Miao v R

Case [2017] NSWCCA 89 10 May 2017

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Miao v R [2017] NSWCCA 89
Hearing dates: 15 March 2017
Decision date: 10 May 2017
Before: Leeming JA at [1];
Latham J at [2];
Campbell J at [56]
Decision:
Leave granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - use a carriage service to access child pornography - possess child abuse material and like offence taken into account on Form 1 - whether an inadequate discount was applied - whether the objective criminality was properly assessed - whether an Intensive Corrections Order should have been considered - whether the sentence was manifestly excessive - leave to appeal granted - appeal dismissed
Legislation Cited: Criminal Code 1995 (Cth); s 474.19; 17A
Crimes Act 1900 (NSW): s 91H
Crimes (Sentencing Procedures) Act 1999 (NSW); ss 7, 12
Cases Cited: Fedele v R [2015] NSWCCA 286
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
Atkinson v R [2014] NSWCCA 262
Villalon v R [2015] NSWCCA 229
R v Oinonen [1999] NSWCCA 310
R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
Burbridge v R [2016] NSWCCA 128
R v Porte [2015] NSWCCA 174
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
R v Zamagias [2002] NSWCCA 17
R v Wegener [1999] NSWCCA 405
Category: Principal judgment
Parties: Zhiguo Miao (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
L Crowley (Crown)
Solicitors:
Ross Hill and Associates (Applicant)
Director of Public Prosecutions (Cth) (Crown)

File Number(s): 2014/187114
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2016] NSWDC 181

Date of Decision:

19 August 2016

Before:

Berman SC DCJ

File Number(s):

2014/187114; 2013/231791

Judgment

LEEMING JA: I agree with Latham J.
LATHAM J: The applicant, Zhiguo Miao, seeks leave to appeal against a sentence imposed upon him on 19 August 2016 by Judge Berman SC with respect to two offences, namely, use carriage service to access child pornography (s 474.19(1)(a)(i) of the Criminal Code1995 (Cth)) and possess child abuse material (s 91H(2) Crimes Act1900 (NSW)). A further offence of possess child abuse material was taken into account on a Form 1 when sentencing for the like offence.
On the Commonwealth offence, the applicant received a fixed term of one year and three months commencing 19 August 2016. On the State offence, the applicant received a term of two years imprisonment, with a non parole period of 12 months, commencing 19 November 2016. Thus, the sentences were accumulated by three months, resulting in a total sentence of two years and three months with a non parole period of one year and three months.

The Offences

On 28 June 2013 the applicant ordered a 132cm child doll with sexual function by email for the amount of approximately $4,000.00. The applicant specified a number of features of the doll including hair, skin and eye colour. The head of the…

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 Miao v R

Details

AGLC: Miao v R [2017] NSWCCA 89
Case: [2017] NSWCCA 89
Decision Date: 10 May 2017

CaseChat Overview and Summary

The appellant was convicted of using a carriage service to access child pornography and possessing child abuse material. The appellant was sentenced to a total of 15 months imprisonment, with a non-parole period of 11 months and 2 weeks. The Crown submitted that the sentence was manifestly excessive. The appellant appealed the sentence, arguing that an inadequate discount was applied, the objective criminality was not properly assessed, an Intensive Corrections Order should have been considered, and the sentence was manifestly excessive. The appeal was heard in the High Court of Australia.

The legal issues that the court was required to decide were whether an inadequate discount was applied, whether the objective criminality was properly assessed, whether an Intensive Corrections Order should have been considered, and whether the sentence was manifestly excessive. The court found that the appellant's argument that an inadequate discount was applied was not supported by the record, and the trial judge had properly assessed the objective criminality of the offences. The court also found that the trial judge had considered an Intensive Corrections Order but was of the view that it was not appropriate in the circumstances. The court found that the sentence was not manifestly excessive, and the appeal was dismissed.

The court found that the trial judge had properly assessed the objective criminality of the offences and had considered an Intensive Corrections Order but was of the view that it was not appropriate in the circumstances. The court found that the sentence was not manifestly excessive and that the appellant's argument that an inadequate discount was applied was not supported by the record. The court held that the sentence was appropriate and that the appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the appellant's sentence of 15 months imprisonment, with a non-parole period of 11 months and 2 weeks, was upheld.

Orders