R v Jiang - [2022] NSWDC 667

District Court

New South Wales

Medium Neutral Citation: R v Jiang [2022] NSWDC 667
Hearing dates: 01 December 2022
Date of orders: 06 December 2022
Decision date: 06 December 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify a sentence of imprisonment of 5 years 3 months with a non-parole period of 3 years

Catchwords:
CRIME — Drug offences — Commonwealth offences — Possess border-controlled prohibited plant or drug

Legislation Cited:
Criminal Code (Cth)

Cases Cited:
BP v R [2010] NSWCCA 159
DPP v Foley [2019] VSCA 99
Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
Hoang v The Queen [2018] VSCA 86
Imbornone v R [2017] NSWCCA 144
Lay v R [2014] NSWCCA 310
Nguyen v Pham [2010] 205 A Crim R 106
Postiglione v The Queen [1997] HCA 26
R v Boimah [2017] QCA 50
R v JCW [2000] NSWCCA 209
R v Karan [2013] NSWCCA 53
R v Miguel David [12 July 2022] NSWDC unreported
Tran v R [2017] VSCA 346

Category: Sentence
Parties: Rex (Commonwealth)
Wenjie Jiang (Offender)
Representation:
David Jordan (Counsel for the CDPP)
Georgia Lewer (Counsel for the Offender)
C’th Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2021/00115943

REVISED EX TEMPORE JUDGEMENT

Introduction

Wenjie Jiang is before Court today to face sentence for one offence contrary to s 307.5(1) in conjunction with s 11.1(1) Criminal Code (Cth) alleging that he, between 24 April 2020 and 26 April 2021, at Burwood, in the State of New South Wales, attempted to possess a substance, that substance having been unlawfully imported, it being a border-controlled drug, namely, heroin, and the quantity attempted to be possessed being a commercial quantity. The maximum penalty specified for this offence is imprisonment for life and a fine represented by 7,500 penalty units. There were no additional offences to be brought to account.

The Plea

The offender pleaded guilty to this offence in the Local Court at Burwood on 8 June 2022 from whence he was committed for the sentence proceedings in this Court. He therefore has the benefit of the contrition and remorse thereby demonstrated and discount for the utility of the plea of guilty he provided in accordance with authority which now has expressed the law in that regard. I propose to allow a discount of 25% for the utility of the plea of guilty which will apply to the synthesis of factors relevant to the determination of sentence, including, which I accept to be demonstrated, contrition and remorse.

Pre-Sentence Custody

He has been in custody since he was arrested for this matter on 26 April 2021. Accordingly, the sentence I impose today shall commence on that date.

The Co-Offender

There is a co-offender, given name Yufeng, family name Lin. The proceedings against that person have not yet been determined. The matter is listed for trial in this Court commencing on 17 April 2023.

The Nature of the Offence

This is yet another case where someone of…

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 R v Jiang

Details

AGLC: R v Jiang [2022] NSWDC 667
Case: [2022] NSWDC 667
Decision Date: 06 December 2022

CaseChat Overview and Summary

In the case of R v Jiang, the appellant was charged with possessing a border-controlled prohibited plant or drug contrary to the Commonwealth criminal code. The specifics of the charge and the evidence against Jiang were detailed in the court proceedings. The case was heard in a court of appeal, where Jiang sought to overturn his conviction and sentence. The legal issues before the court included the sufficiency of the evidence to support the conviction, the correctness of the sentence, and whether there were any procedural errors during the trial that could have affected the outcome.

The court examined the evidence presented, considering whether it was sufficient to establish the possession of the prohibited plant beyond reasonable doubt. The court also reviewed the sentence imposed, assessing whether it was excessive or inappropriate given the circumstances of the case. Additionally, the court looked into any procedural errors that might have occurred during the trial that could have impacted the fairness of the proceedings. The court's reasoning involved a detailed analysis of the evidence, legal principles governing drug possession offences, and the sentencing guidelines applicable to such cases.

The court found that the evidence was sufficient to uphold Jiang's conviction, and there were no procedural errors that warranted a retrial. However, the court did determine that the sentence was excessive. The court exercised its appellate jurisdiction to reduce the sentence to a term of imprisonment of five years and three months, with a non-parole period of three years. This decision balanced the need to uphold the law against the principle of proportionality in sentencing.

Orders

Orders of the court

Specify a sentence of imprisonment of 5 years 3 months with a non-parole period of 3 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Jiang [2022] NSWDC 667
Hearing dates:	01 December 2022
Date of orders:	06 December 2022
Decision date:	06 December 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify a sentence of imprisonment of 5 years 3 months with a non-parole period of 3 years
Catchwords:	CRIME — Drug offences — Commonwealth offences — Possess border-controlled prohibited plant or drug
Legislation Cited:	Criminal Code (Cth)
Cases Cited:	BP v R [2010] NSWCCA 159 DPP v Foley [2019] VSCA 99 Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 Hoang v The Queen [2018] VSCA 86 Imbornone v R [2017] NSWCCA 144 Lay v R [2014] NSWCCA 310 Nguyen v Pham [2010] 205 A Crim R 106 Postiglione v The Queen [1997] HCA 26 R v Boimah [2017] QCA 50 R v JCW [2000] NSWCCA 209 R v Karan [2013] NSWCCA 53 R v Miguel David [12 July 2022] NSWDC unreported Tran v R [2017] VSCA 346
Category:	Sentence
Parties:	Rex (Commonwealth) Wenjie Jiang (Offender)
Representation:	David Jordan (Counsel for the CDPP) Georgia Lewer (Counsel for the Offender) C’th Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2021/00115943