DPP v Zhao [2017] VCC 1708

3 The first offending was charged between 1 October 2015 and 1 November 2015, however, the evidence put this incident on 31 October 2015 or very close to that date. The second incident occurred on 22 November 2015.

4 The jury accepted Ms Li's evidence in relation to your offending, which in brief was as follows.

5 Relevant to the first occasion, she gave evidence she was having coffee at a café and "chatting" with you on WeChat. You then picked her up in the car and drove her to your apartment in Hawthorn. You asked her to go to the apartment to help you "to tidy up". She gave evidence she initially rejected you but when you said you would not do anything to her, that it was just to tidy your apartment and 'with no bad intentions', she agreed.

6 She described that at the apartment you cooked some food and both of you watched television. Whilst watching television, you made her perform oral sex on you so that you could ejaculate, and you ejaculated into her mouth.

7 Ms Li gave evidence she did not consent to that oral penetration. She gave evidence that to comply was better than having sexual intercourse (penile to vaginal), in essence she did not freely agree to that penetration.

8 She gave evidence she just wanted to get out of your apartment as soon as possible and so she 'assisted' you in that regard. After you ejaculated into her mouth you apologised to her. The jury, by their verdict, accepted that Ms Li was not consenting and that you did not have a reasonable belief that she was consenting to that oral penetration.

9 The next incident occurred on 22 November 2015. In brief, that morning you had said you wanted to go to her place and give her something. You also asked for her to be a part of a business promotion. You took photographs of some flowers you had left at her house after she requested you leave them outside her front door. Ms Li gave evidence she did not want to go to the door to see you on that occasion.

10 Later that evening you arranged to meet she and her friend at a restaurant in Chinatown at approximately 10.30pm. Ms Li and her friend were picked up in your car by you and her friend was dropped off first. You then said you wanted to talk to Ms Li and drove her to your apartment.

11 Ms Li described arguments over approximately an hour in the apartment before you both left. She gave evidence there were arguments because she would not be your girlfriend. After you both left together (the first time) she asked you to drive her to her friend, Ricky's,[2] place in Little Collins Street. She gave evidence that you both also argued in the car. You suddenly turned your car around and drove back towards your apartment. She asked you to stop the car but you did not.

12 At the apartment in the car park underneath your building, you physically pulled Ms Li out of the car, and pulled her into your apartment. She said you both struggled before entering the apartment.

13 In the apartment, you pushed Ms Li onto your bed and tried to take her clothes off. At the same time, you were touching her. In that scenario you reached into her clothes and touched her breast (Charge 3). You then put your fingers into her vagina (Charge 4). She kept saying "no" and was screaming. She gave evidence she slapped you, you slapped her back, she bit your shoulder and you hit her again. She described that she struggled and screamed and that you put a pillow on her face. She said she did not agree to you putting your fingers into her vagina. She said you gave her two choices, either she took her clothes off, or you would. She felt she did not have any option.

14 At one stage you used your phone, she believed, to take photographs of her and she tried to grab the phone. You then put her onto the bed and put your penis into her vagina (Charge 5). Ms Li kept pushing and rejecting you. You then had her perform oral sex on you (Charge 6), then again penetrated her vagina with your penis (Charge 7).

15 The first time you put your penis into her vagina (Charge 5) she said you did not use a condom and that is an aggravating feature of that charge (see R v Khem)[3]. The second time (Charge 7) you did use a condom after she asked you to. She said she never agreed to any of the penetrations.

16 She gave evidence that when you went into the bathroom to go to the toilet, she quickly put on her bra and underwear and ran to the next door neighbour's apartment. She knocked on the neighbour's door asking for help. Evidence from the neighbour was before the jury. Police were then called and arrived shortly thereafter.

17 By their verdicts, the jury found the prosecution had proven the acts, the subjects of the charges. The jury accepted the prosecution had proven those charges beyond reasonable doubt.

18 As you pleaded not guilty to those charges, I do not find you are remorseful for your offending.

19 The victim of your offending has suffered considerably and I shall return to pass remarks on that subject shortly.

20 I have previously referred to the aggravating feature of your offending relevant to Charge 5 when you did not use a condom. I do note upon Ms Li's request however you did use a condom relevant to Charge 7. Another aggravating feature of your offending involved the violence described by Ms Li over and above that required to commit the offences, and of your attempts to detain her at your apartment on the second occasion. A further aggravating feature is ejaculation into her mouth (referrable to Charge 2).

21 You do not have any prior court appearances. You therefore come to the Court as a person of previous good character.

22 Your counsel, Mr Hannebery, provided a written outline of submissions for your plea hearing, and addressed those during the course of the plea. Mr Hannebery conceded that by the jury verdicts they were satisfied beyond reasonable doubt you committed the acts specified in the respective charges, for which you were ultimately found guilty, that is whilst not having a reasonable belief that Ms Li was consenting, that the jury rejected your contrary contentions.

23 It was accepted by Mr Hannebery that in reaching the verdicts the jury must have largely accepted the account of the two incidents as related by Ms Li.

24 Turning to the offending itself, Mr Hannebery conceded that the offence of rape was a serious offence. It is. He also conceded general deterrence and punishment were important sentencing considerations. He submitted the degree of your culpability attaching to any individual rape charge depended on the particular circumstances in which it occurred.

25 In this case, when determining the relative seriousness of the offence, he submitted I would note that your offending occurred on two separate incidents, and I do note that, and involved different types of penetration, of which I am also aware. He urged, however, that your offending was not designed to humiliate. He appropriately conceded the second incident occurred over an extended period of time, and ceased only due to the "escape" of Ms Li. He also correctly conceded that the second incident involved additional violence over and above that involved in the charged acts, although he submitted, not at a high level or involving the use of weapons or resulting in serious physical injuries to her. I am aware of the latter.

26 Mr Hannebery also conceded that the offences involved you taking advantage of the trust Ms Li placed in you when she permitted you to be in her exclusive company.

27 There were, as Mr Hannebery conceded, a number of concerning features of your offending. He is correct.

28 I was given details of your background and history. You are now 26 years of age and were born in China. You are the only child of your parents. You were educated in China to the equivalent of Year 11, and first came to Australia when you were 17 in 2007.

29 At that time you studied at the Peninsula School and then studied a portion of an Australian Year 11 standard.

30 You returned to China after a year, but then returned to Australia when you were 19. You studied at Monash University and completed a Bachelor in Banking and Finance.

31 At the time of your remand you had at that stage completed one semester of a Master's Degree course at the Holmes Institute, also in Banking and Finance.

32 Your parents live in China, but I note your mother was in Court to support you during your plea hearing. This is your mother's first time to visit to Australia. You also have two grandparents in China. You do not have any family in Australia.

33 Prior to your incarceration you had been on a student visa, and your intention was to obtain permanent residency. As a result of this offending you are now on a bridging visa, with the expectation that once you complete your sentence you will be deported to China.

34 Mr Hannebery submitted it was highly likely you would be deported to China because of your current visa status, and that as a result of it any intention you had of becoming a permanent resident had in essence evaporated as a result of your offending.

35 Mr Hannebery submitted there was limited mitigation regarding your likely deportation, in particular given you did not have family here, which he submitted distinguished you from others who did have established families and relationships in Australia. He relied upon your "thwarted ambition of becoming a permanent resident of Australia".

36 I am mindful of the decisions relevant to deportation and that given your visa status (although still ultimately to be determined), you are likely to be deported (see Rooney v The Queen[4]). In Schneider v The Queen[5], the Court referred to the appellant's possible deportation and that imprisonment would be 'more burdensome than for others in similar circumstances'. See also Konamala v The Queen[6].

37 There is the possibility you may lose the opportunity of settling permanently in Australia and that your concern about being deported upon serving your sentence will make imprisonment more burdensome for you.

38 Mr Hannebery referred to your good work history in Australia. You had worked the entire time in various jobs including in cafes, assisting a farmer at market, working in a Chinese restaurant, being a dog-walker, and recently ran your own business, Majolie & Co, which had operated for the past three years.

39 That business was a food-delivery business (cakes and pastry), and you advertised that through social media. It often involved you organising parties. In that employment you had earned the respect of a number of friends, and a number of references were placed before me.

40 At the time of this offending you were living at Hawthorn East, and had been there approximately 12 months. Prior to that you were living in Blackburn with a friend.

41 Mr Hannebery submitted that I must consider where, on the scale of serious offending your offending sits, and I do. Regarding the objective seriousness of this offending, Mr Hannebery addressed the fact that there were two separate incidents involved, which was significant. I agree, as I discussed with him. Also, that the five charges of rape involved different types of penetration, however he urged without the aggravated features of humiliation and degradation.

42 He accepted there was some violence, consistent with his written submissions, although submitted it did not involve a high level of violence as sometimes seen in offences such as this. That is so.

43 Mr Hannebery conceded Charge 5 involved you not wearing a condom, and that such was an aggravating feature.

44 Mr Hannebery conceded your offending breached the trust Ms Li had in you. Mr Hannebery acknowledged regarding the second occasion, that it was more serious.

45 Mr Hannebery submitted that whilst at 26 you were not youthful, you nevertheless he urged, had a lot of life ahead of you, and that you had strong prospects regarding your rehabilitation.

46 Mr Hannebery referred to your lack of criminal history, and that there were no matters outstanding. I of course am aware of this.

47 Mr Hannebery appropriately conceded your lack of a plea of guilty and that evidence of remorse did not assist. However, at age 26, with family support, no criminal history and a good education, there were objectively strong prospects for your rehabilitation, notwithstanding you proceeded to trial.

48 A number of references were tendered on your behalf.

49 A reference from Xiashuang Han, undated. He is a business partner of yours in Lucas & Henry Online Pty Ltd. He met you in 2015. He described you as bright and smart and you are honest.

50 A reference from Zhaoyang Liv, undated. He has known you for two years as a flatmate, business partner and friend. You are honest and he continues to support you.

51 A reference from Lisong Cai, dated 2 November 2017, who has known you for over two years. He described you as hardworking..

52 A reference from Chengwei Gu, undated. He has known you for four years. You are honest and kindhearted and your personal character is good.

53 A reference from Fuzhou No. 19 Middle School, dated 9 October 2017. You had a good attitude to your studies and your academic results were good. You were moral, helpful and respectful to your teachers and seniors. You also got along well with fellow classmates.

54 You had a cheerful personality, and had a down to earth approach.

55 A reference from Tianjiv Wang, dated 9 October 2017 ( although there seems to be an error because it refers to 2016 but I accept it was written in 2017), your middle school teacher. He was surprised to hear of your current situation. You had always had a good character and academic excellence.

56 You had been in a leadership role at high school, were morally, intelligently and physically well rounded. You also played the piano beautifully.

57 You were awarded Excellent Class Leader and Outstanding Student multiple times.

58 A reference from your parents Zhixin Zhao and Fei Yu, dated 6 October 2017. They were shocked and saddened to hear of your offending and imprisonment. Both your parents have health issues. You grew up in a good family environment and with a good education. You were involved in painting, playing the piano, swimming and tennis in your school years. You were often praised by teachers and awarded at school.

59 There was a Certificate of Accomplishment dated July 2003 of you having achieved 5th grade in piano. Also a Certificate dated 4 January 2006 in recognition of your service in the No. 19 Middle School Fair.

60 Mr Hannebery provided some sentencing statistics for both the offence of rape and sexual assault. Of course statistics have their place in sentencing (see Younan v The Queen[7] and DPP v Dalgleish[8]). However, that is merely one of the many considerations I must take into account when determining the appropriate sentence for your offending.

61 In Dalgleish the Court observed that current sentencing practices cannot justify a sentence which is manifestly inadequate. Current sentencing practice is only one factor which a sentencing judge must have regard to when fixing a just sentence in accordance with s5(2) of the Sentencing Act 1991 ([9] and [82]). Further, that current sentencing practice is not a controlling factor in the sentencing exercise and is not to be treated as determinative ([48] and [84]). Ultimately, the extent to which any factor in s5(2) will depend upon the judge ([7], [9], [68], [79] and [82]).

62 In Kalofolias v The Queen[9], involving rape the Court also referred to the limitations in comparing cases, as past cases disclose a range of circumstances and offending behaviour that can occur when rape has been committed. The range of sentences open for the offence of rape was not limited to the cases relied upon by the applicant in that case.

63 Mr Hannebery conceded that a term of imprisonment was the only appropriate disposition and submitted the base sentence would likely be found within the second group of offences (Charges 5 or 7).

64 He submitted that regarding the rapes relevant to the second occasion, he urged they be categorised as mid-range offending, and in relation to Charge 2 (the first occasion) that I should conclude that fell into the low to mid-range. I address my assessment later in these sentencing remarks.

65 Regarding the second incident, he noted as do I, that each of the charges occurred in close proximity in time. He urged substantial concurrency in relation to those charges, acknowledging there would be some cumulation in relation to Charge 2. He referred to the need to consider the principles of totality and proportionality, and that is so of course, being mindful however of R v RHMcL[10].

66 For completeness only, I state that Mr Hannebery was not relying upon any psychiatric or psychological material, and Verdins was not raised as being applicable in your case.

67 The prosecutor, Mr Glynn, provided a prosecution opening on the plea, in which he set out the chronology of this matter and that you had been in custody since the first jury verdicts on 20 September 2017. Therefore as at 2 November 2017 you had been in custody for 44 days (up to and including 2 November).

68 Mr Glynn referred to the victim impact statement before me from Ms Li. The victim of your offending has suffered considerably, in the manner described in her statement. I refer to her Statement sworn 3 November 2017.

69 Ms Li described the financial impact upon her of your offending including needing security locks on her new residence.

70 The social impact of your offending had resulted in her delaying her graduation for one year.

71 She now paid particular attention to her surrounding environment when out, especially at night. She was anxious about her safety.

72 She suffered anxiety and constant insomnia. She had cut off almost all her social activities. She had found it difficult to trust people. She felt she could not talk to people about your offending. She had very few trusted friends.

73 The Courts have also acknowledged the importance of social rehabilitation, including DPP v Toomey[11], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[12].

74 The effects upon a victim are a relevant sentencing consideration (s5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.

75 Mr Glynn submitted that each of Charges 2 to 7 inclusive were sexual offences for the purposes of Part 2A Sentencing Act 1991, and therefore, upon you being sentenced to a term of imprisonment on two of those charges, you then fell to be sentenced as a serious sexual offender on the remaining charges. As such, the provisions of ss6D and 6E Sentencing Act apply.

76 When determining the length of sentence consistent with those sections the Court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.

77 The prosecution has not urged that I impose a disproportionate sentence and I am of the opinion I can appropriately sentence you without the need to impose a disproportionate sentence.

78 Principles relevant to sentencing as a 'serious sexual offender' have been referred to as previously noted in RHMcL, and cases subsequently (Gordon v The Queen[13] and recently in DPP v Hopson[14]. Citing Gordon, Redlich JA said:

"A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentence imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.

79 Mr Glynn referred to the seriousness of your offending. Regarding Charge 2 (the first occasion), he submitted yours was forced offending. That it was Ms Li's way out of your apartment, rather than being penetrated vaginally. He also referred to the seriousness of that offending involving oral penetration and ejaculation into her mouth, which he correctly noted was relevant and elevated the seriousness of it.

80 Regarding the second occasion of offending, Mr Glynn submitted it involved multiple penetrations and also referred to the degree of violence involved, including slapping Ms Li, holding onto her and detaining her as part of your offending. I agree.

81 Mr Glynn also referred to the variety of penetrations on that second occasion.

82 Mr Glynn also submitted there was a degree of premeditation in relation to the second occasion, in that at least from the time you did a Uturn in Melbourne in the CBD after Ms Li's first visit to your apartment and before the second attendance at your apartment, it followed that in general terms thereafter you were determined to have sex with her. Mr Glynn referred to you on that second time at the apartment grabbing Ms Li from the car and forcing her into your apartment. Mr Glynn conceded there was not a long period of premeditation. It was, however, clear you wanted to have sex with her. That illustrated, in Mr Glynn's submissions, you had manifested a clear intention you wanted to have sex with Ms Li, and that you would not take no for an answer.

83 Mr Glynn submitted the second group of offending should be categorised as mid-range. He did not agree with Mr Hannebery's assessment of Charge 2 as low to moderate gravity. In the opinion of Mr Glynn the first incident was at least mid mid-range, and the second a bit higher, towards the high range. I agree with Mr Glynn's categorisation.

84 He also referred to Ms Li on the second occasion needing to flee to get away from you, that she was terrified.

85 Mr Glynn referred to a trial being conducted, as opposed to a plea of guilty. It was of course your right to proceed to trial, and you are not penalised for running your trial, rather you do not receive a discount for a plea of guilty. You had not shown any remorse. Further, he observed that from the contents of the various references provided, you were still of the opinion you had not done anything wrong.

86 Mr Glynn conceded that in custody you would be isolated from family, however, from the references tendered, he submitted there were a number of people in Australia who supported you. Whilst I accept Mr Glynn is correct in that regard, I nevertheless accept you will be isolated from family. Whilst you have lived in Australia and without family for some time, I accept there may well be restrictions on your ability to have contact with your family whilst incarcerated.

87 Turning to your rehabilitation prospects, Mr Glynn submitted it would be hard to gauge your prospects, as you did not seem to think you had done anything wrong. I also have some concern about that. He acknowledged, however, your good academic/work history, as do I.

88 In Tones v The Queen[15], the Court identified two aspects of rehabilitation:

"The first is whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse. The second is whether the offender has taken steps to reform, including by seeking counselling or other appropriate professional assistance, refraining from committing any further offences and being a valuable member of the community.

Both aspects of rehabilitation - remorse and reformation - must be demonstrated, in order for the court to give full weight to that limb."

89 In my opinion, your rehabilitation prospects are 'reasonable' I have accepted your good work history and lack of criminal record or matters pending, and other matters addressed by Mr Hannebery regarding rehabilitation prospects. You have, however, not accepted responsibility for your offending.

90 Mr Glynn tendered some sentencing statistic snapshots, and whilst of some assistance, statistics tell me very little about the individual offending and offender. I must, as I discussed with counsel, take into account all of s5 Sentencing Act 1991.

91 When sentencing you I take into account the principles of totality and proportionality, mindful also of RHMcL and the authorities to which I have previously referred.

92 I am conscious also when sentencing you that Charges 3, 4, 5, 6 and 7 occurred on the same occasion and within a relatively short period of each other. As such, consideration must be given to totality.

93 I declare I have sentenced you as a serious sexual offender on Charges 4, 5 6 and 7 and I direct that be entered into the records of the Court.

95 On Charge 2 you are convicted and sentenced to 7 years' imprisonment.

96 On Charge 3 you are convicted and sentenced to 18 months' imprisonment.

97 On Charge 4 you are convicted and sentenced to 8 years' imprisonment.

98 On Charge 5 you are convicted and sentenced to 8 years and 6 months' imprisonment.

99 On Charge 6 you are convicted and sentenced to 8 years' imprisonment.

100 On Charge 7 you are convicted and sentenced to 8 years' imprisonment.

101 Charge 5 is the base sentence, and consistent with serious sexual offender provisions, I order the following.

102 I direct that 18 months of Charge 2 be served cumulatively upon Charge 5.

103 I direct that 6 months of Charge 3 be served cumulatively upon Charge 5.

105 I direct that 7 years of Charge 4 be served concurrently and 12 months cumulatively upon Charge 5.

106 I direct that 7 years of Charge 6 be served concurrently and 12 months cumulatively upon Charge 5.

107 I direct that 7 years of Charge 7 be served concurrently and 12 months cumulatively upon Charge 5.

108 That results in a total effective sentence of 13 years and 6 months imprisonment, and I direct that you serve a period of 8 years before being eligible for parole.

109 The orders for cumulation are upon each other and upon the base sentence.

110 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 51 days in custody, and I would like that checked (up to and including yesterday, which was 9 November 2017), by way of pre-sentence detention, and I direct that be entered into the records of the Court.

111 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. This was consented to by your counsel on your behalf, and I make the order in the terms sought. It will be for a saliva sample. I make the order based on the seriousness of your offending, and I must advise you the authorities may use reasonable force to obtain that sample.

112 The prosecution has also made application for a disposal order. This was consented to by counsel on your behalf, and I make the order in the terms sought.

113 Pursuant to s6F Sentencing Act 1991, I declare I have sentenced you as a serious sexual offender on charges 4, 5, 6 and 7 and direct this be noted in the records of the Court.

114 I do not believe there were any other orders. Do you want help with the mathematics because it is a bit complicated?

115 MS PARNHAM: I am just calculating for myself, Your Honour.

116 HER HONOUR: Yes, double check the calculation and I will help you with it because it gets confusing with the concurrent/cumulative.

117 MS PARNHAM: Yes, my calculations accord with yours. I have also - - -

120 HER HONOUR: I am not asking if you agree with them, I just want to make sure you have got it right, set out.

123 MS PARNHAM: I have also calculated PSD and it equates to what you have said, 51 days.

124 HER HONOUR: So that is a total of 51 days up to and including yesterday,

126 HER HONOUR: Thank you. Can you remove the prisoner please?

[3] [2008] VSCA 136; (2008) 186 A Crim R 465

[4] [2017] VSCA 275

[5] [2016] VSCA 76

[6] [2016] VSCA 48

[7] [2017] VSCA 12

[8] [2017] HCA 41

[9] [2017] VSCA 308

[10] [2000] HCA 46; (2000) 203 CLR 452

[11] [2006] VSCA 9

[12] (2003) VSCA 109, [17] & [18]

[13] [2013] VSCA 343

[14] [2016] VSCA 303

[15] [2017] VSCA 118