Zeng v The Queen - [2005] NSWSC 1344

CITATION:
ZENG v R [2005] NSWSC 1344

HEARING DATE(S): 16 December 2005

JUDGMENT DATE :

16 December 2005

JURISDICTION:
Criminal

JUDGMENT OF:
McClellan CJatCL

DECISION:
Count of manslaughter; 1. Term of imprisonment for eight years with a non-parole period of four and a half years. The sentence to date from 24 April 2004, with the earliest date for release on parole being 23 October 2008 Count of possess a pistol; 1. Fixed term of eighteen months full time imprisonment to commence on 24 April 2004 and expire on 23 October 2005.

CATCHWORDS:
CRIMINAL LAW - manslaughter - possession of a firearm - Chinese national - substantially impaired by an abnormality of mind arising from depressive illness - little evidence of objective gravity - strong subjective case - early plea of guilty - offence out of character - remorse - gun not acquired in contemplation of offence - importance of deterrence - special circumstances found in sentencing

LEGISLATION CITED:
Crimes Act 1900 (NSW)

CASES CITED:
R v Hill (1981) A Crim R 397
R v Low (1991) 57 A Crim R 8

PARTIES:
Yini Zeng (offender)
The Crown

FILE NUMBER(S):
SC 2005/656

COUNSEL:
Dr P Power SC (Crown)
A Djemal (Offender)

SOLICITORS:
Director of Public Prosecutions (Crown)
Luminous Legal (Offender)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

McCLELLAN CJ at CL

FRIDAY 16 DECEMBER 2005

2005/656 ZENG, Yini v REGINA
JUDGMENT

1 HIS HONOUR: The offender, Yini Zeng, pleaded guilty upon arraignment to two charges on an indictment as follows:

1. On 24 April 2004 at Rockdale in the State of New South Wales, she did cause the death of Jing Yi Wang in circumstances amounting to manslaughter.

2 The maximum penalty for the offence of manslaughter is 25 years imprisonment. The maximum penalty in relation to the firearm offence is 14 years imprisonment.

3 A statement of agreed facts was tendered. It provides that Ms Jing Yi Wang, described as the victim, who was born in 1978, was the cousin of the offender. At the time of the manslaughter they were both students at the University of New South Wales, and had lived together for approximately twelve months in a rented two bedroom home unit at 9/19-21A Keats Avenue, Rockdale. The offender and the victim were sharing one bedroom.

4 Yu Wang, who was a cousin of the offender, also lived in the unit along with another person named Fei Wang. Yu Wang and Fei Wang were sharing the second bedroom.

5 Yu Wang gave evidence at the committal proceedings. The statement of Yu Wang dated 25 April 2004 was also read onto the record at the committal. At page 5-6 of the committal transcript of evidence of Yu Wang, it is recorded 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 Zeng v The Queen

Details

AGLC: Zeng v The Queen [2005] NSWSC 1344
Case: [2005] NSWSC 1344
Decision Date: 16 December 2005

CaseChat Overview and Summary

The case of Zeng v The Queen involved a Chinese national who was charged with manslaughter following the possession of a firearm. The central issue was whether the defendant's mental state, which was substantially impaired by an abnormality of mind arising from depressive illness, should be considered in the sentencing process. The defendant had little evidence of objective gravity in the offence but presented a strong subjective case, including an early plea of guilty, remorse, and the fact that the offence was out of character. Additionally, the firearm was not acquired in contemplation of the offence. The court had to weigh these factors against the importance of deterrence in its sentencing decision.

The court identified several legal issues to consider. These included the extent to which the defendant's mental health should mitigate the offence, the relevance of the early plea of guilty and remorse, and the absence of objective gravity in the offence. The court also had to consider the principle of proportionality in sentencing and the need to strike a balance between punishment and deterrence. The defendant's cultural background and the potential impact of deportation were also factors that the court had to consider.

In delivering its judgment, the court acknowledged the special circumstances of the case, including the defendant's impaired mental state, remorse, and the out-of-character nature of the offence. The court found that while the objective gravity of the offence was low, the subjective factors presented a strong case for mitigation. The early plea of guilty and the lack of intent to use the firearm in the offence further supported a lenient sentence. The court emphasised the importance of deterrence but balanced this with the special circumstances present. Ultimately, the court decided to impose a sentence that reflected both the need for deterrence and the mitigating factors present in the case.

The court ordered that the defendant be sentenced to a term of imprisonment, taking into account the substantial impairment of the defendant's mental state and other mitigating factors. The exact length of the sentence was not specified in the text but was determined to be proportionate to the offence while also considering the special circumstances. The court also noted that the defendant's cultural background and potential deportation were significant factors in the sentencing decision.

Orders