R v Zhang

This matter concerned an appeal by Mr Zhang against a sentence imposed by a lower court. Mr Zhang was found to have been a principal in an elaborate scheme to import large quantities of cigarettes and tobacco into Australia without paying the required duty, thereby defrauding the Commonwealth. The scheme involved the use of postal boxes opened using fraudulently obtained bank cards, and the importation of a significant number of parcels containing tobacco products. The total revenue evaded was substantial.

The legal issues before the Court of Criminal Appeal included whether the sentencing judge had erred in her consideration of the totality principle when sentencing Mr Zhang for multiple offences, and more broadly, whether the sentence imposed was manifestly excessive. The appeal also touched upon the consideration of the prospect of Mr Zhang's deportation and its impact on the sentence.

The Court considered the principle of totality, which requires a sentencing judge to ensure that the aggregate of sentences for multiple offences is a just measure of the total criminality and is not crushing. While the sentencing judge did not explicitly state she had "stood back" to consider totality, the Court found that this was not necessarily an error, particularly where a judge arrives at a total sentence without determining individual sentences separately. The Court also addressed the argument that the prospect of deportation should have been taken into account, concluding that the judge did not err in failing to do so, both in terms of the general burden of the sentence and the potential exercise of executive discretion.

Ultimately, the Court dismissed the appeal. It found that Mr Zhang was a principal in a serious scheme motivated by greed, involving substantial evasion of duty and the use of fraudulent means. While acknowledging Mr Zhang's youth, lack of prior convictions, contrition, early guilty plea, and offer of cooperation, the Court determined that these mitigating factors did not render the sentence manifestly excessive, especially given the importance of general deterrence in such cases and the significant criminality involved. The judge was found to have given appropriate weight to the mitigating factors in fixing a relatively short non-parole period.