Zhao v The Queen

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.