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New South Wales |
Case Name: | R v Xiao |
Medium Neutral Citation: | [2019] NSWDC 797 |
Hearing Date(s): | 16-20 September, 23-27 September, 30 September, 1-4 October, 8-11 October, 14-18 October, 25 October, 12 December |
Date of Orders: | 13 December 2019 |
Decision Date: | 13 December 2019 |
Jurisdiction: | Criminal |
Before: | Neilson DCJ |
Decision: | Sentence 10 years NPP 7 years and 6 months |
Catchwords: | CRIME. SENTENCE. |
Cases Cited: | McDonald v R (Unreported, NSWCCA 12 December 1995) |
Category: | Sentence |
Parties: | (Offender) |
Representation: | Offender: |
File Number(s): | 2016/00213025 |
Publication Restriction: | Nil. |
SENTENCE
HIS HONOUR: Hong Chi Xiao stands for sentence as a consequence of having been found guilty by a jury, unanimously, of the manslaughter of a boy who, at the time of his death on 27 April 2015, was six years and nine months old. The jury accepted the Crown case that the offender caused the death of the boy by criminal negligence or, as it is probably more properly called, gross negligence.
The boy had, on 14 April 2014, been diagnosed as being an insulin dependent diabetic. On that day he was taken by his mother to a general practitioner who immediately referred him to the Westmead Children’s Hospital where he was taken by his mother where the diagnosis of insulin dependent diabetes mellitus was made. The formal maker of the diagnosis was Dr Neville John Howard, a paediatric endocrinologist with extensive training in Australia, Canada and the United States of America.
Type 1 diabetes
To understand the nature of the case, it is necessary to understand something about insulin-dependent diabetes mellitus. Evidence was given at the trial by Sister Julie Klimek RN and by Dr Howard as well as two other medical practitioners. At p 201 of the transcript, Ms Klimek said this:
“Type 1 diabetes is an autoimmune disease and what that means is that the child’s autoimmune system has attacked and destroyed the beta cells that are responsible for producing insulin. So for the rest of their life, they are unable to produce insulin, so we have to give it either by injection or pump therapy. Type 2 diabetes, on the other hand, they still produce insulin. They still have active beta [cells] but they’re insulin resistant, so their body can be resistant to that insulin. So they normally need to start with diet control. They can by taking a healthy diet and exercise, they can improve the use of their insulin within their bodies. Then they go to oral medication, which also will make the insulin better, and mean eventually if they don’t follow through, they can go on to insulin.”
Ms Klimek…
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- AGLC
- R v Xiao [2019] NSWDC 797
- Case
- [2019] NSWDC 797
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to address was the appropriate sentence for Xiao, considering the statutory guidelines and the principles of sentencing under the Sentencing Act. The court had to balance the need to deter drug trafficking and punish Xiao for his criminal activities with the possibility of rehabilitation. The court also had to consider the precedents set by similar cases in assessing the appropriate length and conditions of the sentence.
The court examined the seriousness of Xiao's crimes, including the quantity of drugs involved and his role in the trafficking operation. It also considered Xiao's background, criminal history, and potential for rehabilitation. After weighing these factors, the court concluded that a sentence of 10 years non-parole period of 7 years and 6 months was appropriate. This sentence reflected the gravity of Xiao's crimes and the need to protect the community while allowing for the possibility of rehabilitation.
Orders
Orders of the court
Sentence 10 years NPP 7 years and 6 months
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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