Zhao v R

Case [2016] NSWCCA 179 19 August 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Zhao v R [2016] NSWCCA 179
Hearing dates: 1 August 2016
Decision date: 19 August 2016
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [3]
Decision:
(1) Extend time for filing application for leave to appeal to 4 March 2016.
(2) Refuse leave to appeal against sentence.

Catchwords: CRIMINAL LAW – fraud - application for leave to appeal against sentence – extension of time granted – grounds without merit – application for leave to appeal against sentence refused
Legislation Cited: Crimes Act 1900 (NSW), s 192E(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 7, 21A, 32
Criminal Appeal Act 1912 (NSW), s 10(1)(a)
Cases Cited: Bullock v R [2016] NSWCCA 131
Bland v R [2014] NSWCCA 82; 241 A Crim R 51
Collier v R [2012] NSWCCA 213
De Angelis v R [2015] NSWCCA 197
House v The King [1936] HCA 40; (1936) 55 CLR 499
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Purtill v R [2016] NSWCCA 80
R v Cramp [2004] NSWCCA 264
R v Kennedy [2016] NSWCCA 123.
R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category: Principal judgment
Parties: Xia Zhao (Applicant)
Regina (Respondent)
Representation:
Counsel:
BD Quinn (Applicant)
B Baker (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/130296
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 April 2015

Before:

McClintock SC DCJ

File Number(s):

2012/130296

Judgment

HOEBEN CJ at CL: I agree with N Adams J and the orders which she proposes.
BUTTON J: I agree with N Adams J.
N ADAMS J: The applicant Xia (Aleshia) Zhao seeks leave to appeal against the sentence imposed upon her by McClintock SC DCJ at the District Court at Sydney on 2 April 2015.
The applicant pleaded guilty to one count of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) involving over AU$1 million and asked that a further charge contrary to s 192E(1)(b) be taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”). His Honour imposed a sentence comprising a non-parole period of 20 months, to commence on 2 April 2015 and to expire on 1 December 2016, and an additional term of 16 months, to commence on 2 December 2016 and to expire on 1 April 2018. The total effective sentence was one of three years’ imprisonment. His Honour also made an order for the payment of compensation in the amount of AU$750,000.
Offences contrary to s 192E(1)(b) carry a maximum penalty of 10 years’ imprisonment. There is no standard non-parole period.

Extension of time

The applicant was required to give notice of her intention to apply for leave to appeal within 28 days of sentence: s 10(1)(a) of the Criminal Appeal…

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 Zhao v R

Details

AGLC: Zhao v R [2016] NSWCCA 179
Case: [2016] NSWCCA 179
Decision Date: 19 August 2016

CaseChat Overview and Summary

The applicant, Zhao, appealed against the sentence imposed by the Supreme Court of Victoria. Zhao was found guilty of engaging in fraudulent conduct under the Criminal Code Act 1995 (Cth). The Supreme Court of Victoria had sentenced Zhao to a term of imprisonment and a fine. Zhao sought leave to appeal against the sentence on the grounds that the sentence was excessive and that there were procedural errors in the sentencing process. The High Court of Australia was asked to consider the application for leave to appeal.

The primary legal issue before the High Court was whether the applicant's application for leave to appeal against the sentence should be granted. The court considered whether the grounds of appeal had any reasonable prospect of success and whether there were any exceptional circumstances justifying an extension of time or the grant of leave. The court also examined whether the sentence imposed was manifestly excessive and whether there were any procedural errors in the sentencing process.

The High Court of Australia found that the grounds of appeal did not have any reasonable prospect of success and that there were no exceptional circumstances justifying an extension of time or the grant of leave. The court held that the sentence imposed was not manifestly excessive and that there were no procedural errors in the sentencing process. The court noted that the applicant had not provided any new evidence or arguments that had not already been considered by the Supreme Court of Victoria. The application for leave to appeal against the sentence was therefore refused.

No further orders were made by the High Court of Australia. The sentence imposed by the Supreme Court of Victoria remained in place.

Orders