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Court of Criminal Appeal 18 December 2009

HAN, Zhi Qiang v R

[2009] NSWCCA 300

Fraud & dishonesty
CRIMINAL LAW APPEAL SENTENCE MANIFEST EXCESS PROPER RANGE OF SENTENCES USE OF STATISTICS

Citation: HAN, Zhi Qiang v R [2009] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 18 December 2009
Judges: Campbell JA, Howie J, Rothman J

Background

The applicant was the owner of a restaurant in Sydney who was convicted by a jury on two counts of demanding money with menaces under the Crimes Act 1900. Each count carried a maximum penalty of 14 years' imprisonment. The offences arose from two separate incidents in 2006 and 2007, in which the applicant and associates confronted an employee suspected of theft and, through threats of violence and property damage, coerced the employee into acknowledging a debt of $17,700.

The sentencing judge in the District Court imposed a term of 3 years' imprisonment with a non-parole period of 2 years for the first count, and a fixed term of 12 months wholly concurrent with the non-parole period for the second count.

On appeal, all grounds except manifest excess were abandoned. The applicant argued the sentences were too heavy, relying in part on statistical comparisons with sentences imposed in other similar cases.

  • Whether the sentences imposed were manifestly excessive, either individually or in their overall effect
  • Whether the sentencing judge erred in findings of fact underpinning the sentences (ultimately not pressed)
  • Whether there was a parity issue between the applicant's sentence and the lighter sentences received by co-offenders (ultimately not pressed)
  • What role sentencing statistics should properly play in determining whether a sentence falls within an appropriate range

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that the sentences were not manifestly excessive.

Rothman J, with whom Howie J agreed, acknowledged that the sentencing judge had taken an "unorthodox approach" by imposing what may have been a heavier sentence on the first count and then making the second count wholly concurrent. However, his Honour found that the sentence for the first count was not beyond the range available for the criminality involved, even when measured against the statistics presented. Even if the first count could be characterised as slightly heavy by statistical comparison, the overall sentence across both counts was not manifestly excessive, and quashing one count would require re-sentencing on both.

Rothman J went further, observing that the statistical range itself appeared to reflect sentences that were actually too low for the kind of criminality involved. The court declined to treat that range as setting a ceiling, finding that the subjective features of the offender provided no basis for imposing a lesser sentence.

Campbell JA wrote separately to address the role of sentencing statistics. His Honour confirmed that statistics can serve as a cross-check on whether sentencing principles are being correctly applied, but cannot in themselves define the proper range. Statistics obscure the objective facts and subjective circumstances of individual cases and may not cover the full range of circumstances in which an offence can be committed.

Orders Made

  • Leave to appeal the sentence imposed by Knox DCJ on 23 March 2009 was granted.
  • The appeal was dismissed.

Key Takeaways

  • Sentencing statistics can legitimately inform a sentencing judge about the range of sentences actually imposed, but they function at most as a cross-check, not as a definition of the correct range.
  • A sentence is not manifestly excessive merely because it sits above a statistical median, particularly where the court finds that the statistical range itself reflects sentences that are inappropriately lenient for the criminality involved.
  • Where two sentences are imposed for related but separate offences and the overall combined sentence is appropriate, the Court of Criminal Appeal will assess manifest excess by reference to the overall sentence, not each count in isolation.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the duty of a sentencing judge is to apply sentencing principles directly, including consideration of the maximum penalty and the relative seriousness of the particular offending conduct within the spectrum of possible contraventions.
  • An unorthodox structuring of concurrent sentences will not of itself give rise to a successful appeal where the overall sentence is within a proper range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)

Cases
- Johnson v R [2004] HCA 15; (2004) 205 ALR 346
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- Markarian v The Queen [2005] HCA 25; (2005) 222 CLR 357
- Mill v R [1988] HCA 70; (1988) 166 CLR 59
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v Araya [2005] NSWCCA 283
- R v F [2002] NSWCCA 320; (2002) 132 A Crim R 308
- R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
- R v Morgan (1993) 70 A Crim R 368
- R v Singh [2001] NSWCCA 424