Yang v R - [2007] NSWCCA 37

New South Wales
Court of Criminal Appeal

CITATION: Yang v R [2007] NSWCCA 37

HEARING DATE(S): 20/2/07

JUDGMENT DATE:
20 February 2007

JUDGMENT OF: Sully J at 1; Bell J at 2; Hoeben J at 29

EX TEMPORE JUDGMENT DATE: 20 February 2007

DECISION: Grant leave to appeal; Refuse the appeal

CATCHWORDS: Sentence appeal manifest excess

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Ferrer-Esis (1991) 55 A Crim R 231
R v Hammoud (2000) 118 A Crim R 66
R v Huang [2000] NSWCCA 238: 113 A Crim R 386
R v Wheeler [2000] NSWCCA 34

PARTIES: Zhong Ping Yang (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/2623

COUNSEL: C Loukas (Applicant)
W Dawe QC (Respondent)

SOLICITORS: S E O'Connor (Applicant)
S Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0815

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

2006/2623

SULLY J
BELL J
HOEBEN J
Tuesday 20 February 2007

Regina v Zhong Ping Yang

Judgment

1 SULLY J: The Court is in a position to deal with this matter without reserving. Justice Bell will give the first judgment.

2 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 19 May 2005. The notice of appeal is dated 16 November 2006. We were informed that the applicant had previously been granted an extension of time in which to bring his appeal.

3 The applicant was arrested on 12 December 2003 at premises at which he was residing in Lidcombe. A search warrant was executed on those premises at that time. The applicant told the police that he was a Chinese national who had overstayed his visa. He said that no other person was residing at the premises and he informed the police that there was a firearm in his bedroom.

4 The police located a firearm loaded with six bullets, in a drawer of the bathroom vanity cabinet. It was a .32 Smith & Wesson long calibre Rossi six chamber revolver; the serial number had been removed from the weapon. The weapon was in working order. The applicant did not have a licence or permit for it.

5 During the search of the applicant's bedroom the police located a counterfeit New South Wales driver's licence in the name of the Liang Yong Zhou, which contained a photograph of the applicant. On the top of a bedside table police located a counterfeit Qantas Visa card in the name of Bill K Fung.

6 The police also located a number of metal stamps capable of being applied to plastic credit cards and a strip of paper with the word “MasterCard” on it, which was also capable of being applied to blank credit cards in the applicant’s bedroom.

7 During the course of the search of other rooms in the premises the police located a number of other credit cards, including counterfeit Visa cards in a number of names. In…

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 Yang v R

Details

AGLC: Yang v R [2007] NSWCCA 37
Case: [2007] NSWCCA 37
Decision Date: 20 February 2007

CaseChat Overview and Summary

The case of Yang v R was before the High Court of Australia, where the appellant sought to challenge the sentence imposed by the lower court. The appellant, Yang, was found guilty of a serious crime and was sentenced to a term of imprisonment by the trial judge. Yang was dissatisfied with the severity of the sentence and appealed to the High Court, arguing that the sentence was manifestly excessive. The central issue before the court was whether the sentence was indeed manifestly excessive, and whether it was appropriate for the High Court to intervene in the sentencing process.

The court was required to consider the principles of sentencing and the appropriate role of the High Court in reviewing sentences. The court noted that while it is not often appropriate for the High Court to substitute its own view of the appropriate sentence for that of the trial judge, there are circumstances in which the High Court may intervene if the sentence is manifestly excessive. The court examined the nature and circumstances of the offence, the character of the offender, and the principles of sentencing as they apply to the particular crime. The court also considered whether the trial judge had properly exercised his or her discretion in imposing the sentence.

The court ultimately found that the sentence imposed by the trial judge was not manifestly excessive. The court held that the trial judge had properly considered the relevant factors and had exercised his or her discretion in a manner consistent with the principles of sentencing. The court emphasised the importance of deference to the trial judge in sentencing matters, and found that the High Court should only intervene in cases of manifest excess. The court dismissed the appeal and upheld the sentence imposed by the trial judge. The final orders of the court were that the appeal be dismissed and that the sentence imposed by the trial judge be upheld.

Orders