Qian v The Queen - [2012] NSWCCA 283

Court of Criminal Appeal

New South Wales

Case Title: Qian v R

Medium Neutral Citation: [2012] NSWCCA 283

Hearing Date(s): 6 September 2012

Decision Date: 20 December 2012

Before: Simpson J at [1]; McCallum J at [45]; Bellew J at [46]

Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentences - pleas of guilty - robbery whilst armed with offensive weapon, inflicting grievous bodily harm - robbery whilst armed with offensive weapon, causing wounding - aggravated detain person for advantage (in company) - robbery whilst armed with offensive weapon - Form 1 offences - dishonestly obtaining money - carried in a conveyance taken without the consent of the owner - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - whether undue emphasis on standard non-parole period - no error in approach to use of standard non-parole period - appeal dismissed

Legislation Cited: Crimes (Sentencing Procedure) Act 1999

Cases Cited: Bolt v R [2012] NSWCCA 50
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Way [2004] NSWCCA 131; 60 NSWLR 168

Category: Principal judgment

Parties: Jiang Qian (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
N J Parsons (Applicant)
R Herps (Respondent)

- Solicitors: Solicitors:
David H Cohen (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2009/56365; 2009/76003; 2009/127694

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Sides DCJ

- Date of Decision: 16 March 2010

- Court File Number(s): 2009/56365; 2009/76003; 2009/127694

JUDGMENT

SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 16 March 2010, following his pleas of guilty to six charges, and his acknowledgement, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), of his guilt of a further three offences listed on a Form 1.
The charges to which the applicant pleaded guilty, the maximum penalties provided by statute, and the sentences imposed, are set out in the table below.

SentenceSentence

Expiry date

Sentence Expiry date
Count

Maximum penalty Standard non-parole period (Sentencing Procedure Act, Pt 4 Div 1A (where applicable)) Head sentence Non-parole period Commencement date Non-parole period Head sentence

1 robbery whilst armed with offensive weapon, inflicting grievous bodily harm 08.10.2006 25 years (Crimes Act 1900, s 98) 7 years 6 years 6 months 4 years 31.03.2011 30.03.2015 30.09.2017

2 robbery whilst armed with offensive weapon, causing wounding 25.11.2006 25 years (Crimes Act, s 98) 7 years (taking into account Form 1 offences) 8 years 4 years 31.03.2013 30.03.2017 30.03.2021

3, 4 aggravated detain person for advantage (in company) 25.11.2006 20 years (Crimes Act, s 86(2)(a)) N/A 4 years 6 months 3 years 31.09.2010 30.09.2013 30.03.2015

5 robbery whilst armed with offensive weapon 25.11.2006 20 years (Crimes Act, s 97(1)) N/A 4…

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 Qian v The Queen

Details

AGLC: Qian v The Queen [2012] NSWCCA 283
Case: [2012] NSWCCA 283
Decision Date: 20 December 2012

CaseChat Overview and Summary

The case of Qian v The Queen involved the appellant, who pleaded guilty to several charges, including robbery while armed with an offensive weapon, causing grievous bodily harm and wounding. The appellant and his co-offenders were also found guilty of aggravated detain person for advantage in company and another count of robbery while armed with an offensive weapon. The appellant was also charged with dishonestly obtaining money and carrying it in a conveyance taken without the owner's consent. The appeal was against the sentences imposed by the trial judge. The primary issue before the court was whether the trial judge had placed undue emphasis on the standard non-parole period when sentencing the appellant, following the decision in Muldrock v The Queen.

The court examined the approach taken by the trial judge in determining the appropriate sentence, including the weight given to the standard non-parole period. The court noted that the trial judge had considered the relevant principles and authorities, and had given proper weight to the appellant's offending and the need for general and specific deterrence. The court concluded that there was no error in the trial judge's approach to the use of the standard non-parole period, and that the sentence imposed was not manifestly excessive or inadequate. The appeal was dismissed, and the appellant's convictions and sentences were upheld.

Orders