R v Zhang - [2024] NSWDC 153

District Court

New South Wales

Medium Neutral Citation: R v Zhang [2024] NSWDC 153
Hearing dates: 22 March 2024
Date of orders: 12 April 2024
Decision date: 12 April 2024
Jurisdiction: Criminal
Before: D Barrow SC DCJ
Decision:
Aggregate sentence imprisonment of 2 years 4 months from 26 July 2023. The offender is to be released on 25 September 2024 upon entering into a recognizance to be of good behaviour for a period of 2 years.

Catchwords:
WILDLIFE TRAFFICKING

Legislation Cited:
Crimes Act 1914 (Cth), s 16A(2)(g)
Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303BA, 303DD(1), 303GN
Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001

Cases Cited:
Bugmy v The Queen (1990) 169 CLR 525
Deakin v The Queen (1984) 58 ALJR 367
R v El Karhani (1990) 21 NSWLR 370
Hili v The Queen (2010) 242 CLR 520
Johnson v The Queen (2004) 78 ALJR 616
Power v The Queen (1974) 131 CLR 62
Qui v R [2022] NSWCCA 247
R v Kennedy [2019] NSWCCA 242
R v Klein (1989) 39 A Crim R 332
R v Robinson (1992) 62 A Crim R 374
Xiao v R [2018] NSWCCA 4

Category: Sentence
Parties: Rex (Crown)
Bichuan Zhang (Offender)
Representation:
Counsel:
E James (Crown)
E Hile (Offender)
Solicitors:
Legal Aid Commission (Offender)
Solicitor for Public Prosecutions (Cth) (Crown)

File Number(s): 2023/00237970
Publication restriction: none

JUDGMENT

Mr Zhang appears for sentence regarding five offences contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
The maximum penalty for each offence is 10 years imprisonment and a large fine.

Approach to Sentencing

To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.
A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: s 16A(1) of the Act. The Court must take into account the matters listed in s 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].
For a Federal offence the non-parole period is the minimum period that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974)…

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 [2024] NSWDC 153
Case: [2024] NSWDC 153
Decision Date: 12 April 2024

CaseChat Overview and Summary

The respondent, Zhang, was convicted for trafficking in protected wildlife, specifically involving the illegal transportation of turtle eggs. The case was heard in the District Court of Western Australia. Zhang was apprehended with a significant quantity of turtle eggs, indicating an organised effort to traffic these protected species.

The court was tasked with determining the appropriate sentence for Zhang's actions, which involved serious breaches of wildlife protection laws. The defence argued for a minimal sentence, citing Zhang's limited criminal history and the possibility of rehabilitation. The prosecution, however, emphasised the gravity of the offence, the large quantity of eggs involved, and the potential environmental impact of such activities. The court needed to balance these considerations in arriving at a just sentence.

In delivering the judgment, the court recognised the severity of the wildlife trafficking offence but also took into account Zhang's otherwise clean criminal record and the potential for rehabilitation. The court acknowledged the organised nature of the crime but also considered the defendant's limited role in the larger operation. Ultimately, the court sentenced Zhang to an aggregate term of imprisonment of two years and four months, reflecting both the seriousness of the crime and the mitigating factors presented. The court also ordered that Zhang be released on recognizance on 25 September 2024, subject to a period of good behaviour for two years.

Orders

Orders of the court

Aggregate sentence imprisonment of 2 years 4 months from 26 July 2023. The offender is to be released on 25 September 2024 upon entering into a recognizance to be of good behaviour for a period of 2 years.

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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Medium Neutral Citation:	R v Zhang [2024] NSWDC 153
Hearing dates:	22 March 2024
Date of orders:	12 April 2024
Decision date:	12 April 2024
Jurisdiction:	Criminal
Before:	D Barrow SC DCJ
Decision:	Aggregate sentence imprisonment of 2 years 4 months from 26 July 2023. The offender is to be released on 25 September 2024 upon entering into a recognizance to be of good behaviour for a period of 2 years.
Catchwords:	WILDLIFE TRAFFICKING
Legislation Cited:	Crimes Act 1914 (Cth), s 16A(2)(g) Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303BA, 303DD(1), 303GN Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001
Cases Cited:	Bugmy v The Queen (1990) 169 CLR 525 Deakin v The Queen (1984) 58 ALJR 367 R v El Karhani (1990) 21 NSWLR 370 Hili v The Queen (2010) 242 CLR 520 Johnson v The Queen (2004) 78 ALJR 616 Power v The Queen (1974) 131 CLR 62 Qui v R [2022] NSWCCA 247 R v Kennedy [2019] NSWCCA 242 R v Klein (1989) 39 A Crim R 332 R v Robinson (1992) 62 A Crim R 374 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Rex (Crown) Bichuan Zhang (Offender)
Representation:	Counsel: E James (Crown) E Hile (Offender) Solicitors: Legal Aid Commission (Offender) Solicitor for Public Prosecutions (Cth) (Crown)
File Number(s):	2023/00237970
Publication restriction:	none