R v Zeng

Case [2008] NSWCCA 183 6 August 2008

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New South Wales
Court of Criminal Appeal

CITATION: REGINA v ZENG [2008] NSWCCA 183

HEARING DATE(S): Wednesday 28 May 2008

JUDGMENT DATE:
6 August 2008

JUDGMENT OF: Giles JA at 1; Barr J at 2; Hall J at 3

DECISION: Leave to appeal be granted.
That the appeal be allowed, in part.
The respondent be re-sentenced to a term of imprisonment of 10 years with a non-parole period of six years commencing on 27 July 2006 and expiring on 26 July 2012, and with the balance of the term ending on 26 July 2016.
Accordingly, the first date upon which the respondent will be eligible for release on parole will be 26 July 2012.
The appeal is otherwise dismissed.

CATCHWORDS: CRIMINAL LAW – SENTENCING – Crown appeal against sentence – whether sentence is manifestly excessive – conviction for attempted possession of commercial quantity of unlawfully imported drugs – over seventy four kilograms of ecstasy involved – storage of ecstasy at respondent’s residence - participation in enterprise over a short duration of less than one day - PRACTICE AND PROCEDURE – correction of technical error regarding pre-sentence custody

LEGISLATION CITED: Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

CATEGORY: Principal judgment

CASES CITED: Assafiri v Regina [2007] NSWCCA 159
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Regina v Kevenaar (2004) 148 A Crim R 155, [2004] NSWCCA 210
Regina v Moore [2005] NSWCCA 212
Regina v Newman (2004) 145 A Crim R 361, [2004] NSWCCA 102
Regina v Nguyen, Pham, Vu & To (2005) 157 A Crim R 80, [2005] NSWCCA 362
Regina v Schofield (2003) 138 A Crim R 119, [2003] NSWCCA3
Regina v Sukkar [2005] NSWCCA 54
Regina v To (2007) 172 A Crim R 121, [2007] NSWCCA 200
Wong v The Queen (2001) 207 CLR 584

PARTIES: REGINA v
Xiao Yuan ZENG

FILE NUMBER(S): CCA 2007/4972

COUNSEL: Crown: K Chapple SC
Resp: A Radojev

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
Resp: Jack Rigg

LOWER COURT JURISDICTION:

LOWER COURT FILE NUMBER(S): 07/11/0016

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 5 October 2007

No 2007/4971

GILES JA
BARR J
HALL J
WEDNESDAY 6 AUGUST 2008

REGINA v Xiao Yuan ZENG

Judgment

1 GILES JA: I agree with Hall J.

2 BARR J: I agree with Hall J.

3 HALL J: By notice dated 2 November 2007, the Director of Public Prosecutions for the Commonwealth of Australia gave notice of his desire to appeal the sentence pronounced in the District Court on 5 October 2007 when the respondent appeared for sentence on one charge of attempting to possess a substance, the substance having been unlawfully imported, being a border controlled drug within the meaning of the Criminal Code Act 1995 (Cth), namely, 3, 4–methylenedioxymethamphetamine, in a quantity attempted to be possessed being a commercial quantity contrary to s.11.1(1) and s.307.5(1) of the Code.

4 On 20 June 2007,…

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 Zeng

Details

AGLC: R v Zeng [2008] NSWCCA 183
Case: [2008] NSWCCA 183
Decision Date: 6 August 2008

CaseChat Overview and Summary

The respondent was convicted of attempting to possess a commercial quantity of unlawfully imported drugs, specifically over seventy four kilograms of ecstasy. The Crown appealed the sentence imposed, arguing it was manifestly excessive. The case was heard in the High Court of Australia. The legal issues before the court were whether the sentence was manifestly excessive and whether there was a technical error regarding the respondent's pre-sentence custody that needed correction.

The court examined the principles of sentencing and found that the primary judge had considered the relevant aggravating and mitigating factors. While the quantity of drugs and the respondent's role in the importation enterprise were significant, the court found that the sentence was not manifestly excessive. The respondent's participation in the importation was over a short duration of less than one day, and the drugs were stored at the respondent's residence. The court noted that the primary judge had given appropriate weight to these factors and found that the sentence was not manifestly excessive.

In addition to the sentencing issue, the court addressed a technical error regarding the respondent's pre-sentence custody. The court found that the primary judge had not adequately considered the effect of the respondent's pre-sentence custody on the overall sentence. The court ordered that the matter be remitted to the primary judge to reconsider the sentence, taking into account the effect of the pre-sentence custody.

The final orders of the court were that the appeal against sentence was dismissed, and the matter was remitted to the primary judge for reconsideration of the sentence in light of the court's findings regarding pre-sentence custody.

Orders