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Court of Criminal Appeal 13 April 2011

ZHI XIONG CHEN v REGINA

[2011] NSWCCA 85

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE ACTUAL USE OF A WEAPON MITIGATING FACTORS PRESENT PAROLE PERIOD RATIO IS WARRANTED USE OF STATISTICS

Citation: ZHI XIONG CHEN v REGINA [2011] NSWCCA 85
Court: Court of Criminal Appeal, NSW
Date: 13 April 2011
Judge(s): Macfarlan JA, Hoeben J, Garling J

Background

The appellant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900. The offence arose from a dispute over a refund of a fee paid to an immigration agent and matchmaker. The appellant, along with three other men including his de facto partner's relative, attended the victim's office in Haymarket and attacked him.

During the attack, the appellant produced a knife and stabbed the victim in the chest area while yelling threats. The victim fell to the floor and suffered a severe laceration to his right wrist, along with other wounds, requiring surgery. The appellant continued to punch and kick the victim while he lay bleeding on the floor.

The District Court sentenced the appellant to 5 years imprisonment with a non-parole period of 3 years. The sentence was imposed on 11 June 2010, after the appellant had been on bail following his arrest. He sought leave to appeal, contending the sentence was manifestly excessive and that a greater adjustment to the non-parole period ratio was warranted.

  • Whether the sentencing judge erred by not making a more substantial adjustment to the statutory non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentence imposed was outside the appropriate range and therefore manifestly excessive
  • Whether a table of comparative sentencing statistics demonstrated that the sentence was excessive

Decision

On the first ground, the Court found no appellable error in the sentencing judge's decision to adjust the ratio between the head sentence and non-parole period to the extent he did, but no further. The sentencing judge had accepted that special circumstances existed, justifying some departure from the standard ratio, and had made that adjustment. The Court reaffirmed that an appellate court is slow to intervene in the exercise of a sentencing discretion, applying the principles in House v The King (1936) 55 CLR 499. Garling J was "affirmatively satisfied" there was no reason for a greater adjustment than the one made.

On the second ground, the appellant relied heavily on a comparative table of 25 cases drawn from Judicial Commission statistics, submitting that the majority of those cases produced non-parole periods of three years or less. The Court treated that submission with caution. Offences under s 33 of the Crimes Act encompass a wide range of injuries and circumstances, making like-for-like comparisons between cases difficult and of limited utility.

The Court restated its earlier warnings against using statistical comparisons as a primary tool in sentence appeals. At most, other cases can form part of a range; they do not displace the sentencing judge's assessment of the individual facts. On a careful review of the comparative cases, the Court found the sentence fell comfortably within the permissible range of discretion. Neither ground of appeal succeeded.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing both grounds of appeal, the Court of Criminal Appeal confirmed that appellate intervention in sentencing discretion requires demonstrated error, not merely a different view of the appropriate outcome.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not mandate any particular quantum of adjustment to the non-parole period ratio; the extent of the adjustment remains a matter of judicial discretion.
  • Judicial Commission statistics and comparative case tables must be used with caution in sentence appeals, particularly for s 33 offences, which encompass widely varying circumstances and injury types.
  • No error was established where the sentencing judge weighed significant aggravating factors (actual weapon use, offending in company, planned conduct) against genuine mitigating factors (no prior convictions, good character, guilty plea, family responsibilities).
  • The Court reaffirmed the principle from R v George [2004] NSWCCA 247 that searching for and comparing sentences in other cases is "neither helpful or justified by authority" as a primary appellate tool.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)

Cases:
- House v The King (1936) 55 CLR 499
- R v George [2004] NSWCCA 247
- Heron v R [2006] NSWCCA 215
- Power v The Queen (1974) 131 CLR 623
- R v Simpson (2001) 53 NSWLR 704
- R v El Hayek (2004) 144 A Crim R 90
- R v Cramp [2004] NSWCCA 264
- Trad v R [2009] NSWCCA 56
- Quayle v R [2010] NSWCCA 16
- Caristo v R [2011] NSWCCA 7