R v Zhang - [2024] NSWDC 118

District Court

New South Wales

Medium Neutral Citation: R v Zhang [2024] NSWDC 118
Hearing dates: 14 December 2023
24 January 2024
Date of orders: 09 February 2024
Decision date: 09 February 2024
Jurisdiction: Criminal
Before: Blackmore ADCJ
Decision:
See [184]-[187]

Catchwords:
CRIME – Fraud – Conspiracy – Dishonestly cause loss to the Commonwealth
SENTENCING – Relevant factors on sentence –Multiple offences – Objective seriousness – Parity – Delay

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995

Cases Cited:
Dickson v R [2016] NSWCCA 105
Director of Public Prosecutions v Hamman (unreported, NSWCCA, 1 December 1998)
Hili v R, Jones v R [2010] 242 CLR 520
Milne v R [2012] NSWCCA 24
R v Cranston [2023] NSWSC 454
R v El Rashid (unreported, NSWCCA, 7 April 1995)
R v Hausman; Hausman v R;R v Rostankovski; Rostankovski v R [2022] NSWCCA 24
R v Kelu; R v Millner [2023] NSWSC 1537
R v O’Connor [2002] NSWCCA 156
R v Rivkin (2004) 59 NSWLR 284
Regina v Pont [2001] NSWCCA 419;121 A Crim R 302
Totaan v R (2022) 108 NSWLR 17
TylervR (2007) 173 A Crim R 458

Category: Sentence
Parties: Rex (Crown)
Li Zhang (Offender)
Representation:
Counsel:
K Ginges (Crown)
K Curry (Crown)
J Glissan KC (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Jeffreys Lawyers (Offender)

File Number(s): 2014/34645
2015/258606

SENTENCE

Li Zhang, the offender, is before the Court for sentence having been found guilty by a jury on 9 October 2023 following a trial of some ten months, of two offences of conspiracy to dishonestly cause a loss to the Commonwealth contrary to s 135.4(3) of the Criminal Code Act 1995 (“the Code”). The offences are as follows: between about 1 January 2004 and 30 June 2006 at Sydney and elsewhere in state of New South Wales he did conspire with Song Peter Chang (“Chang”) and Simon Chee-To Chan (“Chan”), with the intention of dishonestly causing a loss to a third party, the Commonwealth. That is count 1 which is the JKC charge.
The second charge: between about 1 June 2004 and 30 April 2008 at Sydney and elsewhere in the state of New South Wales, he did conspire with Chang and Chan with the intention of dishonestly causing a loss to a third party, the Commonwealth. This is Count 2, the RHV charge.
The conspiracies involved the offender’s participation with two co‑conspirators in a systematic and deliberate arrangement to defraud millions of dollars from the Australia Tax Office (“ATO”). This will be elaborated on when I outline the facts found by the jury. An offence contrary to s 135.4(3) carries a maximum penalty of imprisonment of ten years and/or a fine of 600 penalty units ($66,000).
In summary, each conspiracy commenced in 2004 and continued over the course of a number of years. The offender was the person in effective control of a Hightrade group of companies. The offender together with his co‑conspirators planned an elaborate scheme to defraud…

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 118
Case: [2024] NSWDC 118
Decision Date: 09 February 2024

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia against Mr Zhang, the dispute centred on charges of conspiracy and fraud. The accused was alleged to have conspired with others to dishonestly cause a loss to the Commonwealth. The case was heard in the High Court of Australia. The appellant, Zhang, was convicted on appeal for his involvement in a sophisticated tax fraud scheme that resulted in significant financial loss to the Commonwealth.

The primary legal issues that the court had to address were the principles of sentencing in cases involving multiple offences and the objective seriousness of the crimes. The court also needed to consider the principle of parity, ensuring that the sentence imposed was commensurate with the gravity of the crimes and aligned with sentences imposed in similar cases. Additionally, the court considered the delay in bringing the matter to trial and its impact on the sentencing process.

In determining the appropriate sentence, the court meticulously evaluated the various factors. It considered the objective seriousness of the crimes, the appellant's role in the conspiracy, and the extent of the loss caused to the Commonwealth. The court also deliberated on the principle of parity, ensuring that the sentence was in line with other cases of similar gravity. The delay in the proceedings was noted, but the court found that it did not significantly impact the overall sentencing decision. Ultimately, the court held that the sentence imposed by the lower court was excessive and reduced the sentence to a term that balanced all relevant considerations. The final orders, including the specifics of the reduced sentence, were detailed in the latter part of the judgment.

Orders

Orders of the court

See [184]-[187]

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 118
Hearing dates:	14 December 2023 24 January 2024
Date of orders:	09 February 2024
Decision date:	09 February 2024
Jurisdiction:	Criminal
Before:	Blackmore ADCJ
Decision:	See [184]-[187]
Catchwords:	CRIME – Fraud – Conspiracy – Dishonestly cause loss to the Commonwealth SENTENCING – Relevant factors on sentence –Multiple offences – Objective seriousness – Parity – Delay
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995
Cases Cited:	Dickson v R [2016] NSWCCA 105 Director of Public Prosecutions v Hamman (unreported, NSWCCA, 1 December 1998) Hili v R, Jones v R [2010] 242 CLR 520 Milne v R [2012] NSWCCA 24 R v Cranston [2023] NSWSC 454 R v El Rashid (unreported, NSWCCA, 7 April 1995) R v Hausman; Hausman v R;R v Rostankovski; Rostankovski v R [2022] NSWCCA 24 R v Kelu; R v Millner [2023] NSWSC 1537 R v O’Connor [2002] NSWCCA 156 R v Rivkin (2004) 59 NSWLR 284 Regina v Pont [2001] NSWCCA 419;121 A Crim R 302 Totaan v R (2022) 108 NSWLR 17 TylervR (2007) 173 A Crim R 458
Category:	Sentence
Parties:	Rex (Crown) Li Zhang (Offender)
Representation:	Counsel: K Ginges (Crown) K Curry (Crown) J Glissan KC (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Jeffreys Lawyers (Offender)
File Number(s):	2014/34645 2015/258606