

86. This Court has observed that indecent assault covers a broad range of touching but where touching involves direct contact with the skin as opposed to contact through clothing, that renders the assault more serious. Moreover, where the touching involves the genital region, the objective seriousness of the offending is increased. [17]

    17. Kearsley v R [2017] NSWCCA 28; (2017) 265 A Crim R 233 at [86]; Bray v R [2018] NSWCCA 301 at [32].

87. The applicant’s offending included removing the complainant’s bra leaving her completely naked, using force and ignoring her protestations, placing his hand on the outside of her vagina and touching that area three times. In my opinion the short duration of the offending does not reduce its objective seriousness. [18]

    18. R v Daley [2010] NSWCCA 223.

88. It is difficult to envisage a more humiliating and confronting situation.

89. No error has been established. I would reject this ground of appeal.

90. Mr Lloyd informed this Court that if the applicant was unsuccessful on this ground the other grounds of appeal fell away. Accordingly, the remaining grounds of appeal may be dealt with some brevity.

Ground 2: The learned sentencing judge erred by not giving sufficient weight to the applicant’s remorse

91. The applicant referred to Mr Ramage’s submissions to the judge on remorse which included the submission that “the Court can have no doubt that this young man is highly remorseful”. The applicant complained that the judge did not raise with Mr Ramage the weight that he intended to attribute to remorse.

92. It was submitted if the judge felt that the weight that would be attributed to remorse would be affected as to whether or not the applicant gave oral evidence, then the judge should have raised this with Mr Ramage so as to allow him either to address the Court or to obtain the applicant’s instructions as to his giving oral evidence. The applicant contended that by failing to raise this issue, there was a denial of procedural fairness.

93. The applicant further submitted that the judge erred by giving insufficient weight to the applicant’s remorse.

94. The Crown pointed out that the applicant was required to establish House error which did not appear to be the applicant’s contention. The Crown referred, in any event, to the many times that the judge referred to the applicant’s remorse in his sentencing remarks and argued that it is clear that the judge took into account the applicant’s remorse in a favourable way.

95. The Crown put to this Court that there were several contradictions of genuine remorse which included his account in the Police Notebook.

96. The Crown submitted there was no denial of procedural fairness. The applicant had elected not to give evidence and it is well established that in such circumstances a judge is entitled to give little or no weight to statements of remorse made otherwise on oath.

Consideration

97. There is no merit in this ground of appeal. The weight to be given to remorse is quintessentially a matter for the sentencing judge. When his Honour observed that the applicant did not give evidence which affected the weight to be given to remorse, his Honour was expressing the well-known principle that judges should exercise considerable caution when untested out-of-court statements of remorse are made to third parties and no evidence is given by an offender. [19]

    19. Anae v R [2018] NSWCCA 73 at [66]; Imbornone v R [2017] NSWCCA 144 at [57].

98. The judge did not deny procedural fairness to the applicant in not raising with his Queen’s Counsel that the weight to be attributed to remorse would be affected by whether or not the applicant gave evidence. The requirements of procedural fairness do not oblige a sentencing judge to bring to the attention of lawyers, sentencing principles that lawyers should know.

99. I would reject this ground of appeal.

Ground 3: The learned sentencing judge erred by failing to properly apply a sufficient discount for the guilty plea

100. The applicant complained that the judge did not take into account the history of the proceedings in determining the discount for the plea of guilty. The applicant pointed out that he was committed to stand trial for five charges, the two most serious being for “sexual assault”. Negotiations had taken place on the first day these matters were listed for trial and the fresh indictment together with the Form 1 offences was presented. The applicant submitted that he should have received a 15% discount, noting that the plea had saved the complainant from cross-examination, a trial lasting seven days and was an expression of remorse.

101. The Crown submitted that given the very late plea of guilty, a discount of 10% for the utilitarian value of the plea would have been within the judge’s sentencing discretion and a discount of 12% bordered on the generous. The plea was entered four days after the trial was meant to commence, being 1 year and 4 months after the date the applicant was arrested. Whilst the judge did not recount the procedural history of the proceedings, the Crown contended that it was apparent from the judge’s reasons that he gave careful consideration to the issue of the discount. It was well open to his Honour to regard the plea as being “at a late stage”.

Consideration

102. It was open to the judge to find that the applicant’s plea of guilty was entered at a “late stage”. Plea negotiations commenced on 6 August 2018 being the first day of the applicant’s trial and the guilty plea was entered on 9 August 2018.

103. The primary consideration for the assessment of the discount for the utilitarian value of the plea in the range of 10-25% is the timing of the plea. Contrary to the applicant’s submissions, the utilitarian discount does not reflect the saving of the complainant from giving evidence and the utilitarian value of a plea is usually diminished by being delayed by plea negotiations. [20]

     20. R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32].

104. It was within his Honour’s sentencing discretion to reject the applicant’s submission that the discount should be 15% and assess the discount at 12%.

105. I would reject this ground of appeal.

Ground 4: The learned sentencing judge erred by failing to consider alternatives to full time imprisonment

106. In oral argument in this Court, Mr Lloyd referred to the inconsistency in the applicant’s written submissions which quoted from the judge’s sentencing remarks where his Honour specifically referred to his consideration of “all possible alternatives” to imprisonment. Mr Lloyd said that he would “only press [that] ground if your honours find for the applicant on the ground of error in the assessment of objective seriousness”.

Consideration

107. It is unnecessary to consider this ground other than to state it was misconceived from the outset.

108. His Honour expressly stated that he must be satisfied, having considered all possible alternatives, that no sentence other than imprisonment was appropriate (see [65] above). His Honour then went on to consider whether the threshold under s 5 of the Crimes (Sentencing Procedure) Act was met. Section 5 provides:

5   Penalties of imprisonment

(1)  A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

….

109. I would reject this ground of appeal.

Ground 5: The sentence is manifestly excessive

110. In written submissions, the applicant referred to an intensive correction order being the appropriate sentence and the present sentence being just over the limit prescribed under s 68(1) of the Crimes (Sentencing Procedure) Act by two months.

111. In oral submissions, Mr Lloyd accepted that the threshold under s 5 of the Crimes (Sentencing Procedure) Act had been met but argued that if this Court was to find the objective seriousness of the offence was below mid-range, the Court might consider that an intensive correction order was appropriate.

Consideration

112. As I have not found error, the issue is whether the sentence imposed by the judge is manifestly excessive.

113. This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [21] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [22] It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [23]

     21. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

     22. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].

     23. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

114. This is a serious offence. His Honour did not err in his assessment of objective seriousness. Notwithstanding the applicant’s strong subjective case and relative youth, the sentence imposed was within the legitimate exercise of his Honour’s sentencing discretion. I am not persuaded that the sentence is manifestly excessive. I would reject this ground of appeal.

Orders

115. The orders that I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

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Endnotes

Decision last updated: 26 August 2019