DPP v Zhao (Unreported, County Court of Victoria, Judge Pullen, 10 November 2017)
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CRIMINAL LAW – Appeal – Sentence – Appellant sentenced to 13 years and six months’ imprisonment with a non-parole period of eight years on five charges of rape and one of sexual assault – Whether sentence manifestly excessive – Whether sentencing judge properly balanced s 6E of the Sentencing Act 1991 against principle of totality and ‘one episode’ rule – New evidence – Whether certainty, as distinct from likelihood that appellant would be deported at the expiration of his sentence, made his incarceration more burdensome than sentencing judge appreciated – Appeal allowed – Sentence reduced to nine years and six months’ imprisonment with non-parole period of six years and six months.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr O P Holdenson QC
Tony Hargreaves & Partners Lawyers
For the Crown
Mr B Sonnet
Mr J Cain, Solicitor for Public Prosecutions
McLEISH NIALL WEINBERG JJA:
After a trial in the County Court in September 2017, the appellant, now aged 27, was convicted of five charges of rape, and one charge of sexual assault. The convictions related to offending that took place on two separate occasions, the first on 31 October 2015 (charge 2) and the second on 22 November 2015 (charges 3 to 7). On both of those occasions, the victim was the same young woman, NL.
The appellant was sentenced as follows:[1]
[1]The appellant was acquitted on charge 1, which was a charge of sexual assault.
Other relevant orders: forensic sample pursuant to s.464ZF, disposal order, declaration pursuant to s6F of the Sentencing Act 1991 that appellant was sentenced as a serious sexual offender on charges 4, 5, 6 and 7.
The appellant initially sought leave to appeal on one ground only:
Ground 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…
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.
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AGLC
Zhao v The Queen [2018] VSCA 267
Case
[2018] VSCA 267
Decision Date
CaseChat Overview and Summary
In the case of Zhao v The Queen, the appellant was convicted and sentenced to 13 years and six months’ imprisonment with a non-parole period of eight years, on charges that included five counts of rape and one of sexual assault. The appellant appealed the sentence, arguing it was manifestly excessive. The appeal was heard in the High Court of Australia.
The primary legal issues before the court were whether the sentencing judge had appropriately balanced the considerations under section 6E of the Sentencing Act 1991 against the principle of totality and the 'one episode' rule. Additionally, the court considered whether new evidence regarding the likelihood of the appellant being deported upon the completion of his sentence altered the severity of his incarceration. The appellant submitted that the certainty of deportation, as opposed to the mere likelihood, made his incarceration more burdensome than the sentencing judge had appreciated.
The High Court determined that the sentence was indeed manifestly excessive. The court found that the sentencing judge had not adequately balanced the principle of totality with section 6E of the Act. Furthermore, the court recognised that the certainty of deportation, which was a new factor, made the appellant’s incarceration more burdensome than originally considered. The court reduced the sentence to nine years and six months’ imprisonment with a non-parole period of six years and six months, allowing the appeal and ordering the amendment of the sentence.