Zhao v R

[2016] NSWCCA 179

Court of Criminal Appeal (NSW)|2016-08-01|Before: Hoeben CJ, Button J, Adams J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2016-08-01

Before

Hoeben CJ, Button J, Adams J

Catchwords

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

Source

Original judgment source is linked above.

Catchwords

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

Judgment (22 paragraphs)

[1]

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.

[2]

[13]

Reasons

His Honour noted that this was a very significant fraud, in the commission of which multiple false identities were used. His Honour could not find beyond reasonable doubt that the offence was aggravated by a breach of trust within the meaning of s 21A of the CSP Act, as was urged by the Crown, observing that contractual parties are not usually regarded as being in a position of trust in relation to each other. His Honour then turned to the submissions on behalf of the applicant to the effect that there was little evidence of personal aggrandisement and that the applicant has been living in "straitened circumstances". There is evidence that some of the money obtained was used to pay a mortgage debt.
His Honour noted that there was a dearth of information as to why the applicant committed the offence. His Honour found that it "…required considerable planning and a degree of sophistication in the adoption of the various identities and it used extensive knowledge of the nature of international trade and bills of lading." His Honour further found that the offence was "very serious" and "a sophisticated piece of criminality" involving a large amount of money and a high degree of dishonesty.
Having noted the submissions of the parties pertaining to the effect of imprisonment on the applicant and her family members, his Honour considered that the circumstances of the applicant's offending nevertheless required a custodial sentence.
Her Honour made the following finding in relation to special circumstances within the meaning of s 44 of the CSP Act: "The offender is a relatively young woman. She has a young child. She has no prior criminal convictions. This will be her first time in gaol. She seems to be in some form of almost catatonic denial of the reality of her circumstances. I propose to find special circumstances. She will need assistance in re-entering the community. She will need assistance with her psychological difficulties and there are positive signs, so far as one can ascertain, of rehabilitation. She has expressed a form of remorse. I think that she would benefit from supervision and accordingly I propose to find special circumstances."
Following this finding of special circumstances the statutory ratio was varied by his Honour such that the non-parole period imposed comprised approximately 56% of the head sentence.

[16]

Crown submissions

The Crown's principal response in relation to the first four grounds of appeal was to note that the applicant does not contend that any factual errors were made in the sentencing decision nor that the sentencing judge had failed to rely on any principle or relied upon any mistake of principle. Nor does the applicant expressly rely upon a ground asserting manifest excess. In these circumstances the applicant has failed to show error in the sense required to demonstrate that the sentencing discretion has miscarried: House v The King (1936) 55 CLR 499.
In respect of Ground 1 it was submitted that unless the applicant can demonstrate that a head sentence of three years was not open to his Honour in all the circumstances, in the sense of being manifestly excessive, there can be no error in the determination not to impose an ICO. This is because Parliament has prescribed a "ceiling" of two years' imprisonment for ICOs: see s 7 of the CSP Act.
In any event, the Crown submitted, a sentence of three years' imprisonment was clearly open having regard to his Honour's finding that the offence was a very serious example of fraud involving very large amounts of money. The matters relevant to the assessment of the objective seriousness of the offence were the degree of planning, the amount of money defrauded and the applicant's adoption of multiple false personae that were maintained even after the fraud was detected. The Crown submitted that the applicant's submissions do not take account of the weight that his Honour needed to afford to purposes of sentencing other than rehabilitation, including general deterrence and denunciation.
In respect of Grounds 2 and 3, the Crown noted that an assertion that a sentencing judge placed insufficient weight on a factor will not usually be enough in itself to impugn the exercise of the sentencing discretion. In any event, the factors upon which the applicant relies in support of Grounds 2 and 3, namely prospects of rehabilitation, need for supervision, and the effect of custody on the applicant and her son, were taken into account by the sentencing judge.
In respect of Ground 4, it was submitted that the sentencing judge was "clearly cognisant" of the issue of the separation between mother and child that a custodial sentence would inevitably cause, albeit that the separation was likely to be temporary. It would be implausible, it was submitted, to suggest that his Honour would have been unaware of the psychological effects of the separation. This is especially so having regard to the fact that his Honour had the psychological report under the hand of Mr Wood available to him. The Crown submitted that the sentencing judge took into account this factor.
In respect of Ground 5, the Crown submitted that the applicant has failed to show error in the sentencing discretion in the relevant sense. There is no entitlement to a specific discount for a plea of guilty, although the utilitarian value of a plea should generally be reflected by a 10-25% discount on sentence: R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. The primary consideration in determining the utilitarian value of a plea, and therefore the appropriate discount, is the timing of the plea.
The Crown noted that the applicant entered a plea of guilty close to two years after charge and at a time after her trial was listed to commence. In light of this, a discount of 10% was well within the exercise of his Honour's sentencing discretion. Finally, the Crown submitted that the applicant's contention that the discount was "lost in the sentencing process" cannot be sustained having regard to the findings of the sentencing judge.

[17]

Grounds 1, 2 and 3

Given that each of Grounds 1 to 3 contend that the sentencing judge did not give sufficient weight to certain matters, it is convenient to deal with them together.
This Court is a court of error. It is not sufficient, in order to establish a basis for the intervention of this Court, for an applicant to assert that a sentencing judge gave insufficient weight to one factor or another: Bullock v R [2016] NSWCCA 131 at [65]; Bland v R [2014] NSWCCA 82; 241 A Crim R 51 at 66 [112]-[113]; R v Kennedy [2016] NSWCCA 123. To impugn the exercise of the sentencing discretion, the applicant is required to demonstrate error of the type in House v The King. As Gleeson CJ, Gummow and Callinan JJ observed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]: "Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of a sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy.'"
His Honour considered that the circumstances of the applicant's offending required a custodial sentence despite her favourable circumstances. Implicit in this finding is that, in accordance with s 5(1) of the CSP Act, his Honour regarded no penalty other than imprisonment as appropriate in the circumstances. The finding of the sentencing judge that the appropriate sentence was one of three years' imprisonment necessarily excludes the possibility of the imposition of an ICO pursuant to s 7 of the CSP Act. The applicant does not contend that a sentence of three years' imprisonment was not one that was open to his Honour.
As for the complaint that there should have been a greater variation of the statutory ratio in light of a finding of special circumstances, the non-parole period imposed in this matter was 55% of the head sentence, not two thirds of the head sentence as was contended by Mr Quinn. This was already a significant departure from the statutory ratio. In any event such a variation is a discretionary matter for the sentencing judge. As Spigelman CJ stated in R v Cramp [2004] NSWCCA 264 (at [31]), "…the size of such an adjustment raises so many matters of a discretionary nature that this Court should be very slow to intervene."
Grounds 1, 2 and 3 have not been established.

[19]

Ground 5 - error in not giving a greater discount for pleading guilty

Any reduction in sentence made in recognition of the utilitarian value of a plea of guilty is a matter for the discretion of the sentencing judge. The principal consideration is the timing of a plea: De Angelis v R [2015] NSWCCA 197 at [55] per Simpson JA, with whom Button and Fagan JJ agreed. Usually a discount of 10% is allowed for a "late plea" on the first day of the trial.
The applicant entered a plea of guilty on 17 April 2014. Her trial had been listed to commence on 31 March 2014. The applicant thus pleaded guilty after her matter was first listed for trial. His Honour noted that, although the applicant's plea came at a late stage, it avoided the need for a trial involving matters that would have been difficult for a jury to comprehend. In these circumstances, the Crown conceded that a discount of 10% was appropriate. The applicant's contention that the sentencing judge should have given her a more significant discount in recognition of the utilitarian value of her plea of guilty is not made out. No error has been demonstrated.
At the hearing of this application Mr Quinn further submitted that the discount of 10% was "lost in the calculations." He submitted: "I will take your Honour really to the crux. Whilst I put forward all the five grounds, I take your Honour to the last ground which is that it would appear on the remarks that his Honour gave the applicant a 10 percent discount. Now in relation to the discount it's lost in the calculations. Did he give her a sentence of three years three months or did he give her a sentence of three years?"
The meaning of the submission that the discount was "lost in the calculations" was not clear. Mr Quinn denied that his submission was to the effect that his Honour failed to specify a notional starting point. Rather, he contended that there was no "transparency" in the process and that the 10% discount to which his Honour made reference was not carried over into the final sentence. This submission cannot be accepted.
The sentencing judge noted that he would allow a discount for 10% for the late plea. His Honour did not expressly nominate the starting point for the sentence before applying that discount. Despite this, the head sentence he imposed was one of 36 months after the discount of 10% had been applied. In these circumstances it is clear that the starting point for the head sentence was 40 months.
There is no requirement for a sentencing judge to expressly quantify the starting point of the sentence. Nor is there anything to suggest that his Honour failed to apply the discount to the sentence that was imposed on the applicant in this matter.
Ground 5 is not made out.

Zhao v R

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Judgment (22 paragraphs)

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Legislation Cited (3)

Cases Cited (12)

Cited By (15)