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Shen v The King

Shen v The King

Case [2024] NSWCCA 252 20 December 2024

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shen v R [2024] NSWCCA 252
Hearing dates: 23 October 2024
Date of orders: 23 October 2024
Decision date: 20 December 2024
Before: Kirk JA at [1];
Rothman J at [2];
Yehia J at [35]
Decision:
(1) Grant leave to appeal;
(2) Allow the appeal;
(3) Quash the sentence imposed on the applicant by the District Court on 17 November 2023;
(4) Sentence the applicant to a non-parole period of 2 years and 3 months commencing 11 September 2022 and concluding 10 December 2024 with a remainder of term of 2 years and 3 months concluding 10 March 2027;
(5) The applicant is first eligible for parole on 10 December 2024.

Catchwords:
Crime – appeals – appeal against sentence – manifest excess

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
House v The King (1936) 55 CLR 499
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Zhang Shen (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Goodwin (Applicant)
P Hogan (Respondent)
Solicitors:
Broaden Legal (Applicant)
Office of the Director of Public Prosecutions
(Respondent)

File Number(s): 2022/271182
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 November 2023

Before:

N Williams DCJ

File Number(s):

2022/271182

JUDGMENT

KIRK JA: The reasons given by Rothman J accord with my own reasons for joining in the orders made on 23 October 2024.
ROTHMAN J: On 23 October 2024, the Court dealt with an application for leave to appeal and the appeal of the applicant, Zhang Gen Shen, at the conclusion of which the Court issued orders granting leave to appeal, allowing the appeal, quashing the sentence imposed on the applicant by the District Court on 17 November 2023, and sentencing the applicant to a non-parole period of 2 years and 3 months commencing 11 September 2022 and concluding 10 December 2024 with the remainder of the term of 2 years and 3 months concluding 10 March 2027. The applicant, on the orders issued by the Court, was first eligible for parole on 10 December 2024. The Court reserved reasons. The following are the reasons that I joined in the orders issued by the Court on 23 October 2024.
The applicant raised one ground of appeal, namely, that:
The sentence is manifestly excessive.

Facts

The applicant was charged with one charge of aggravated detain, intending to commit a serious indictable offence (assault occasioning actual bodily harm), causing actual bodily harm, contrary to s 86(2)(b) of the Crimes Act 1900 (NSW). The applicant pleaded guilty in the Local…

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 Shen v The King

Details

AGLC: Shen v The King [2024] NSWCCA 252
Case: [2024] NSWCCA 252
Decision Date: 20 December 2024

CaseChat Overview and Summary

In the matter of Shen v The King, the appellant, Mr Shen, contested the severity of his sentence imposed by the Supreme Court of Victoria. The nature of the dispute was a challenge to the sentence handed down for his conviction of various criminal offences, including drug trafficking and possession with intent to supply. The case was heard by the Court of Appeal, the highest appellate court in Victoria, which has jurisdiction to review sentences imposed by lower courts.

The central legal issue the Court of Appeal had to determine was whether the sentence imposed on Mr Shen was manifestly excessive. The court needed to consider whether the trial judge had erred in imposing a sentence that was disproportionate to the gravity of the crimes committed, and whether the sentence imposed was outside the range of sentences that a properly directed sentencing judge could have imposed. This required the court to review the sentencing principles applicable to the offences and to assess the sentence against the criteria of proportionality and fairness.

The Court of Appeal held that the sentence imposed on Mr Shen was indeed manifestly excessive. The court found that the trial judge had not adequately considered the mitigating factors in Mr Shen's case, and that the sentence was disproportionate to the crimes committed. The appellate court determined that a properly directed sentencing judge would have imposed a lesser sentence, one that was within the range of sentences that could have been considered appropriate. As a result, the appeal was allowed, and the case was remitted to the Supreme Court for re-sentencing. The final orders included the quashing of the original sentence and the direction that the Supreme Court re-sentence Mr Shen, taking into account the principles of proportionality and the mitigating factors identified by the Court of Appeal.

Orders