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Zhang v R

Zhang v R

Case [2011] NSWCCA 233 26 October 2011

Criminal Liability

Sentencing

Plea of Guilty

Discount for Assistance

Contrition

Parole

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zhang v R [2011] NSWCCA 233
Hearing dates: 17 August 2011
Decision date: 26 October 2011
Before: WHEALY JA at 1
LATHAM J at 2
HARRISON J at 46
Decision:
Leave to appeal granted
Appeal dismissed

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - import commercial quantity of heroin and methylamphetamine - weight given to recent expressions of contrition must be slight - sentencing judge had regard to the applicant's evidence, co-operation and assistance on the question of contrition - discount for assistance and plea of guilty did not fall outside appropriate range - information assessed as low value and applicant caught committing the offence - applicant responsible for initiating and organising importation - applicant on parole for a similar offence - no lesser sentence warranted in law.
Legislation Cited: Criminal Code Act 1995
Crimes Act (Cth) 1914
Cases Cited: R v Thomson [2000] NSWCCA 309 ; 49 NSWLR 383
R v Sutton [2004] NSWCCA 225
R v Ellis (1986) 6 NSWLR 603
Tyler v R ; R v Chalmers [2007] NSWCCA 247
Danial v R [2008] NSWCCA 15
Ryan v The Queen [2001] HCA 21; 206 CLR 267
R v Barrientos [1999] NSWCCA 1
DPP v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
R v Holland [2011] NSWCCA 65;205 A Crim R 429
Category: Principal judgment
Parties: Zuy Lin Zhang - (Applicant)
Regina - (Respondent)
Representation: J Ghabrial / N Parsons - (Applicant)
P McDonald - (Respondent)
Commonwealth Director of Public Prosecutions - (Respondent)

File Number(s): 2009/11689
Decision under appeal

Date of Decision:

2010-07-30 00:00:00

Before:

King SC DCJ

File Number(s):

2009/11689

Judgment

WHEALY JA : I agree with Latham J.

LATHAM J : The applicant seeks leave to appeal against a sentence imposed by his Honour Judge King SC in the District Court on 30 July 2010 in respect of an offence of import commercial quantity of a border controlled drug, namely heroin and methylamphetamine, pursuant to s 307.1 of the Criminal Code Act 1995. The offence carries a maximum penalty of life imprisonment.

The applicant pleaded guilty to the offence at the Local Court. Following the application of a combined discount "in the order of 30%" for the plea of guilty and the provision of some assistance to the authorities, the applicant received a sentence of 14 years imprisonment, including a non-parole period of 9 years.

The facts upon which the judge sentenced the applicant were agreed between the parties. It is helpful to set them out in full, given the applicant's submissions in relation to the role that he played in the importation. They appear from the remarks in the following terms:

In late December 2008, information was received by the JACG in relation to the impending importation of a commercial quantity of crystal methyl amphetamine ("ice") into Australia. The JACG is the Joint Asian Crime Group, being a multi-agency task force of…

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 Zhang v R

Details

AGLC: Zhang v R [2011] NSWCCA 233
Case: [2011] NSWCCA 233
Decision Date: 26 October 2011

CaseChat Overview and Summary

Zhang v R involved an application for leave to appeal against sentence in a criminal case. The applicant, Zhang, was convicted of importing a commercial quantity of heroin and methylamphetamine. The appeal pertained to the severity of the sentence imposed, with Zhang arguing that various factors warranted a lesser punishment. The High Court of Australia was tasked with reviewing the sentence and determining whether the original decision was appropriate.

The legal issues before the court included whether the weight given to Zhang's expressions of contrition was excessive, whether the discount for his assistance and plea of guilty was justified, and whether the overall sentence was within the appropriate range. Additionally, the court had to consider whether Zhang's role in initiating and organising the importation, coupled with his prior conviction while on parole, supported the severity of the sentence.

The court found that the sentencing judge had appropriately assessed Zhang's evidence, co-operation, and assistance, and had correctly applied the principles of contrition. The judge considered the low value of the information provided by Zhang and the fact that he was caught in the act of committing the offence. The court also noted that Zhang was responsible for initiating and organising the importation and had a history of similar offences while on parole. Consequently, the court concluded that the sentence was within the appropriate range and no lesser sentence was warranted in law.

The court dismissed the application for leave to appeal, affirming the original sentence. The applicant's expressions of contrition, though acknowledged, were not given significant weight due to the nature of his criminal activity and prior history. The court found that the discount for assistance and plea of guilty was appropriate, and the overall sentence was justified under the circumstances.

Orders