Citation: R v Zhang [2024] NSWDC 670
Court: District Court of New South Wales
Date: 28 November 2024
Judge: Neilson DCJ
Background
The offender, a 42-year-old Chinese national who had lived in Australia since 2017, pleaded guilty to breaking and entering a dwelling house at Auburn on 25 July 2023 and committing larceny while armed with a knife. The victims were a couple he described as his landlords. CCTV inside the unit alerted the victims to the intrusion in real time, and one of them returned home to find the offender attempting to flee over a fence.
After a chase lasting approximately 20 minutes, the offender removed a face mask and was recognised by the victims. He then produced a knife from a bucket he was carrying and threatened the victims, telling them not to chase him, causing them to fear for their lives. Police arrested him four days later.
Two further offences were placed before the court on a Form 1 (meaning the court took them into account when sentencing, without recording separate convictions). The first was an earlier break-and-enter at Narraweena on 17 July 2023, during which the offender stole $15,000 in cash while the occupant slept upstairs. The second was the threatening-with-a-weapon conduct during the Auburn chase, charged under s 33B of the Crimes Act 1900.
Legal Issues
- What sentence was appropriate for the primary offence of break-and-enter with larceny while armed, under s 112(2) of the Crimes Act 1900, carrying a maximum of 20 years imprisonment?
- What weight should be given to the offender's guilty plea, absence of prior criminal history, expressed remorse, and personal circumstances?
- Whether the offender's language barriers, cultural isolation, and limited family contact during custody constituted special circumstances justifying an adjustment to the non-parole period?
- What effect did the Form 1 offences, including the knife threat and the earlier Narraweena break-and-enter, have on the overall sentence?
Decision
Neilson DCJ confirmed that a full-time custodial sentence was unavoidable given the nature of the offending. The primary offence involved a premeditated break-and-enter of a home the offender knew well, committed while carrying a knife. The subsequent knife threat to prevent lawful apprehension was described by his Honour as "disturbing" and very serious, as it exposed members of the public to danger for attempting to do the right thing.
The court acknowledged several mitigating factors. The offender had no prior criminal history in New South Wales, had pleaded guilty, and had expressed what the court accepted as genuine remorse based on objective evidence. His Honour noted that the Sentencing Assessment Report also recorded some minimisation of the threats and a degree of blame-shifting toward the victims, but did not treat this as negating remorse entirely.
The court accepted that the offender faced meaningful additional hardship in custody compared to the typical prisoner. His limited English created barriers to programs and courses, he had almost no social interaction in his language group, and his family contact was restricted to a weekly phone call to his wife in China. The court also noted that the offender was a foreign national with Immigration Department interest, suggesting possible eventual deportation. These factors together supported a finding of special circumstances, warranting a non-parole period shorter than the statutory ratio would otherwise produce.
Orders Made
- The offender was convicted of break-and-enter with larceny in circumstances of aggravation (armed with a knife), contrary to s 112(2) of the Crimes Act 1900.
- Total sentence of 3 years and 9 months imprisonment imposed.
- Non-parole period of 2 years and 3 months, commencing 29 July 2023 and expiring 28 October 2025.
- Balance of sentence of 1 year and 6 months, commencing 29 October 2025 and expiring 28 April 2027.
- Special circumstances found, justifying the extended balance of sentence relative to the non-parole period.
- Form 1 offences (earlier Narraweena break-and-enter; threatening with a weapon to resist apprehension) taken into account.
Key Takeaways
- The District Court treated the production of a knife to resist lawful apprehension by members of the public as a seriously aggravating feature, warranting specific condemnation even where the conduct appeared on a Form 1 rather than as a separately convicted offence.
- A standard non-parole period of five years applies under s 112(2) of the Crimes Act 1900 for mid-range offending after a contested trial, and while not mechanically applied here, it functioned as a legislative benchmark for the gravity of armed break-and-enter.
- Language-based isolation in custody, inability to access rehabilitation programs due to a language barrier, and severely restricted family contact were accepted as genuine hardships capable of supporting a special circumstances finding and a reduced non-parole period.
- The court drew an inference that the offending was targeted, noting that the offender appeared to have known his victims and may have had prior knowledge of the cash stored at the Narraweena property, pointing to a degree of premeditation.
- Genuine remorse, a first offence, and a guilty plea remained significant mitigating factors, but their weight was moderated by the Sentencing Assessment Report's recording of minimisation and blame-shifting toward the victims.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2): break and enter with larceny in circumstances of aggravation, maximum 20 years imprisonment, standard non-parole period 5 years
- Crimes Act 1900 (NSW), s 33B(1)(a): threatening to use an offensive weapon to prevent lawful apprehension, maximum 12 years imprisonment
Cases cited: None cited in the judgment.