Shi v R - [2017] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shi v R [2017] NSWCCA 126
Hearing dates: On the papers
Date of orders: 08 June 2017
Decision date: 08 June 2017
Before: Hoeben CJ at CL; Harrison J and Bellew J at [1]
Decision:
1.   Grant leave to appeal.
2.   Allow the appeal.
3.   Remit the proceedings to the District Court of New South Wales for sentence according to law.

Catchwords: CRIMINAL LAW – appeal – application for leave to appeal against sentence – where sentencing proceedings miscarried due to a procedural irregularity – where appropriate that the applicant be sentenced in that Court according to law – matter remitted to the District Court for sentence
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Code 1995
Customs Act 1901
Cases Cited: Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25
Burbridge v R [2016] NSWCCA 128
Payda v R [2013] NSWCCA 109
Category: Principal judgment
Parties: Xiongjie Shi (Applicant)
Regina (Respondent)
Representation:
Counsel:
M C Ramage QC (Applicant)
W Abraham QC with A Avery-Williams (Respondent)
Solicitors:
Jeffreys Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/237819
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 June 2015

Before:

King SC DCJ

File Number(s):

2013/237819

Judgment

THE COURT: Xiongjie Shi was convicted following a trial before King SC DCJ and a jury of offences contrary to s 23BAA(4) of the Customs Act 1901 and s 11.2A(1) of the Criminal Code 1995. The trial spanned seven days between 24 March and 2 April 2015. In the course of his counsel’s closing remarks to the jury, on 1 April 2015, the applicant absconded. A bench warrant was issued for his arrest. The trial continued and he was convicted in his absence.
On 8 May 2015, the proceedings were listed before his Honour to discuss the progress of the matter. The Crown provided his Honour at that time with material upon which it proposed to rely on sentence. The sentencing proceedings subsequently proceeded on 19 June 2015 in the absence of the applicant. His Honour sentenced the applicant to imprisonment for 4 years with a non-parole period of 2 years and 6 months. However, his Honour did not specify a commencement date for the sentence. Rather, his Honour said that “[w]hen the offender is located, if ever, the sentence will be as indicated…and its commencement should be backdated by six days from the time of his apprehension or surrender”.
On 25 September 2015, his Honour had the matter relisted to correct an error with respect to the length of the non-parole period in his sentencing remarks. The applicant was once again not present.
The applicant was ultimately apprehended and arrested on 1 December 2015. He was brought back before the Court on 11 December 2015. The applicant’s counsel suggested at that time that…

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 Shi v R

Details

AGLC: Shi v The Queen [2017] NSWCCA 126
Case: [2017] NSWCCA 126
Decision Date: 08 June 2017

CaseChat Overview and Summary

The case of Shi v R involved an appeal against a sentence imposed on the applicant, Shi. The dispute centred on the procedural irregularities during the sentencing proceedings that led to a miscarriage of justice. The case was heard in the High Court of Australia, which has jurisdiction to hear appeals against decisions of lower courts, including sentencing errors. The applicant, Shi, sought leave to appeal against the sentence, arguing that the sentencing process was flawed and did not comply with legal standards.

The primary legal issue before the court was whether the procedural irregularities during the sentencing proceedings were so significant that they warranted a new sentencing hearing. The court was required to determine whether the irregularities were fundamental and whether the applicant's right to a fair sentencing process was compromised. Additionally, the court needed to consider whether it was appropriate to remit the matter to the District Court for a new sentencing hearing or whether the High Court should proceed with sentencing according to law.

The High Court found that the procedural irregularities during the sentencing proceedings were indeed substantial and had the potential to undermine the fairness of the sentencing process. The court held that the applicant's right to a fair sentencing hearing had been compromised. The court concluded that it was appropriate to remit the matter to the District Court for a new sentencing hearing, ensuring that the process would comply with legal standards. The High Court did not proceed with sentencing itself but instead directed that the District Court conduct the sentencing in accordance with the law.

The final orders of the court were that the application for leave to appeal against the sentence was granted, the original sentence was quashed, and the matter was remitted to the District Court for a new sentencing hearing. This outcome ensured that the applicant would receive a fair and lawful sentencing process, free from the procedural errors that had previously occurred.

Orders