R v Zhang - [2005] NZCA 120

IN THE COURT OF APPEAL OF NEW ZEALAND
CA56/05
THE QUEEN
v
JIN LONG ZHANG
Hearing:24 May 2005

Court:Robertson, Williams and Salmon JJ
Counsel:A C Roberts for Appellant

M F Laracy for Crown

Judgment:24 May 2005

JUDGMENT OF THE COURT

A LEAVE TO APPEAL GRANTED.
BSentence quashed and replaced with a sentence of four and a half years’ imprisonment.

REASONS
(Given by Robertson J)
Introduction
[1]        This is an application by the Solicitor-General for leave to appeal against an effective sentence of three and a half years’ imprisonment imposed upon Mr Zhang in the District Court at Auckland on 19 January 2005. The application is on the basis that the sentence imposed is wrong in principle in that the District Court Judge gave the respondent a discrete discount of 12 months, solely on account of the fact that, immediately upon the respondent finishing his sentence, he will be deported to China.
[2]        The Solicitor-General’s application was initially filed in error in the District Court. By the time that was drawn to attention and it was re-filed, the application for leave was marginally out of time. Mr Roberts responsibly did not seek to make anything of the point as it was common ground that his client knew that the Crown intended to mount a challenge.
[3]        Mr Zhang was charged with six counts arising out of an incident at Auckland on 25 February 2004. There was a charge of kidnapping (contrary to s 209 of the Crimes Act 1961), one of being disguised for the purposes of committing that offence (contrary to s 233 of the Crimes Act), using a pistol in the commission of that offence (contrary to s 198B of the Crimes Act), aggravated robbery (contrary to s 235 of the Crimes Act), aggravated assault (contrary to s 192 of the Crimes Act) and possession of an air pistol (contrary to s 45 of the Arms Act 1983).
The facts of the case
[4]        The sentencing Judge described the factual background as follows:
[2] The facts disclose that prior to the commission of this offence you acquired a Russian model imitation NP654 firearm and a pair of handcuffs, that firearm being capable of discharging ball-bearing pellets by the force of compressed gas. There was obviously a degree of planning in this because you sought out a venue at a local karaoke bar well known as a favourite spot for Asian students.
[3] On Tuesday 24 February you drove your Toyota car to a parking area opposite that bar in Newmarket keeping the front entrance of the bar under observation. At about 1.00am on the morning of the 25^th the victim left the bar with three friends and they went their separate ways. The victim got into her vehicle, you approached, holding the firearm in your hand. You were at the time disguised wearing what is described as a crude makeshift hood covering your head and face. You presented the firearm to the victim. She was obviously at this…

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 R v Zhang

Details

AGLC: R v Zhang [2005] NZCA 120
Case: [2005] NZCA 120
Decision Date: 24 May 2005

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Jin Long Zhang presented a challenge to the sentencing of the appellant, Zhang, by the District Court at Auckland. Zhang had been sentenced to three and a half years' imprisonment for various charges including kidnapping, aggravated robbery, and possession of an air pistol. The Crown, represented by the Solicitor-General, sought leave to appeal on the basis that the District Court had improperly granted Zhang a 12-month discount in his sentence due to his impending deportation to China.

The legal issues before the Court were whether it was appropriate for the sentencing judge to consider the fact of Zhang's impending deportation as a mitigating factor in the sentence and whether this constituted an error in principle. The Crown argued that such a discount was contrary to established legal principles, undermined general deterrence, and resulted in a manifestly inadequate sentence. The Court had to determine if the sentencing judge was correct in law and if the discount was justified under the circumstances.

The Court found that the sentencing judge had erred in reducing Zhang's sentence by 12 months due to his impending deportation. The Court cited previous decisions that emphasized the separation between criminal sentencing and immigration consequences. It was held that the financial implications of detaining a non-resident and the potential deterrent effect on others were not relevant factors in sentencing. The Court quashed the original sentence and substituted it with a sentence of four and a half years’ imprisonment, effective from the date of the original sentencing.

Orders