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Qiu v The The King

Qiu v The The King

Case [2022] NSWCCA 247 25 November 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Qiu v R [2022] NSWCCA 247
Hearing dates: 1 August 2022
Date of orders: 25 November 2022
Decision date: 25 November 2022
Before: Gleeson JA at [1]
Wright J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed and in its place:
(a) Impose an aggregate sentence of imprisonment of 3 years and 10 months;
(b) Under s 19AB(1) of the Crimes Act 1914 (Cth) impose a non-parole period of 2 years; and
(c) The sentence and non-parole period to date from 17 February 2021.

Catchwords:
CRIME — appeals — appeal against sentence — federal offences — attempted exportation of regulated native specimens — possession of CITES-regulated specimens — manifest excess — sentence unreasonable or plainly unjust — resentenced

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Environment Protection and Biodiversity Conversation Act 1990 (Cth)

Cases Cited:
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Kirby v R [2021] NSWCCA162
Klein v The Queen (1989) 39 A Crim R 332
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242
R v Robison (1992) 62 A Crim R 374

Texts Cited:
Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 3 March 1973)

Category: Principal judgment
Parties: Zheyuan Qiu (Applicant)
Regina (Crown)
Representation:
Counsel:
S Kluss (Applicant)
D Staehli SC (Respondent)
Solicitors:
Ross Hill & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/23900
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 February 2021

Before:

Marien SC ADCJ

File Number(s):

2020/23900

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal from an aggregate sentence imposed upon him in the District Court following a plea of guilty in respect of 19 offences under the Environment Protection and Biodiversity Conversation Act 1990 (Cth) and ss 11.1(1) and 11.2A(1) of the Criminal Code (Cth).

The applicant was sentenced along with his co-offender (his partner) who was sentenced in respect of 14 offences, all being part of the same scheme. The applicant was sentenced to an aggregate sentence of 5 years’ imprisonment with a non-parole period of 2 years and 10 months.

The applicant appealed against the sentence on two grounds, being: (i) that the aggregate sentence was manifestly excessive; and (ii) that he had a justifiable sense of grievance having regard to the sentence imposed on the co-offender (parity).

The Court held (Cavanagh J, Gleeson JA and Wright…

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 Qiu v The The King

Details

AGLC: Qiu v The The King [2022] NSWCCA 247
Case: [2022] NSWCCA 247
Decision Date: 25 November 2022

CaseChat Overview and Summary

The case involved Qiu, the appellant, who appealed against his sentence imposed by the Federal Circuit Court. The dispute centred around federal offences, specifically attempted exportation of regulated native specimens and possession of specimens regulated under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The matter was heard in the High Court of Australia. The appellant argued that his sentence was manifestly excessive and thus unreasonable or plainly unjust, seeking a reduction of his sentence.

The court was required to determine whether the original sentence was manifestly excessive, and if so, whether it was appropriate to resentence the appellant. The appeal hinged on the principles of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly the requirement that a sentence should not be greater than necessary to achieve the relevant sentencing purposes. The court also considered the totality of the circumstances surrounding the offence, including the appellant's background, the seriousness of the offence, and the need for deterrence and denunciation.

The High Court found that the original sentence was indeed manifestly excessive, taking into account the specific nature of the offences and the appellant's personal circumstances. The court determined that a re-sentencing was necessary to ensure that the sentence reflected the appropriate balance between punishment, deterrence, and rehabilitation. The court then proceeded to re-sentence the appellant, providing detailed reasons for the revised penalty, ensuring it aligned with the overarching objectives of the sentencing legislation.

The final orders of the court included the reduction of the appellant's sentence, with specific details provided regarding the new sentence imposed. The court's decision underscored the importance of proportionality in sentencing, emphasising the need for courts to carefully consider the individual circumstances of each case to achieve just outcomes.

Orders