ZHI XIONG CHEN v REGINA

Summary of Court Appearances 19As a consequence of his plea of guilty in the Local Court, the applicant was on 28 September 2009 committed to the District Court for sentence. 20On 11 December 2009, at the District Court in Sydney, the applicant indicated that he would not adhere to the plea of guilty which had been entered in the Local Court. Accordingly a trial date was fixed for 17 May 2010. 21On 22 January 2010, at the District Court in Sydney, that trial date was vacated at the request of the Crown and the matter was stood over for trial until 12 April 2010 so as to enable the trial to be joined up with that of the co-accused, Mr Ma. 22On 12 March 2010, the matter was listed at the District Court in Sydney, for mention and the indictment was filed. 23On 26 March 2010, a little less than three weeks before the trial was due to commence, the applicant entered a plea of guilty to the indictment.

Applicant's Submissions on Sentence in District Court 24The applicant agreed with the facts set out above. The applicant did not give evidence himself. But in addition to his agreement with the statement of facts, some further written evidence was tendered and his 18 year old stepdaughter gave oral evidence. The applicant's counsel made submissions. 25Counsel for the applicant conceded before the sentencing judge that there were a number of aggravating factors associated with the applicant's conduct which the sentencing judge ought to take into account in determining the appropriate sentence. These were the fact that the offence involved the actual use of a weapon, namely a knife, that the offence was committed in company, and that it was part of a planned criminal activity. Counsel for the applicant conceded, correctly, that none of those aggravating factors constituted an element of the offence. 26Counsel for the applicant submitted that there were a number of mitigating factors present to which the sentencing judge should have regard. He submitted that the applicant did not have any record of previous convictions, and that he was a person of good character who was a family man with a strong work history. He submitted that he was a man who exercised family and social responsibilities more generally in a responsible way. He submitted that the evidence of the applicant's stepdaughter demonstrated, together with a written reference from the applicant's neighbour, a retired medical practitioner, that the applicant had shown remorse for the offence. As well, counsel for the applicant relied upon the fact that the applicant pleaded guilty as being a mitigating factor which the Court ought take into account. 27Counsel for the applicant also submitted that the Court would make a finding in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999 that there were special circumstances such as to result in an adjustment of the statutory ratio between the sentence and the non-parole period. 28In terms of the assessment of the objective seriousness of the offence, counsel for the applicant submitted that the matter: " ... falls below the mid range of objective seriousness ". Counsel for the applicant nevertheless accepted that the matter was a serious one.

Subjective Features 29The applicant was born on 3 December 1958 and was aged 49 years at the time of the offence. 30He had no criminal convictions, and prior to this matter was of good character. 31The applicant first arrived in Australia in 1989 on a student visa to study English and management. He later studied commercial cookery and trained as a pastry chef. 32Before coming to Australia and whilst in China, the applicant had graduated from the China Textile University with a Bachelor of Science and had achieved a Diploma in Textile Engineering. He had apparently published books and articles relating to textile production, and prior to his emigration he was working in a management job in the textile industry in Shanghai. 33After arriving in Australia and undertaking his studies, the applicant moved to Griffith where he initially commenced working in a caf. After some years there he opened his own restaurant in Griffith which, because of the applicant's hard work, seems to have been a success. The applicant took an active part in the Griffith community. After his wife and family arrived in Australia and spent some time in Griffith, the applicant moved to Sydney where he engaged in a number of business projects including owning and operating a restaurant. He was a member of a number of business organisations including the Australian Institute of Management and the Australian Council of the International Chamber of Commerce. 34There was evidence before the sentencing judge that the applicant had engaged in works of charity and had actively supported charitable causes. 35The applicant, at the time of the offence, was in a long term domestic relationship and was responsible for six children although not all of those were his own. The youngest of his children at the time of sentencing were twins aged three years old.

Remarks on Sentence 36The sentencing judge carefully described the objective features of the offence, the extent of the injuries sustained by the victim, and fully summarised the applicant's subjective case. 37The sentencing judge drew these conclusions: (a) The offence was an objectively serious one in which the victim was subjected to a sustained and unprovoked ferocious attack by a number of individuals including the offender; (b) There were a number of aggravating features of the kind identified in s 21A(2) of the Crimes (Sentencing Procedure) Act including the applicant's use of a knife, the fact that the offence was committed in company, and the fact that the offence was a part of a planned or organised criminal activity; (c) Having regard to the injuries sustained by the victim and their consequence, together with the ferocity and nature of the attack, the offence fell: " ... just within the mid range of objective seriousness "; (d) The applicant had a strong subjective case; (e) Although the applicant did not give evidence, the sentencing judge accepted that genuine contrition and remorse had been expressed; (f) The applicant did not have any record of previous convictions, was a person of previous good character, who was unlikely to reoffend, and who had good prospects of rehabilitation. 38The sentencing judge found that the applicant was entitled to a discount of 15 per cent for the utilitarian benefit of his plea of guilty. 39The sentencing judge also found that the applicant would be receiving a custodial sentence for the first time and would require a longer period on probation to assist him to reintegrate into the community than would otherwise be provided by the statutory relationship between the non-parole period and the balance of the sentence term. Accordingly, he found that there were special circumstances. He concluded however that: " Such adjustment, in my view, however, need only be modest ".

Grounds of Appeal 40Two grounds of appeal were relied upon by the applicant: "1. A lesser sentence is warranted in law ... because the sentence judge erred in failing adequately to reflect his finding on special circumstances when he varied the statutory ratio identified in section 44(2) of the Crimes (Sentencing Procedure) Act 1999. 2. The sentence imposed was outside the appropriate range and therefore manifestly excessive."

Ground 1 41The gravamen of the submissions by the applicant with respect to this ground is that, once a finding of special circumstances was made, it was an error of the sentencing judge to make only a "modest adjustment" and that a much more substantial adjustment ought be made, namely, a non-parole period of one-half of the total term. 42The submissions point out that the difference between the sentence imposed by the sentencing judge and the statutory ratio, had a finding of special circumstances not been made, was 9 months, ie, 36 months as a non-parole period as opposed to 45 months. 43Whilst the reduction was 9 months, it actually represents a reduction of 20 per cent to the non-parole period which would otherwise have been imposed. However, the effect of the applicant's submission is that a non-parole period of no greater than 30 months ought to have been imposed, which would represent a reduction of 33 per cent in the non-parole period which would otherwise have been imposed. 44Principles applicable to the setting of the non-parole period of a sentence under s 44 of the Crimes (Sentencing Procedure) Act are well settled. 45The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of sentencing such as punishment, rehabilitation, the objective seriousness of the offence, and the offenders subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 627-629; R v Simpson (2001) 53 NSWLR 704 at [59]; Caristo v R [2011] NSWCCA 7 at [26]. 46A finding of special circumstances is a discretionary finding of fact in respect of which this Court is slow to intervene: R v El Hayek (2004) 144 A Crim R 90 at [103]; R v Cramp [2004] NSWCCA 264 at [31]; Quayle v R [2010] NSWCCA 16 at [41]. 47As well, the extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp at [31]; Trad v R [2009] NSWCCA 56 at [33]. 48In R v Cramp at [31], Spigelman CJ, with whom Hidden and Buddin JJ agreed, said of the issue of adjustment of the statutory ratio this: "In my view, the size of such an adjustment raises so many matters of a discretionary character that this court should be very slow to intervene." 49The issue both of what can constitute special circumstances, and the nature of the exercise involved in determining what non-parole period should be imposed, was also discussed in a decision of this Court, when it was constituted by a five member bench. In R v Simpson , Spigelman CJ said at [73]: "73 One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." Mason P, Grove J and Newman AJ agreed with the Chief Justice. 50This Court is always slow to intervene in challenges to such discretionary judgments of sentencing judges. Where it has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation: See Caristo at [35]. 51I express, with respect, my agreement with the remarks of R.A. Hulme J at [41] in Caristo , when he said that the focus of the sentencing exercise should not be "solely upon the percentage proportions that the non-parole and parole periods bear to the total term. The actual periods involved are equally, and probably more, important". 52Notwithstanding these authorities, senior counsel for the applicant provided the Court with a table of cases which recorded the percentage ratio between the total sentence and the non-parole period of the sentence. The table shows that for the cases listed the ratio varied between 75 per cent and 33.3 per cent. It is fair to say that most of these cases have a ratio between 50 per cent and 55 per cent. 53Without more the table is unhelpful. It demonstrates that, unless all of the facts are available, as well as the matters to which the Court had regard, no effective comparison can be made. If anything, the table demonstrates the wisdom of the remarks in the various cases to which I have drawn attention. 54O'Connor DCJ gave careful attention to determining what the appropriate non-parole period was and the effect of his finding of special circumstances. No error has been demonstrated with that finding of the kind that would warrant intervention by this Court: House v The King (1936) 55 CLR 499. 55On the contrary, I am affirmatively satisfied that there was no reason to alter the ratio to any extent greater than that which his Honour did. 56I would reject this ground of appeal.

Ground 2 57This ground submits that the sentence imposed was outside the appropriate range and therefore manifestly excessive. 58In large part, the submissions of senior counsel for the applicant in this Court suggest that reference to a table of a sample of 25 cases produced a range of sentences in which the majority received a non-parole period of 3 years or less. 59Statistics, of the kind provided in support of the applicant's submissions, must be used with caution when considering offences against s 33. Offences against s 33 are of a wide variety and include a diversity of injuries. As well, the circumstances giving rise to the offending are of significant diversity: Heron v R [2006] NSWCCA 215 at [54] per Hoeben J, Mason P and Kirby J agreeing. 60This Court has made plain on many occasions that there are limitations in the guidance which can be obtained from the use of Judicial Commission statistics, and from reference to other cases which each involve their own discrete facts and circumstances. 61This Court said in R v George [2004] NSWCCA 247 at [48]: "It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful or justified by authority: See Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994, and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98-101. At the most, other cases can do no more than become part of a range for sentencing ...". 62In any event, a careful review of the cases to which reference is made does not demonstrate that the sentencing judge was in any error. On the contrary, that review demonstrates that the sentence imposed falls within the range of the permissible exercise of the sentencing judge's discretion. 63I am not satisfied that the sentence in question was outside the appropriate range and manifestly excessive. I am not satisfied that some other sentence whether more or less severe is warranted in law. 64I would reject this ground of appeal. 65I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.

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