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Court of Criminal Appeal 26 August 2019

Zhao v R

[2019] NSWCCA 203

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE INDECENT ASSAULT RANGE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: [2019] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 26 August 2019
Judges: Basten JA; Johnson J; Price J

Background

The applicant, a postgraduate student from China, was convicted of indecent assault under s 61L of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of five years' imprisonment. Two further offences (a second indecent assault and a common assault) were taken into account on a Form 1, meaning the sentencing judge considered them when determining the appropriate penalty for the primary offence without imposing separate sentences. The sentencing judge in the District Court assessed the objective seriousness of the primary offence as falling in the mid-range and imposed a sentence of 2 years 2 months' imprisonment with a non-parole period of 17 months.

The applicant sought leave to appeal against sentence on five grounds. He argued that the sentencing judge erred in finding mid-range objective seriousness, failed to give sufficient weight to his remorse, applied an insufficient discount for his guilty plea, failed to consider alternatives to full-time imprisonment, and ultimately imposed a manifestly excessive sentence.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offending as falling in the mid-range
  • Whether the sentencing judge gave insufficient weight to the applicant's remorse
  • Whether the guilty plea discount was inadequate
  • Whether the sentencing judge was required to consider non-custodial alternatives
  • Whether the sentence was, overall, manifestly excessive

Decision

The Court unanimously rejected the first four specific grounds of appeal, accepting the reasoning of Price J on each. The sentencing judge was found to have correctly assessed objective seriousness, appropriately qualified the weight given to remorse given the applicant's lack of candour with police and the delay in entering his plea, applied the correct discount for the guilty plea, and was not required in the circumstances to impose a non-custodial sentence.

The fifth ground, manifest excess, divided the Court. Basten JA concluded that the starting point of 2 years 6 months was manifestly excessive in light of the applicant's entirely favourable subjective case: no prior convictions, good character, youth, and significant long-term consequences including the likely end of his postgraduate studies and career prospects in Australia. His Honour also noted that expressions of frustration by the sentencing judge at defence counsel's submissions (which had inappropriately suggested the complainant bore some responsibility for the offending) created a risk that the strength of the subjective case had been overshadowed, even if that could not be confirmed. Basten JA proposed resentencing to 1 year 9 months with a non-parole period of 14 months.

Price J, by contrast, found the sentence was within the legitimate range of the sentencing judge's discretion. His Honour emphasised the serious nature of the offending, the Form 1 offences warranting a longer sentence, and the latitude that appellate courts must afford sentencing judges. Johnson J agreed with Price J that the sentence was not manifestly excessive.

The majority (Johnson J and Price J) dismissed the appeal. The sentence originally imposed therefore stood.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A 2-1 majority of the Court of Criminal Appeal held that a sentence of 2 years 2 months for indecent assault, with two related offences on a Form 1, was not manifestly excessive despite the offender's strong subjective case and lack of prior convictions.
  • Where Form 1 offences are taken into account at sentencing, the effect is generally to increase the penalty beyond what would otherwise be imposed for the primary offence alone, reflecting principles of personal deterrence and retribution.
  • Remorse expressed only through a letter of apology, without sworn evidence explaining an initial lack of candour with police or a delayed guilty plea, may properly receive reduced weight at sentencing.
  • Basten JA's dissent serves as a reminder that a sentencing judge's expressed frustration with defence submissions, while entirely justified in rejecting improper victim-blaming arguments, should not obscure independent assessment of the offender's subjective circumstances.
  • Appellate courts afford sentencing judges significant latitude in fixing a sentence within the permissible range; the majority reaffirmed that sentencing is not a mathematical exercise, and intervention requires more than a difference of view about the appropriate result.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 33, 68

Cases
- Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Aktar v R [2015] NSWCCA 123; (2015) 251 A Crim R 376
- 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
- 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