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
R v Klein (1989) 39 A Crim R 332
R v Robinson (1992) 62 A Crim R 374
Category: Sentence Parties: Rex (Crown)
Bichuan Zhang (Offender)Representation: Counsel:
Solicitors:
E James (Crown)
E Hile (Offender)
Legal Aid Commission (Offender)
Solicitor for Public Prosecutions (Cth) (Crown)
File Number(s): 2023/00237970 Publication restriction: none
JUDGMENT
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Mr Zhang appears for sentence regarding five offences contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
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The maximum penalty for each offence is 10 years imprisonment and a large fine.
Approach to Sentencing
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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).
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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.
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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].
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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)…
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- AGLC
- R v Zhang [2024] NSWDC 153
- Case
- [2024] NSWDC 153
- Decision Date
CaseChat Overview and Summary
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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