Zhou v The Queen - [2014] VSCA 123

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0207
QI ZHOU	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and BEACH JJA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2014
DATE OF JUDGMENT:	20 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 123
JUDGMENT APPEALED FROM:	R v Zhou (Unreported, Judge Sexton, 1 October 2013)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Conspiracy to dishonestly influence a Commonwealth public official – Having custody and control of material designed for making a false document – Serious offending – Delay – Exceptional hardship – Whether sentence manifestly excessive – Sentence and orders not manifestly excessive – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Theo Magazis & Associates
For the Respondent	Mr D J Lane	Solicitor for the Commonwealth Director of Public Prosecutions

NETTLE JA
BEACH JA
ALMOND AJA:

Introduction

On 8 November 2012, the applicant pleaded guilty to two charges: one of conspiracy to dishonestly influence a Commonwealth public official, contrary to sub-s 135.4(7) of the Criminal Code (Cth); and the other of having custody and control of material designed for making a false document contrary to sub-s 83A(5A) of the Crimes Act 1958 (Vic). A plea was heard on 26 and 28 August 2013. On 1 October 2013, Judge Sexton sentenced the applicant to 4 years’ imprisonment on the Commonwealth charge and 10 months’ imprisonment on the State charge. The sentence on the State charge was ordered to start on 1 October 2013, and the sentence on the Commonwealth charge was ordered to start seven months after the commencement of the State sentence. In addition, the judge ordered the applicant to be released after serving 2 years’ imprisonment upon giving security of $1,000 to be of good behaviour for the balance of the Commonwealth sentence. This made a total effective sentence of 4 years and 7 months’ imprisonment with release on recognizance after serving a total of 2 years’ imprisonment, the recognizance period being 2 years and 7 months.

The applicant seeks leave to appeal against the sentence he received. The proposed grounds are:

1 The sentencing judge erred by:
(a)finding, and proceeding to sentence on the basis, that the ‘overall period of delay’ in the Applicant’s proceeding was not ‘extraordinary and inordinate’; and
(b)failing properly or at all to reflect in the sentences she imposed:
(i)the (almost) five-year delay between the Applicant’s first interview with police and his sentence; and

(ii) the Applicant’s co-operation with police.

2The sentencing judge erred by failing properly or at all to reflect in the sentences she imposed:
(a)the ‘exceptional hardship’ experienced by his elderly and ill mother; and
(b)the additional hardship of the Applicant’s incarceration as a result of his elderly mother’s ill health and his inability to care for her.

3In all the circumstances:
(a)the individual sentence imposed on Charge 1;
(b)the total effective sentence; and
(c)the minimum term fixed
are manifestly excessive.

4The sentencing discretion…

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 Zhou v The Queen

Details

AGLC: Zhou v The Queen [2014] VSCA 123
Case: [2014] VSCA 123
Decision Date: 20 June 2014

CaseChat Overview and Summary

Zhou lodged an application for leave to appeal against his sentence in relation to his involvement in a conspiracy to dishonestly influence a Commonwealth public official and having custody and control of material designed for making a false document. The application was heard in the High Court of Australia. The primary legal issue before the court was whether the sentence imposed was manifestly excessive, considering the nature of the offence and the circumstances of the case, including any delay and hardship experienced by the applicant.

The court considered the principles governing the assessment of whether a sentence is manifestly excessive. It examined the severity of the offence, the degree of the applicant's culpability, and the impact of any delay in the proceedings. The court also took into account the exceptional hardship claimed by the applicant. After a thorough analysis, the court found that the sentence and orders imposed were not manifestly excessive. The court was satisfied that the sentence reflected the seriousness of the offences and the need for general deterrence, while also considering the applicant's personal circumstances.

Consequently, the court dismissed the application for leave to appeal against sentence. The reasoning of the court underscored the importance of maintaining appropriate judicial scrutiny over the severity of sentences while also recognising the necessity of upholding the principle that such decisions are primarily the domain of the sentencing court. The court's decision reaffirmed the high threshold required for an appeal on the basis of manifest excessiveness and highlighted the significant role of the original sentencing court in balancing various factors in determining an appropriate penalty.

Orders