Zeng v The King

Case [2023] WASCA 25


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ZENG -v- THE KING [2023] WASCA 25

CORAM:   QUINLAN CJ

MITCHELL JA

VAUGHAN JA

HEARD:   13 DECEMBER 2022

DELIVERED          :   10 FEBRUARY 2023

FILE NO/S:   CACR 24 of 2021

BETWEEN:   GUANG ZENG

Appellant

AND

THE KING

Respondent

FILE NO/S:   CACR 25 of 2021

BETWEEN:   GUANG ZENG

Appellant

AND

THE KING

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number            :   IND 944 of 2017


Catchwords:

Criminal law - Immigration - Appeal against conviction - Offences of a person who is not a registered migration agent receiving a fee for giving immigration assistance - Whether trial judge misdirected the jury as to the physical and fault elements of the offence - Whether verdicts of guilty on some counts were unreasonable or unsupported by the evidence - Whether trial judge erred in law in giving directions about the assessment of the credibility of witnesses whose evidence was interpreted

Criminal law - Sentencing - Whether total effective sentence for migration and other offences infringed the first limb of the totality principle

Legislation:

Criminal Code (Cth), s 5.2, s 5.4, s 5.6, s 400.6
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 21(4)
Migration Act 1958 (Cth), s 276, s 281

Result:

Appeal against convictions dismissed
Appeal against sentence allowed
Appellant resentenced

Category:    B

Representation:

CACR 24 of 2021

Counsel:

Appellant : J D Edwardson KC and F P Merenda
Respondent : M D Howard SC and A J C Mossop

Solicitors:

Appellant : The Defence Lawyers
Respondent : Director of Public Prosecutions (Cth)

CACR 25 of 2021

Counsel:

Appellant : J D Edwardson KC and F P Merenda
Respondent : M D Howard SC and A J C Mossop

Solicitors:

Appellant : The Defence Lawyers
Respondent : Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728

de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Gaio v The Queen (1960) 104 CLR 419

Gibbs v The State of Western Australia [2018] WASCA 68

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Kabambi v The State of Western Australia [2019] WASCA 44

La Fontaine v The Queen (1976) 136 CLR 62

M v The Queen (1994) 181 CLR 487

Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6

R v Dookheea [2017] HCA 36; (2017) 262 CLR 402

R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362

R v Pham [2015] HCA 39; (2015) 256 CLR 550

R v Wanna (1997) 42 NSWLR 1

R v Wanna [1998] NSWSC 30

Roffey v The State of Western Australia [2007] WASCA 246

Wells v The State of Western Australia [2017] WASCA 27

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Details
AGLC
Zeng v The King [2023] WASCA 25
Case
[2023] WASCA 25
Decision Date

CaseChat Overview and Summary

The appellant, Zeng, appeals against her conviction and sentence in respect of offences under the Migration Act, Passports Act, and Criminal Code. The appellant was convicted of nine offences, including providing immigration assistance while not being a registered migration agent, charging fees for immigration assistance without being a registered migration agent, and engaging in financial transactions to facilitate unlawful non-citizen migration. The appellant was sentenced to a total effective sentence of 6 years and 6 months' imprisonment, with a non-parole period of 4 years and 6 months. The appellant appeals against her conviction on three grounds, including an alleged error of law by the trial judge in directing the jury on evidence given through interpreters and an alleged error of law in misdirecting the jury as to the elements of the migration offences. The appellant also appeals against her sentence on the ground that it violates the first limb of the totality principle.

The court found that none of the grounds of appeal against conviction were established. The court found that the trial judge did not err in directing the jury on evidence given through interpreters and that there was no error of law in the jury directions regarding the elements of the migration offences. The court found that the guilty verdicts were supported by the evidence. The court found that the appellant's sentence violated the first limb of the totality principle as the cumulative effect of the sentences imposed was excessive. The court found that the total effective sentence of 6 years and 6 months' imprisonment was manifestly excessive and that the appropriate total effective sentence should be 4 years and 9 months' imprisonment, with a non-parole period of 3 years and 2 months. The appeal against conviction was dismissed, and the appeal against sentence was allowed. The appellant was resentenced to a total effective sentence of 4 years and 9 months' imprisonment, with a non-parole period of 3 years and 2 months.

Orders

Orders of the court

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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

In these reasons, we shall refer to the offences against s 281(1) of the Migration Act as the migration offences. We shall refer to the offence against s 21(4) of the Passports Act as the passports offence. We shall refer to the offence against s 400.6(1) of the Code as the money offence. On 4 February 2021, the appellant was sentenced to a total effective sentence of 6 years 6 months' imprisonment with a non-parole period of 4 years 6 months. The sentences were backdated to 26 November 2020 to take account of time spent in custody on remand. The sentencing court also made a reparation order and a forfeiture order. The individual counts on the indictment, and the sentences imposed for each count, are summarised in the following table: The appellant now appeals against her convictions and sentences in respect of the above offences. The appellant appeals against her convictions on the following three grounds:[10]1.The trial judge erred in law by directing the jury to consider certain matters in relation to evidence given through interpreters.2.The trial judge made an error of law by misdirecting the jury as to the elements of the migration offences.3.The guilty verdicts in relation to counts 1, 2, 3, 4 and 8 were unreasonable or unsupported by the evidence.[10] A fourth ground, alleging that the quality of interpretation provided by an interpreter at the trial occasioned a miscarriage of justice, was abandoned at the hearing of the appeal: see appeal ts 149. A number of associated applications to adduce additional evidence in the appeal (dated 31 October 2022 and 24 November 2022) therefore fell away. The appellant appeals against her sentence on the sole ground that the total effective sentence of 6 years 6 months' imprisonment violates the first limb of the totality principle. The applications for leave to appeal on the above grounds have been referred to the hearing of the appeal.[11][11] Order of Buss P in CACR 24 of 2021 made on 13 July 2021; Order of Buss P in CACR 25 of 2021 made on 13 July 2021. For the following reasons, none of the grounds of appeal against conviction are established and the appeal against conviction should be dismissed. The ground of appeal against sentence is established. The appeal against sentence should be allowed and the appellant resentenced to a total effective sentence of 4 years 9 months' imprisonment with a non-parole period of 3 years 2 months. Part 3 of the Migration Act regulates the registration of migration agents and the giving of immigration assistance. Division 3 of pt 3 makes provision for the registration of migration agents by the Migration Agents Registration Authority. Requirements for registration generally include the holding of prescribed qualifications (s 289A), that the applicant is a fit and proper person to give immigration assistance and that the applicant is a person of integrity (s 290). Division 2 of pt 3 creates a number of offences relating to the provision of immigration assistance by persons not registered as a migration agent. These offences include, in very general terms, giving immigration assistance while not being a registered migration agent (s 280), charging fees for immigration assistance by a person who is not a registered migration agent (s 281), falsely representing that a person is a registered migration agent (s 283) and advertising that a person who is not a registered migration agent gives immigration assistance (s 284 and s 285).