R v Zhang

Case [2017] SASCFC 5

Supreme Court of South Australia

(Court of Criminal Appeal)

R v ZHANG

[2017] SASCFC 5

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Auxiliary Justice Chivell)

16 February 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUD - DEFRAUDING THE COMMONWEALTH - SENTENCE

Appeal against sentence. Appellant pleaded guilty to three counts of unlawfully dealing with identification information, two counts of importing tobacco products with the intention of defrauding the revenue, one count of possessing tobacco goods knowing they were imported with the intention of defrauding the revenue, one count of dealing with money or property reasonably suspected of being proceeds of crime and one count of attempting to possess a document knowing that it was a false foreign passport.

Appellant sentenced to a total of four years and eight months imprisonment with a non-parole period of two years. Whether head sentence and non-parole period were manifestly excessive - whether the judge failed to consider the principle of totality - whether the judge erred in making the sentences on counts 4, 5 and 6 cumulative upon the sentences on counts 1, 2 and 3 - whether the judge erred in making the sentence on count 8 cumulative upon the sentence on the other counts - whether the judge gave adequate credit for the appellant's offer to assist the authorities - whether the judge failed to reduce the non-parole period in recognition of his offer of assistance.

Held per Chivell AJ (Kourakis CJ and Vanstone J agreeing): Sentence not manifestly excessive. Appeal dismissed.

Crimes Act 1914 (Cth) s 16A, s 16AC, s 19AB; Criminal Code (Cth) s 11.1, s 372.1(1), s 400.9(1A); Customs Act 1901 (Cth) s 233BABAD(1), s 233BABAD(2); Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) s 22; Migration Act 1958 (Cth) s 501, s 501CA; Tobacco Plain Packaging Act 2011 (Cth); Correctional Services Act 1982 (SA) s 37A; Criminal Law (Sentencing) Act 1988 (SA) s 10B s 10C, s 18A, referred to.
R v Kreutzer (2013) 118 SASR 211; R v Horstmann [2010] SASC 103, (2010) 269 LSJS 42; House v The King (1936) 55 CLR 499; AB v The Queen (1999) 198 CLR 111; Kentwell v The Queen [2014] HCA 37; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Lombard v Police [2016] SASC 179; R v Kopa; Ex parte DPP (Cth), R v Istogu; Ex parte DPP (Cth) (2004) 145 A Crim R 287; R v Nguyen (2005) 157 A Crim R 80; Postiglione v The Queen (1997) 189 CLR 295; R v Rossi (1988) 142 LSJS 451; Hili v The Queen (2010) 242 CLR 520; R v Creed (1985) 37 SASR 566; Mill v The Queen (1988) 166 CLR 59; R v…

Continue reading R v Zhang

Sign in free to access the full text

Details
AGLC
R v Zhang [2017] SASCFC 5
Case
[2017] SASCFC 5
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Zhang against a sentence imposed by a lower court. Mr Zhang was found to have been a principal in an elaborate scheme to import large quantities of cigarettes and tobacco into Australia without paying the required duty, thereby defrauding the Commonwealth. The scheme involved the use of postal boxes opened using fraudulently obtained bank cards, and the importation of a significant number of parcels containing tobacco products. The total revenue evaded was substantial.

The legal issues before the Court of Criminal Appeal included whether the sentencing judge had erred in her consideration of the totality principle when sentencing Mr Zhang for multiple offences, and more broadly, whether the sentence imposed was manifestly excessive. The appeal also touched upon the consideration of the prospect of Mr Zhang's deportation and its impact on the sentence.

The Court considered the principle of totality, which requires a sentencing judge to ensure that the aggregate of sentences for multiple offences is a just measure of the total criminality and is not crushing. While the sentencing judge did not explicitly state she had "stood back" to consider totality, the Court found that this was not necessarily an error, particularly where a judge arrives at a total sentence without determining individual sentences separately. The Court also addressed the argument that the prospect of deportation should have been taken into account, concluding that the judge did not err in failing to do so, both in terms of the general burden of the sentence and the potential exercise of executive discretion.

Ultimately, the Court dismissed the appeal. It found that Mr Zhang was a principal in a serious scheme motivated by greed, involving substantial evasion of duty and the use of fraudulent means. While acknowledging Mr Zhang's youth, lack of prior convictions, contrition, early guilty plea, and offer of cooperation, the Court determined that these mitigating factors did not render the sentence manifestly excessive, especially given the importance of general deterrence in such cases and the significant criminality involved. The judge was found to have given appropriate weight to the mitigating factors in fixing a relatively short non-parole period.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 10 October 2016, Peek J granted permission to appeal on grounds 1 and 6, and referred grounds 2, 3, 4 and 5 to this Court for adjudication.[8][8] AB 52.Background Mr Zhang’s offending became apparent on 15 January 2016, when he was searched on arrival at Adelaide International Airport. A mobile telephone in his possession contained photographs of cigarettes concealed in various ways, x-ray images of cigarettes and tobacco concealed in various ways, bulk cigarettes stored in a warehouse, Express Mail Service consignment details, text messages detailing sale and distribution of cigarettes in Adelaide, email records of storage unit rentals, records of post office boxes, and a receipt issued by the Australian Border Force in relation to cigarette importations. Mr Zhang was arrested. A subsequent investigation revealed further evidence that he and his partner, Ms Jie Li, had been importing large quantities of cigarettes into Australia without paying the required duty. The method used was posting consignments to multiple post office boxes. Some, but not all, of the post office boxes were in false names. Count 1, the first of the identity offences, involved the use by Mr Zhang of a bank card in the name of one of his former housemates. A post office box at the Norwood Post Office was opened on 23 September 2014 using the card. The former housemate said the signature on the card was not his, he had never had a card with those numbers, and had never opened a post office box. Count 2 involved the use by Mr Zhang of a bank card in the name of the wife of the former housemate in count 1. A post office box was opened at the Kent Town Post Office on 23 September 2014 using that card. When interviewed, the woman whose name appeared on the card said the signature on the card was not hers, she had never had a card with those numbers, and she had never opened a post office box. Count 3 involved the use by Mr Zhang of a bank card in the name of another of his former housemates. This bank card was used to open a post office box at the Sturt Street Post Office on 1 December 2014. The former housemate told the investigators that after she left Mr Zhang’s premises, her bank card had expired. When she applied for a new card, the bank informed her that they had sent a new card to Mr Zhang’s address. She said the signature on the card was not hers, she did not recall a bank card with those numbers, and she had never opened a post office box in Australia. As to count 4, the first importing offence, the investigators reviewed records held by the Australian Border Force which disclosed that between September 2015 and February 2016, Mr Zhang and Ms Li imported 547 parcels which contained 377,000 cigarettes and 15.96 kilograms of loose tobacco. The total revenue evaded was $245,166.43. As to count 5, when Australian Border Force officers attended at Mr Zhang’s residence, they found 28 post office box keys, and subsequently established that a further 68 parcels had been sent from overseas to 38 post office boxes, 13 parcel lockers and 16 parcel collection points. In all, the 68 parcels contained 253,920 cigarettes and 0.921 kilograms of loose tobacco. The total revenue evaded was $155,671.99.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I respectfully agree with that analysis. Leaving aside the fact that the issue was not raised at the time of sentencing, the judge did not err in failing to take into account the prospect of deportation of Mr Zhang. This is so both in relation to the possibility that the sentence is more burdensome to Mr Zhang generally, and in relation to the further possibility that the Chief Executive’s discretion under s 37A of the Correctional Services Act may be exercised in a particular way.Conclusion The ultimate question for determination in this appeal is whether the sentence imposed was manifestly excessive. Mr Zhang was a principal in an elaborate scheme to import tobacco into Australia without paying duty. A total of 615 parcels was imported, over a six-month period, in a scheme which Mr Zhang devised and for which he made all the necessary arrangements. These parcels were delivered to postal boxes and parcel collection points. Some of these facilities were opened using bank cards Mr Zhang had fraudulently obtained from former housemates. The importation of a counterfeit passport is also a serious offence. Mr Zhang derived very substantial profits from his crimes. His actions were motivated by greed. It is not suggested that he was in difficult financial circumstances. He had the option of a professional career in Australia had he pursued his studies. None of the cases put forward for comparison demonstrated the same level of criminality – in each case the offender’s role was more limited and the crimes were instigated by others. Having regard to the nature of these offences and the resources required to detect them, as evidenced by the large body of evidence presented by the prosecution in this case, and to the evident intention of Parliament when the penalties were increased, general deterrence must be an important component of the sentencing scheme in such cases. Mr Zhang is a young man with no previous convictions. He was 23 years old when the offences were committed. He is contrite, he pleaded guilty at an early stage, and he offered to cooperate with authorities. There is little else to mitigate the seriousness of his offending. In all the circumstances, I do not accept that the sentence was manifestly excessive. The judge gave appropriate weight to Mr Zhang’s age, contrition, cooperation and prospects for rehabilitation in fixing a relatively short non-parole period. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The other matter which is noteworthy in relation to s 16A(2) is that although the court is required to take into account the fact that the offender has pleaded guilty to the charge,[24] there is no provision for specific discounts for pleas of guilty at particular stages of the proceedings.[25][24] Section 16A(2)(g).[25] Cf Criminal Law Sentencing Act 1988 (SA) ss 10B and 10C.Consideration It is convenient to commence with a consideration of the grounds which assert that process errors have occurred.Totality (Ground 2) A judge imposing a sentence for multiple offences should ensure that ‘the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved’,[26] and that the aggregate of all the sentences did not become ‘so crushing as to call for some reduction in the aggregate’.[27] These two factors are the two ‘limbs’ of what has become known as the ‘totality principle’. [26] Postiglione v The Queen (1997) 189 CLR 295 at 307-8 per McHugh J.[27] R v Rossi (1988) 142 LSJS 451 per King CJ, cited by McHugh J in Postiglione at 308. Totality is a common law sentencing principle which applies to federal sentencing.[28] [28] Hili v The Queen (2010) 242 CLR 520 at [25]. It was submitted that because the judge made no mention of totality in her sentencing remarks, she did not consider the matter when sentencing. It is true that her Honour did not specifically indicate that she had ‘stood back’ and considered whether the sentence violated the two limbs of the totality principle quoted above.[29] [29] See R v Creed (1985) 37 SASR 566 at 568 per King CJ. In Mill v The Queen,[30] the High Court stated:Where the principle [of totality] falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.[30] (1988) 166 CLR 59 at 63, per Wilson, Deane, Dawson, Toohey and Gaudron JJ (quoting Thomas, Principles of Sentencing, 2nd ed. (1979) 56). In R v E, AD, Doyle CJ said:[31] The concept of totality will usually have little part to play when a sentence is imposed in exercise of the powers conferred by s 18A of the Sentencing Act. If the sentencing judge arrives at a sentence, without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate: see R v Major (1998) 70 SASR 488. No further reduction under the totality principle would usually be called for: see R v Bennett [2005] SASC 55 at [15]-[16] Doyle CJ; R v B, RWK [2005] SASC 84; (2005) 91 SASR 200 at [16]–[17] Doyle CJ, at [24]–[25] Vanstone J. That is not to say that the principle of totality never requires consideration in such a case. Ordinarily one would not expect it to require separate consideration.[31] (2005) 93 SASR 20 at [36].