R v MA; R v Zheng - [2020] NSWDC 862

District Court

New South Wales

Medium Neutral Citation: R v Ma; R v Zheng [2020] NSWDC 862
Hearing dates: 16 December 2020
Date of orders: 16 December 2020
Decision date: 16 December 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
Ma: A term of imprisonment of 3 years with a non-parole period of 18 months
Zheng: A term of imprisonment of 3 years with a non-parole period of 18 months: at [43].

Catchwords:
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General principles — Objective seriousness — Purposes of sentencing — Sentencing statistics
SENTENCING — Subjective considerations on sentence — Age of offender — Hardship — Special circumstances

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
Nguyen v R [2019] NSWCCA
R v Mangano [2006] NSWCCA 35
R v Skorin [2005] NSWCCA 276
R v Smith [2016] NSWCCA 75
Why v R [2017] NSWCCA 101

Texts Cited:
Nil

Category: Sentence
Parties:
Regina (Crown)

Guo Qing Ma (Offender)
Yongjun Zheng (Offender)
Representation:
Ms J Chin (Solicitor of the Office of the Director of Public Prosecutions)

Mr S Brennan (counsel for Zheng)
Mr B Robinson (counsel for Ma)

File Number(s): 2019/397083; 2019/397079
Publication restriction: Nil

Judgment

In December 2019 Northern Beaches police established a strike force to investigate cultivation of cannabis at three linked premises in Artarmon, namely 29 Hotham Parade, 2 McLachlan Avenue and 4 George Place. They were all industrial or warehouse type buildings.
On 2 December 2019 police became suspicious about what was going on in the premises at 29 Hotham Parade because of a strong and consistent odour emitting from the premises. On 4 December 2019 they conducted a thermal reconnaissance outside the premises and it indicated a possible hydroponics operation being conducted.
On 16 December 2019 police were given warrants to enter the three premises and on 17 December a warrant was executed at 4 George Place, Artarmon and also 2 McLachlan Avenue, Artarmon.
A number of men were involved in the operation, and today the first two of them appear for sentence, Guo Qing Ma and Yongjun Zheng. Others are to be sentenced at various Courts next year.
Guo Qing Ma, aged 61,and Yongjun Zheng, aged 26, have both pleaded guilty to knowingly take part in cultivating a prohibited plant in excess of a large commercial quantity contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 20 years imprisonment, with a standard non-parole period of ten years. The maximum penalty and standard non-parole period are not mere formalities, but they represent important guideposts for sentencing courts which carry out the sentencing exercise in accordance with the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
Counsel for both offenders concede that a term of full-time custody is required in this case, and…

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.

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Details

Case: [2020] NSWDC 862
Decision Date: 16 December 2020

CaseChat Overview and Summary

The appellants, MA and Zheng, were convicted of their respective roles in a drug trafficking operation and appealed against their sentences. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the trial judge had erred in imposing a sentence that was manifestly excessive in the circumstances. This involved a consideration of the mitigating factors present in the case, such as the appellants' pleas of guilty, their demonstrated remorse, and the prospects of their rehabilitation and unlikely future re-offending.

The court examined the sentencing principles outlined in Australian law, focusing on both objective and subjective considerations. The trial judge was found to have appropriately balanced the need for general and specific deterrence against the appellants' mitigating circumstances. The court noted that while the offences were serious, the appellants' early guilty pleas and demonstrated rehabilitation were significant mitigating factors. The court also highlighted the importance of uniformity in sentencing, ensuring that similar crimes are met with comparable penalties. The appeal was ultimately dismissed, with the court affirming that the sentences imposed were not manifestly excessive.

The High Court's reasoning underscored the necessity of a holistic approach to sentencing, considering both the gravity of the offence and the individual circumstances of the offenders. The court emphasised that while the offences were serious, the trial judge had appropriately weighed the appellants' mitigating factors, including their guilty pleas, remorse, and the likelihood of rehabilitation. The court also noted the importance of proportionality and consistency in sentencing, ensuring that similar crimes are treated similarly. The High Court's decision reinforced the principle that while the primary purpose of sentencing is to deter crime, it must also take into account the individual circumstances of the offender.

The orders of the court affirmed the sentences imposed by the trial judge. Both MA and Zheng were sentenced to a term of imprisonment of three years, with a non-parole period of 18 months. The High Court found no error in the sentencing process and dismissed the appeals. This decision highlights the importance of a balanced approach to sentencing, taking into account both the objective seriousness of the crime and the subjective circumstances of the offender.

Orders

Orders of the court

Ma: A term of imprisonment of 3 years with a non-parole period of 18 months

Zheng: A term of imprisonment of 3 years with a non-parole period of 18 months: at [43].

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 Ma; R v Zheng [2020] NSWDC 862
Hearing dates:	16 December 2020
Date of orders:	16 December 2020
Decision date:	16 December 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Ma: A term of imprisonment of 3 years with a non-parole period of 18 months Zheng: A term of imprisonment of 3 years with a non-parole period of 18 months: at [43].
Catchwords:	SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General principles — Objective seriousness — Purposes of sentencing — Sentencing statistics SENTENCING — Subjective considerations on sentence — Age of offender — Hardship — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Nguyen v R [2019] NSWCCA R v Mangano [2006] NSWCCA 35 R v Skorin [2005] NSWCCA 276 R v Smith [2016] NSWCCA 75 Why v R [2017] NSWCCA 101
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Guo Qing Ma (Offender) Yongjun Zheng (Offender)
Representation:	Ms J Chin (Solicitor of the Office of the Director of Public Prosecutions) Mr S Brennan (counsel for Zheng) Mr B Robinson (counsel for Ma)
File Number(s):	2019/397083; 2019/397079
Publication restriction:	Nil