The Court of Criminal Appeal has dismissed an appeal against sentence brought ... sentence is not a report under s 11 of
Judgment Summary Supreme Court New South Wales Court of Criminal Appeal Zhang v R [2018] NSWCCA 82 Hoeben CJ at CL, Fullerton J, Davies J The Court of Criminal Appeal has dismissed an appeal against sentence brought by Mr Si Ji Zhang. Mr Zhang pleaded guilty to knowingly take part in the supply of a large commercial quantity of a prohibited drug and was sentenced on 23 June 2017 to imprisonment for 9 years with a non-parole period of 6 years and 9 months. In May 2015 Mr Zhang and his co-offenders met with an undercover police operative in a car park. He was captured by surveillance cameras carrying a brown bag to the car the police operative was sitting in, with a co-offender carrying a second bag. Mr Zhang entered the vehicle and one of his co-offenders handed the two bags to the operative. Police intervened and located almost 2 kilograms of methylamphetamine. The issues on appeal were whether the sentencing judge erred by failing to note and take into account the plea of guilty and whether a failure to take into account genuine contrition and remorse led to a sentence that was excessively severe. The Court preliminarily dealt with a report made by the sentencing judge under s 11 of the Criminal Appeal Act in which he explained why he did not refer in his judgement to allowing a 25 per cent discount. The Court found that a report explaining reasons for arriving at a sentence is not a report under s 11 of the Criminal Appeal Act and the Court disregarded it in considering the appeal. The Court found that on the same day as the sentencing judge sentenced the applicant he also sentenced his co-offenders and in each of those reasons for sentence the sentencing judge specifically referred to and made allowance for a discount for an early plea of guilty. The Court also found the submissions on sentence were replete with references to the applicant’s guilty plea, which was only 4 days before judgment was handed down. The Court had to consider whether there was a real possibility that the plea was not properly taken into account and in this case there were enough references to a plea of guilty that there was no real possibility the sentencing judge did not apply the appropriate discount. The Court found that sentencing judges are entitled to treat reports expressing remorse with considerable scepticism in circumstances where the applicant does not give evidence in the sentence proceedings. It was open to the sentencing judge to reject the applicant’s letter to the court and his assertions to the pre-sentence reporter and psychologist as evidence of contrition and remorse, in absence of actual evidence from the applicant. This was especially so considering the applicant gave different accounts to the psychologist and to the author of the pre-sentence report. Leave to appeal was granted but the appeal was dismissed. This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
