R v Zhang

[2024] NSWDC 670

District Court

New South Wales

Medium Neutral Citation:	R v Zhang [2024] NSWDC 670
Hearing dates:	28 November 2024
Date of orders:	28 November 2024
Decision date:	28 November 2024
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See paras [29]-[30].
Catchwords:	CRIME – SENTENCE – Larceny – Circumstances of aggravation – Offensive weapon – Foreign national – Disadvantage due to language and cultural differences while incarcerated.
Legislation Cited:	Crimes Act 1900, ss 33B, 112(2).
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Sentence
Parties:	Crown – R (NSW) Offender – Hongtao Zhang
Representation:	Counsel: Crown – Mr Rosen, H. Offender – Mr Fung, S. Solicitors: Crown – Office of the Department of Public Prosecutions (NSW). Offender – S F Legal.
File Number(s):	2023/00241268
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: Hongtao Zhang stands for sentence as a consequence of pleading guilty to a charge that on 25 July 2023 at Auburn in this State he did break and enter the dwelling house of Ting Yu, situated at a unit at Macquarie Road, Auburn, and then in the said dwelling house did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that he was armed with an offensive weapon, namely a knife. That is an offence contrary to s 112(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years’ imprisonment.

2. Parliament has prescribed a standard non-parole period of five years which I would need to apply if the offender had pleaded not guilty, had been found guilty after trial and where the objective seriousness of the offence was in the mid-range. Although I do not and cannot apply it in this case, it is a guidepost to the seriousness with which the Parliament views this sort of offence.

3. The offender asks me to take into account on a Form 1 two other offences. The first offence is another offence contrary to s 112(2) of the Crimes Act 1900. The charge there is that on 17 July 2023, at Narraweena the offender did break and enter the dwelling house of Yanszhen, Huang and Xinyan Chen, situated at Cambridge Avenue, Narraweena, and in the said dwelling house did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that he knew that there was a person present within said dwelling house.

4. On a Form 1, the offender asks me to take into account an offence contrary to s 33B(1)(a) of the Crimes Act 1900. The offence is pleaded in this fashion:

"On 25 July 2023, at Auburn, he did threaten to use an offensive weapon with intent to prevent his lawful apprehension."

The maximum penalty for that offence is imprisonment for 12 years. There is no standard non-parole period.

Agreed Facts

First Matter on the Form 1

5. There is a statement of agreed facts. The first matter on the Form 1 concerns Ms Yanzhen Huang, who lived with her husband Cambridge Avenue, Narraweena. At 7.04am, on 17 July 2023, the offender arrived at that address, parking a car a short distance away from the front of 175 Alfred Street, Narraweena.

6. The offender then walked through the front garden of the victim's premises and walked down the side passage of the property and walked through a side gate, before gaining access to the property by cutting a hole in a fly screen and forcing entry through a window at the rear of the property. At the time, Yanzhen Huang was asleep in her bedroom upstairs. Once inside the premises, the offender proceeded to the front room downstairs which was used as a home office. The offender stole $15,000 from the bottom drawer of the victim's desk. She appears to have accumulated a large amount of cash in that bottom drawer. The offender then left the house, returned to his vehicle and drove away.

7. The victim was awoken by a large bang at 7.10am. However, she did not realise until about 8 o'clock, which is the time when she became alarmed, when she noticed the side gate open and the fly screen that had been slashed, with the glass window popped off its frame. She immediately went to her home office to check on her cash savings. Upon discovering that the cash was missing, she immediately called the police. The circumstances of this breaking, entering and stealing suggest that the offender may have known of the presence of the large wad of cash in the drawer of the desk in the home office.

Primary Offence

8. I turn now to the offence for which the offender stands for sentence. The victims on this occasion were Wang Yu and Ting Yu who lived in a unit at Macquarie Road, Auburn. The offender described this couple in his oral evidence this morning as his landlords. At approximately 2.45pm, on 25 July 2023, the offender broke into the premises by way of the back door. Once inside the unit, he walked through the living room and up towards the bedroom, setting off CCTV cameras inside the apartment, which sent a notification to Mr Yu's telephone. Mr Yu immediately checked the cameras and observed the offender walking through the living room and up the stairs at 2.45pm whilst holding a crowbar in his right hand and a bucket in his left hand.

9. The offender went to the victim's bedroom, damaging the door on the way in. He then ransacked the bedroom, stealing Ms Yu's white Swarovski watch, valued at roughly $1,000. Ms Yu called her husband, Mr Yu, informing him that the home had been broken into. She knew that because of the alert sent to her on the telephone. Mr Yu then entered his vehicle and drove straight home, arriving about 3 o'clock.

10. Upon arrival, Mr Yu stood in the middle of the front yard and observed the offender attempting to flee from the premises by jumping over a side fence. Mr Yu then proceeded to follow the offender who began running in an attempt to evade Mr Yu. In the meantime, Ms Yu returned home whilst her husband, Mr Yu, was chasing the offender and immediately began following her husband and the offender.

11. After approximately 20 minutes of being chased, the offender began to tire, at which point he removed a face mask that he was wearing, causing the victims to immediately recognise him. During the chase, Mr Yu saw that the offender was carrying a knife and attempted to call the police. After the offender took off his mask, he told the victims, "Don't call the police" and "Put phone down." Both those communications were in Mandarin. To Mr Yu, the offender said, "I have problems with my family, and I have to do this one." The offender then pulled the knife out of the white bucket he was carrying and threatened the victims, telling them, "Don't chase me." That caused the victims to fear for their lives. He then ran back to his car and drove away.

12. Police apprehended the offender at roughly 7.30am on 29 July 2023, following reports of a suspicious vehicle loitering around Alfred Street, Narraweena. Checks on the offender's licence and registration alerted arresting police that the offender was a person to be arrested, no doubt because he was identified to the police by Mr Yu and Ms Yu. The offender has been in custody since.

Second Matter on the Form 1

13. The offender, when he broke and entered and committed larceny in the home at Macquarie Road, Auburn, committed a serious criminal offence, a felony. That entitled the victims to seek to arrest the offender for the crime that he had committed. No doubt that was not on their mind. On their mind was the attempt to retrieve their property. However, that did not occur because whilst they were giving chase, the offender produced the weapon which caused them to desist in the chase and prevented their ability to arrest the offender as residents of this State for the offence that he had committed against the law of the State.

14. The second matter on the form 1, the offence contrary to s 33B of the Crimes Act 1900, is disturbing. No member of the public ought be threatened, either in his or her home or in a public place, because of seeking to do the right thing when the wrong thing had been done by the offender. The production of a knife to ward off being apprehended is a very serious offence.

Personal Circumstances

15. In Exhibit B, a Sentencing Assessment Report, are matters that were conveyed by the offender to the Community Corrections officer, Mr Duane Willoughby. Under the heading "Attitudes", Mr Willoughby recorded this:

"● Mr Zhang reported he [pleaded] guilty and had agreed to the police facts, indicating that he had already taken responsibility for his criminal behaviours and was aware what he was doing was wrong.

● He minimised the threats made towards the victims, shifting the blame onto the victim as they would not stop chasing him when he was escaping from the scene.

● Mr Zhang further discussed he had engaged in the offences to steal goods, as he could not think of any other option in order to finance his debt. He minimised the offences as he could only think about supporting his family at that time."

A little later, Mr Willoughby recorded this:

"He justified that the index offences were exclusively motivated for financial gain and that he only stole from people he knew, demonstrating his offences were targeted."

16. I know that the offender knew Mr Yu and Ms Yu, and I infer from the comment I made about the apparent targeting of the first breaking, entering and stealing at Narraweena - that that may have been a "inside job". It is hard to fathom why the offender only stole from those he knew, but that may have been because he was aware that those people had valuables to steal.

17. The offender has been apprehended and is in custody. There is little doubt that a full-time custodial sentence must be imposed. The offender has no earlier criminal history in this State. The offender is currently 42 years old. He is a native of mainland China. Although he has been here since 2017, a period of seven years, he professes an inability to comprehend English or to speak it. He speaks Mandarin. He married in 2005, and he and his wife have a daughter born to the couple in that year. The offender relocated to Australia in 2017 looking for better employment prospects than he had available to him in China.

18. He was interviewed on 22 November this year by AVL by a psychologist, Kerry Watson, who prepared a report bearing date 24 November 2024. The offender left school at the age of 15 in year 2 of mid-school which is the equivalent to year 8 in this State. He was not enjoying school. Thereafter, he worked in labouring positions in the construction industry for some ten years before operating his own "pig farming" business for some two years. He then returned to labouring roles in the construction industry for some three years before establishing a hospitality business that he operated for some five years. That business failed, and he amassed a large debt during the later years of seeking to operate that business. The offender told me today that he still owes approximately A$100,000 to the bank and others.

19. He came to Australia alone in 2017 at the age of 37 meaning to obtain higher paid employment. Since living in Australia, he has been consistently working in labouring roles in the construction industry. The psychologist confirmed that he has no ability to speak English and knows only a few people in Australia. Since being incarcerated, he has had no visit from anybody but has been able to speak weekly with his wife in China by telephone.

20. The offender's debt has been compounded by the fact that his daughter is now in the first year of a university course, and he has incurred a further debt for her educational needs. That debt is currently about A$25,000. The offender justifies his stealing because he needed money to repay debt because either he was earning less in Australia or the debt was increasing in China. I accept, however, that as a result of the penalty to be imposed upon him for these offences, the offender will be highly unlikely to commit any further offence.

21. I note that the Sentencing Assessment Report tells me that the offender has a low risk of re-offending according to methodology used by Community Corrections to make such assessments. The Community Corrections, however, cannot really assist in the offender's rehabilitation because of the "language barrier". However, Community Corrections believe that the offender is suitable to undertake community service work if some penalty other than full-time custody is to be considered.

Statistics and Comparable Cases

22. On behalf of the offender, Mr Fung has put before me a precis of 73 cases relating to sentences passed for aggravated breaking, entering and stealing. I have had regard to them and general regard to the sentencing statistics available from the Judicial Commission.

23. The matter which concerns me most is one to which I have already referred, that, although the offender stands for sentence for one count of aggravated breaking, entering and stealing, he asked me to take into account a similar offence committed a number of days earlier and also the offence of using an offensive weapon to prevent his lawful detention, the offence contrary to s 33B(1). In my mind, the matters on the Form 1 require a sentence of imprisonment which is somewhat longer than that normally imposed for breaking, entering and stealing.

Consideration

24. I start the sentencing exercise with a period of five years. It is common ground that the offender pleaded guilty at the earliest available opportunity, and he is entitled to a discount of 25% of the sentence otherwise to be passed upon him for this offence. That reduces the head sentence to three years and nine months. The offender is entitled to be admitted to parole using the statutory norm. The non-parole period should be three quarters of the head sentence. That would reduce the non-parole period to two years and nine months.

25. The offender was taken into custody at the time of his arrest rather than at the time that he went into the custody of Corrective Services on 30 July 2023. The sentence will accordingly commence on 29 July 2023. The remaining question is whether there is any special circumstance to warrant a lesser non-parole period. In his written submissions, Mr Fung said this:

"We submit that the Court can take into account the offender's lack of prior criminal conviction, which allows the Court to extend him a greater degree of leniency that he otherwise would receive, that this is his first period of incarceration he has ever endured, that he is under significant hardship due to language difficulties and lack of visits from friends and family and that based on the objective evidence before the Court, namely, expression of genuine remorse and lack of institutional re-offending, that he is likely to have good prospects of rehabilitation, subject to, assistance in reintegration into the community and possibly assistance in financial management."

26. On the other hand, I note from the Sentencing Assessment Report that the offender is a non-Australian citizen "for whom there is Immigration Department interest". Inferentially that suggests there may be a deportation eventually. However, I do accept that the offender has been and will continue to be disadvantaged in custody because, firstly the lack of anyone with whom to interact and to communicate, secondly his inability to undertake courses and the like because of the language barrier, and his limited access to his family - a weekly phone call to his wife in China.

27. In the circumstances, I intend to impose a non-parole period of two years and three months.

28. HIS HONOUR: Now, no one wants any further reasons, do they?

ROSEN: No. Thank you.

FUNG: Not from me, your Honour.

Sentence

29. HIS HONOUR: Hongtao Zhang, on the charge that on 25 July 2023 at Auburn in this State, you did break and enter the dwelling house of Ting Yu situated at Macquarie Road, Auburn, and then in the said dwelling house did commit a serious indictable offence, namely larceny, in circumstances of aggravation that you were armed with an offensive weapon, namely a knife, you are convicted.

30. I sentence you to imprisonment. I set a non-parole period of two years and three months, commencing on 29 July 2023 and expiring on 28 October 2025. I impose a further period of imprisonment of one year and six months to commence upon the expiration of the non-parole period and expiring on 28 April 2027. The total sentence is therefore three years and nine months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence, I have taken the matters on the Form 1 into account.

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Decision last updated: 13 May 2025