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R v Zhang

R v Zhang

Case [2004] NSWCCA 358 30 September 2004

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CITATION: Regina v Zhang [2004] NSWCCA 358

HEARING DATE(S): 30/9/04

JUDGMENT DATE:
30 September 2004

JUDGMENT OF: Wood CJ at CL at 1, 34; Hislop J at 32; Smart AJ at 33

DECISION: 1. Leave to appeal granted; 2. Sentence imposed below quashed and in lieu thereof the Applicant be sentenced to a term of imprisonment for seven years, to date from 19 August 2002 ; 3. Non parole period of four and a half years set, to date from 19 August 2002, and to expire on 18 February 2007.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - malicious wounding with intent to inflict grievous bodily harm - plea of guilty - whether insufficient consideration was given to the extent of provocation involved - appeal allowed.

LEGISLATION CITED: Crimes Act 1900 - s 33
Crimes (Sentencing Procedure) Act 1999 - s 21A(3)

CASES CITED: Regina v Doorey [2000] NSWCCA 456
Regina v George [2004] NSWCCA 247
R v Mioduszewski [2004] NSWCCA 154
Regina v Morgan (1993) 70 A Crim R 368
Regina v Rothapfel NSWCCA 4 August 1992
Regina v Trevenna [2004] NSWCCA 43
Regina v Watt NSWCCA 2 April 1997
Siganto v The Queen (1998) 194 CLR 656

PARTIES :
Regina
Shuzhi Zhang

FILE NUMBER(S): CCA 2004/1863

COUNSEL: D Frearson SC
G D Wendler

SOLICITORS: S Kavanagh
S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0119

LOWER COURT
JUDICIAL OFFICER : Taylor DCJ

- 8 -

2004/1863

WOOD CJ at CL
HISLOP J
SMART AJ

Regina v Shuzhi Zhang

Judgment

1 WOOD CJ at CL: On 11 December 2003, the Applicant was sentenced by Taylor DCJ to a term of imprisonment of eight years with a non parole period of five years, each to date from 19 August 2002, for an offence of malicious wounding with intent to do grievous bodily harm. He had pleaded guilty to this offence on the date fixed for his trial, and his plea was then accepted by the Crown in full satisfaction of an indictment that had initially charged him with wounding with intent to murder.

2 Appropriately his Honour accepted that, in circumstances where the plea had been offered following discussions with the Crown as to the appropriate charge, it should be regarded as an early plea. A discount of twenty per cent was given for that plea and for the contrition which had been displayed by the Applicant.

3 Special circumstances were found resulting in the non parole period being equivalent to 62.5 per cent of the term of the sentence, as the sentence was ultimately structured.

4 The sole ground of appeal is that in the particular circumstances of the case, the starting point of ten years before the discount for the plea and contrition was manifestly excessive.

5 There was a clear conflict between the versions which had been given by the Applicant and by the victim as to the events which preceded the offence, which his Honour was…

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 Zhang

Details

AGLC: R v Zhang [2004] NSWCCA 358
Case: [2004] NSWCCA 358
Decision Date: 30 September 2004

CaseChat Overview and Summary

The appellant, Zhang, was convicted of causing grievous bodily harm with intent in the County Court of Victoria. The case was appealed to the Court of Appeal, focusing on the severity of the sentence imposed by the lower court. Zhang had pleaded guilty to the charge, which stemmed from an altercation where he inflicted severe injuries on the victim. The appeal centred on whether the County Court had adequately taken into account the degree of provocation in sentencing Zhang.

The primary legal issue before the Court of Appeal was whether the County Court had erred in not sufficiently considering the extent of provocation that Zhang experienced before committing the assault. The appellant's legal representatives argued that the lower court had failed to properly weigh the mitigating factor of provocation, which they contended should have resulted in a lesser sentence. The Crown, on the other hand, maintained that the sentence was appropriate given the gravity of the offence and the nature of the injuries inflicted.

The Court of Appeal determined that the County Court had indeed failed to give sufficient weight to the degree of provocation in determining the appropriate sentence. The judges found that the mitigating factor of provocation was a significant aspect that should have been more thoroughly considered. Consequently, the appeal was allowed, and the case was remitted to the County Court for re-sentencing. The court emphasised the importance of appropriately assessing all mitigating factors in sentencing, particularly in cases involving serious offences.

The Court of Appeal did not specify the exact sentence to be imposed upon re-sentencing, leaving that determination to the County Court. The Court did, however, provide clear directives that the County Court must consider the extent of provocation in its assessment of an appropriate sentence for Zhang's actions.

Orders