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Zheng v R

Zheng v R

Case [2023] NSWCCA 64 22 March 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zheng v R [2023] NSWCCA 64
Hearing dates: 4 April 2022
Date of orders: 22 March 2023
Decision date: 22 March 2023
Before: Gleeson JA at [1]
Hamill J at [301]
Ierace J at [306]
Decision:
(1)   Grant leave to appeal against conviction and sentence.
(2)   Appeal against conviction dismissed.
(3)   Appeal against sentence allowed.
(4)   Set aside the sentence imposed by her Honour Payne DCJ on 21 May 2021.
(5)   In lieu, sentence Biyun Zheng to a term of imprisonment of one year and 10 months commencing on 22 March 2023 to be served by way of an Intensive Correction Order commencing on 22 March 2023 and expiring on 21 January 2025.
(6)   The Intensive Correction Order is subject to the following conditions:
(a)   the offender must not commit any offence; and
(b)   the offender must submit to supervision by a community service officer.
(7)   The applicant is to report on or before 5 April 2023 to the Parramatta office of Corrective Services NSW, or such other location as may be advised by the Commissioner for Corrective Services.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Judge alone trial — Whether judge’s verdict was open upon the whole of the evidence
CRIME — Appeals — Appeal against conviction — Whether failure to give sufficient reasons — Judge alone trial — Whether reasons for the verdict disclose a sufficient basis for findings of fact — Criminal Procedure Act 1986 (NSW), s 133(2)
CRIME — Appeals — Appeal against sentence — sentence of imprisonment of 2 years 6 months with non-parole period of 10 months — Whether sentence manifestly excessive — Applicant resentenced — Whether appropriate sentence of 2 years imprisonment should be served by way of an ICO – Whether term of imprisonment to be served by way of ICO should be adjusted and reduced in recognition of period of pre-sentence custody

Legislation Cited:
Crimes Act 1900 (NSW), ss 33(1)(a), 35(4), 418, 419
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4A, 4B, 5, 7, 21A, 24, 47, 66, 68, 71, 72, 73, 73A
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW), reg 187
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), 133(2)
Evidence Act 1995 (NSW), ss 38, 128

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Byrne v R [2020] NSWCCA 218
Clarke-Jeffries v R [2019] NSWCCA 56
Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Douglas v R [2012] HCA 34; (2012) 290 ALR 699
Elias v R [2006] NSWCCA 365
Filippou v The…

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 Zheng v R

Details

AGLC: Zheng v R [2023] NSWCCA 64
Case: [2023] NSWCCA 64
Decision Date: 22 March 2023

CaseChat Overview and Summary

Zheng appealed against his conviction and sentence, raising issues regarding the reasonableness of the verdict and the adequacy of reasons provided by the trial judge. The respondent, the Crown, argued that the verdict was open on the evidence presented and that the trial judge provided sufficient reasons for the verdict. The case was heard in the NSW Court of Criminal Appeal.

The court considered whether the trial judge's verdict was open upon the whole of the evidence. The court also examined whether the reasons provided by the trial judge were sufficient to establish a basis for the findings of fact. The applicant argued that the trial judge failed to provide adequate reasons for the verdict, which made it difficult to determine whether the verdict was open on the evidence. The Crown contended that the trial judge's reasons were sufficient and that the verdict was open on the evidence.

The court found that the trial judge's reasons were not sufficient to establish a basis for the findings of fact, and that the verdict was open on the evidence. The court held that the verdict was unreasonable, and quashed the conviction and sentence. The court also considered the sentence of imprisonment of 2 years 6 months with a non-parole period of 10 months, and found that it was manifestly excessive. The applicant was resentenced to a term of 2 years imprisonment to be served by way of an intensive correction order (ICO). The court adjusted and reduced the term of imprisonment to be served by way of ICO in recognition of the period of pre-sentence custody. The appeal against conviction was allowed, the conviction and sentence were quashed, and the applicant was resentenced to 2 years imprisonment to be served by way of an ICO with a reduction in the term to be served by way of ICO.

Orders