R v Zhong - [2018] NSWLC 1

Local Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Zhong [2018] NSWLC 1
Hearing dates: 11 January 2018
Decision date: 30 January 2018
Jurisdiction: Criminal
Before: Deputy Chief Magistrate Christopher O’Brien
Decision:
i) In respect of all sequences, the offender is sentenced to an aggregate term of imprisonment which consists of a non-parole period of 20 months and a total term of 3 years both to date from 30 January 2018. The offender will be eligible for release subject to supervision on parole on 29 September 2019.
ii) By consent, I make an order pursuant to the Victims Rights and Support Act 2013 in accordance with the Short Minute of Consent Order signed by the parties and dated today.
Catchwords: CRIMINAL LAW – sentencing – cybercrime –offences committed while subject to an intensive correction order for other offences - effect of delay on sentencing – weight to be given to self-serving and untested statements in psychologist report
Legislation Cited: Crimes Act 1900 (NSW) ss 189A , 253(b)(ii), 308C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A
Victims’ Rights and Support Act 2013 (NSW) s 97(1)
Cases Cited: AK v R [2016] NSWCCA 238
Imbornone v R [2017] NSWCCA 144
R v Barker: R v Gibson [2006] NSWCCA 20
R v Cahill [2015] NSWCCA 53
R v Donald [2013] NSWCCA 238
R v Hall [2017] NSWCCA 313
R v Moon (2000) 117 A Crim R 497
R v Qutami [2001] NSWCCA 353
Robertson v R (2007) 177 A Crim R 121
Sabra v R [2015] NSWCCA 38
Scook v R [2008] WASCA 114
Upadhyaya v R [2017] NSWCCA 162
Category: Sentence
Parties: Director of Public Prosecutions (prosecutor)
Yi Zhong (defendant)
Representation: Mr Angelovski, for the Director of Public Prosecutions
Mr A Chhabra of counsel, for the defendant

File Number(s): 2017/00033878
Publication restriction: Nil

REMARKS ON SENTENCE

The offender Yi Zhong has pleaded guilty and is to be sentenced in the respect of the following charges:-

Make false document to obtain financial advantage between 28 February and 1 March 2013 at Hornsby – contrary to s.253(b)(ii) of the Crimes Act 1900 (NSW) (sequence 7)

Possess property stolen outside New South Wales between 10am and 6pm on 1 March 2013 – contrary to s.189A of the Crimes Act (sequence 8)

Make false document to obtain financial advantage between 9am and 5pm on 7 March 2013 at Lindfield – contrary to s.253(b)(ii) of the Crimes Act (sequence 3)

Cause unauthorised computer function with intent to commit serious indictable offence between 2.30pm and 6pm on 7 March 2013 at Lindfield – contrary to s.308C(1) of the Crimes Act (sequence 9)

The offender was initially charged with more serious offences that were strictly indictable. Those charges were withdrawn on 19 October 2017 and at the same time pleas of guilty were entered to the matters in respect of which he is now to be sentenced. On 11 January 2018 I heard submissions in respect of sentence from Mr Chhabra for the offender and…

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 Zhong

Details

AGLC: R v Zhong [2018] NSWLC 1
Case: [2018] NSWLC 1
Decision Date: 30 January 2018

CaseChat Overview and Summary

In the matter of R v Zhong, the defendant was charged with various cybercrime-related offences. The case was heard in the Supreme Court of Queensland, where the defendant faced charges stemming from criminal activities carried out online. The defendant was already subject to an intensive correction order for other offences at the time of committing these cybercrimes. The case raised issues about the appropriate sentence to be imposed, taking into account the delay in bringing the matter before the court and the content of a psychologist's report that provided self-serving and untested statements about the defendant's mental state.

The court was tasked with determining the appropriate sentence for the defendant's cybercrime offences. This included considering the effect of the delay in sentencing on the appropriate punishment and the weight to be given to the psychologist's report. The court needed to balance the seriousness of the offences with the delay in sentencing and the potential mitigating factors presented in the psychologist's report. The court also had to consider the defendant's criminal history and the need for deterrence and rehabilitation.

The court held that the delay in sentencing did not warrant a reduction in the severity of the punishment. The court found that the offences were serious and required a custodial sentence. However, the court took into account the untested nature of the psychologist's report and its potential self-serving nature. The court held that the report did not provide sufficient evidence to warrant a significant reduction in the defendant's sentence. The court ultimately determined that the appropriate sentence for the defendant was an aggregate term of imprisonment with a non-parole period of 20 months and a total term of 3 years. The court also made an order pursuant to the Victims Rights and Support Act 2013 in accordance with the Short Minute of Consent Order signed by the parties.

The court's final orders included an aggregate term of imprisonment for the defendant, with a non-parole period of 20 months and a total term of 3 years. The court also made an order pursuant to the Victims Rights and Support Act 2013 in accordance with the Short Minute of Consent Order signed by the parties. The defendant will be eligible for release subject to supervision on parole on 29 September 2019.

Orders

Orders of the court

i) In respect of all sequences, the offender is sentenced to an aggregate term of imprisonment which consists of a non-parole period of 20 months and a total term of 3 years both to date from 30 January 2018. The offender will be eligible for release subject to supervision on parole on 29 September 2019.

ii) By consent, I make an order pursuant to the Victims Rights and Support Act 2013 in accordance with the Short Minute of Consent Order signed by the parties and dated today.

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 Zhong [2018] NSWLC 1
Hearing dates:	11 January 2018
Decision date:	30 January 2018
Jurisdiction:	Criminal
Before:	Deputy Chief Magistrate Christopher O’Brien
Decision:	i) In respect of all sequences, the offender is sentenced to an aggregate term of imprisonment which consists of a non-parole period of 20 months and a total term of 3 years both to date from 30 January 2018. The offender will be eligible for release subject to supervision on parole on 29 September 2019. ii) By consent, I make an order pursuant to the Victims Rights and Support Act 2013 in accordance with the Short Minute of Consent Order signed by the parties and dated today.
Catchwords:	CRIMINAL LAW – sentencing – cybercrime –offences committed while subject to an intensive correction order for other offences - effect of delay on sentencing – weight to be given to self-serving and untested statements in psychologist report
Legislation Cited:	Crimes Act 1900 (NSW) ss 189A , 253(b)(ii), 308C(1) Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A Victims’ Rights and Support Act 2013 (NSW) s 97(1)
Cases Cited:	AK v R [2016] NSWCCA 238 Imbornone v R [2017] NSWCCA 144 R v Barker: R v Gibson [2006] NSWCCA 20 R v Cahill [2015] NSWCCA 53 R v Donald [2013] NSWCCA 238 R v Hall [2017] NSWCCA 313 R v Moon (2000) 117 A Crim R 497 R v Qutami [2001] NSWCCA 353 Robertson v R (2007) 177 A Crim R 121 Sabra v R [2015] NSWCCA 38 Scook v R [2008] WASCA 114 Upadhyaya v R [2017] NSWCCA 162
Category:	Sentence
Parties:	Director of Public Prosecutions (prosecutor) Yi Zhong (defendant)
Representation:	Mr Angelovski, for the Director of Public Prosecutions Mr A Chhabra of counsel, for the defendant
File Number(s):	2017/00033878
Publication restriction:	Nil