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Jiang v The Queen

Jiang v The Queen

Case [2019] VSCA 126 5 June 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0011

ZHEN JIANG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 June 2019
DATE OF JUDGMENT:	5 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 126
JUDGMENT APPEALED FROM:	DPP v Jiang [2019] VCC 2177 (Judge M Tinney)

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CRIMINAL LAW – Appeal – Sentence – Applicant charged with one count of aggravated burglary and two counts of common assault – Sentenced to two years and six months’ imprisonment, with non-parole period of one year and two months – Whether custodial sentence manifestly excessive – Whether general deterrence demanded imposition of ‘sizeable term’ of imprisonment – Prosecution conceded sentencing objectives could be met by community correction order (‘CCO’) – Applicant pleaded guilty early and cooperated with police – Low risk of re-offending – Boulton v The Queen (2014) 46 VR 308, R v Okutgen (1982) 8 A Crim R 262 applied; Leimonitis v The Queen [2018] VSCA 198 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Paul Vale Criminal Law
For the Respondent	Mr K J Doyle	John Cain, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

Zhen Jiang, now aged 50,[1] seeks leave to appeal against a total effective sentence of two years and six months’ imprisonment, with a non-parole period of one year and two months, imposed upon him in the County Court on 19 December 2018 for aggravated burglary and common assault, contending that the sentence is manifestly excessive.
[1]His date of birth is 15 February 1969.

We would uphold that contention.

For the reasons that follow, we would grant leave to appeal against the sentence; allow the appeal; and sentence the applicant to a community correction order (‘CCO’) of two years’ duration.

Charges and sentence

The total effective sentence and non-parole period were imposed as follows.

An indictment filed in the County Court charged the applicant with aggravated burglary[2] (one charge — charge 1) and common assault[3] (two charges — charges 2 and 3). He pleaded guilty; and, notwithstanding the prosecution’s concession that a CCO was an available disposition, the judge sentenced the applicant to be imprisoned for two years and two months on the charge of aggravated burglary, and to 10 months’ and eight months’ imprisonment respectively on the charges of common assault. Two months each of the sentences of imprisonment on the second and third charges were ordered to be served cumulatively with the sentence on the first, resulting in a total effective sentence of two years and six months’ imprisonment. The judge fixed a non-parole period of one year and two months.[4]
[2]Crimes Act 1958, s 77. The maximum penalty is 25 years’ imprisonment.
[3]Common assault is a crime at common law. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is five years’ imprisonment.
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for…

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 Jiang v The Queen

Details

AGLC: Jiang v The Queen [2019] VSCA 126
Case: [2019] VSCA 126
Decision Date: 5 June 2019

CaseChat Overview and Summary

The case of Jiang v The Queen involved the applicant who was convicted of one count of aggravated burglary and two counts of common assault. The applicant appealed against the sentence of two years and six months’ imprisonment, with a non-parole period of one year and two months. The central issue before the court was whether the custodial sentence imposed was manifestly excessive. The court was also required to consider whether the objectives of general deterrence necessitated the imposition of a significant term of imprisonment.

The court examined the circumstances of the case, including the applicant’s early guilty plea, cooperation with the police, and the low risk of re-offending. The prosecution acknowledged that the sentencing objectives could be met through a community correction order. The court referenced established case law, including Boulton v The Queen and R v Okutgen, to assess the proportionality of the sentence in relation to the crime committed. Additionally, the court considered the decision in Leimonitis v The Queen, which provided guidance on the application of sentencing principles in similar cases.

Upon review, the court found that the original custodial sentence was manifestly excessive given the mitigating factors and the possibility of achieving the same sentencing objectives through a community correction order. The court substituted the original sentence with a community correction order, reflecting the appropriate balance between punishment, deterrence, and rehabilitation. This decision was made in light of the applicant's early guilty plea and low risk of re-offending, as well as the prosecution’s concession regarding the suitability of a CCO.

Orders