Han v R

Case [2009] NSWCCA 300 18 December 2009

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New South Wales
Court of Criminal Appeal

CITATION: HAN, Zhi Qiang v R [2009] NSWCCA 300

HEARING DATE(S): 19 November 2009

JUDGMENT DATE:
18 December 2009

JUDGMENT OF: Campbell JA at 1; Howie J at 5; Rothman J at 6

DECISION:
(i) Leave to appeal the sentence, imposed by his Honour Judge Knox SC on the applicant on 23 March 2009, be granted;
(ii) Appeal be dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – sentence – manifest excess – proper range of sentences – use of statistics – appeal refused

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Johnson v R [2004] HCA 15; (2004) 205 ALR 346; (2004) 78 ALJR 616
Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Markarian v The Queen [2005] HCA 25; (2005) 22 CLR 357
Mill v R [1988] HCA 70; (1988) 166 CLR 59
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v Araya [2005] NSWCCA 283
R v F [2002] NSWCCA 320; (2002) 132 A Crim R 308
R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
R v Morgan (1993) 70 A Crim R 368
R v Singh [2001] NSWCCA 424

PARTIES: Zhi Qiang Han (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/8134

COUNSEL: P Boulton SC / J Overall (Applicant)
F Veltro (Respondent)

SOLICITORS: Ren Zhou Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/8134

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 23 March 2009

2008/8134

CAMPBELL JA
HOWIE J
ROTHMAN J
18 DECEMBER 2009

HAN, Zhi Qiang v R

Judgment

1 CAMPBELL JA: I have had the benefit of reading the judgment of Rothman J, which sets out the relevant facts.

2 Sentences imposed on other people for crimes that bear some similarity to the crime in question can legitimately be looked at as part of the process of a judge fixing a sentence. But in themselves they will not inform the judge of the range of sentences that would properly be open in a correct application of sentencing principles. It is the sentencing principles themselves that it is the duty of the judge to apply. They include taking account of the maximum penalty that Parliament has prescribed for the offence in question, and how the criminality of the particular mode of committing the offence that is being sentenced for compares to the criminality of the various possible ways in which a contravention of the particular prohibition that creates the offence could occur.

3 Statistics about the sentences that have been imposed for a particular offence can be of some assistance in informing the judge about the range of sentences that have actually been imposed for that offence. But the use of such statistics is limited. Part of the reason why that is so is because…

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 Han v R

Details

AGLC: Han v R [2009] NSWCCA 300
Case: [2009] NSWCCA 300
Decision Date: 18 December 2009

CaseChat Overview and Summary

In the matter of Han v The Queen, the appellant, Han, was convicted of drug trafficking and challenged the sentence imposed by the trial judge. The case was heard by the High Court of Australia, which was tasked with reviewing whether the sentence was manifestly excessive in comparison to the appropriate range of sentences for such an offence. Han argued that the sentence was inappropriate given the mitigating factors, including his background and level of involvement in the crime. The central legal issue before the Court was whether the sentence imposed was manifestly excessive and outside the proper range of sentences for the offence.

The Court considered whether the trial judge had correctly assessed the appropriate range of sentences for drug trafficking, taking into account all relevant factors. The Court noted that statistics and guidelines could be useful in determining the appropriate range, but they were not determinative. The High Court emphasised that the primary responsibility of the trial judge is to consider the individual circumstances of the offender and the specific offence. The Court found that the trial judge had adequately considered the mitigating factors and had exercised judicial discretion appropriately in determining the sentence. The appeal was dismissed, as the Court was not satisfied that the sentence was manifestly excessive or outside the proper range.

The High Court held that the sentence imposed was within the appropriate range for the offence of drug trafficking. The Court confirmed that while statistics and guidelines can provide useful context, they should not be the sole determinant of sentencing. Instead, the trial judge must consider the individual circumstances of the offender and the specific offence. The Court found that the trial judge had correctly applied the principles of sentencing in this case and had not erred in imposing the sentence. As a result, the appeal was dismissed, and the original sentence was upheld.

Orders