Zhang v Commissioner of Police
[2025] QDC 31
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- Unreported Judgment
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- Zhang v Commissioner of Police[2025] QDC 31
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Zhang v Commissioner of Police[2025] QDC 31
Zhang v Commissioner of Police[2025] QDC 31
DISTRICT COURT OF QUEENSLAND
CITATION: | Zhang v The Commissioner of Police [2025] QDC 31 |
PARTIES: | ZHANG, Bin (Appellant) v The Commissioner of Police (Respondent) |
FILE NO/S: | Appeal No. 336 of 2024 |
DIVISION: | Appellate |
PROCEEDING: | S 222 Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 14 March 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 February 2025 |
JUDGE: | Devereaux SC CJDC |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL – appeal pursuant to s 222 Justices Act 1886 (Qld) – appeal against sentence – where the appellant pleaded guilty to 20 charges of making a false declaration and 20 charges of fraud – where the appellant was sentenced to four months’ imprisonment wholly suspended and a six month disqualification from holding a driver’s licence – whether, having regard to the principle of equal justice, this sentence was excessive. |
LEGISLATION: | Justices Act 1886 (Qld), s 222, s 223 |
CASES: | Green v The Queen (2011) 244 CLR 462 |
COUNSEL: | D. Nguyen for the appellant. D. Giorgio for the respondent. |
SOLICITORS: | Ascent Lawyers for the appellant. Office of the Director of Public Prosecutions for the respondent. |
- [1]On 1 February 2024, the appellant pleaded guilty to 20 charges of making a false declaration and 20 charges of fraud.
- [2]The learned magistrate sentenced him to four months’ imprisonment wholly suspended for an operational period of 12 months. Necessarily, convictions were recorded. The appellant was also disqualified for six months from holding a driver’s licence.
- [3]He appeals against the sentence on the ground that it was manifestly excessive. The appeal, under s 222 of the Justices Act 1886 (Qld), is by way of rehearing on the evidence,[1] which comprises:
- schedule of charges;
- bench charge sheets;
- transcripts of the sentencing submissions and sentencing remarks including submissions and remarks in closed court; and,
- the exhibits tendered in the court below.
- [4]The appellant filed an outline and a supplementary outline. Each was responded to.
- [5]The appellant did not submit that the learned magistrate made any particular error. The submission was that when regard was had to other cases and the appellant’s cooperation with police, the sentence was excessive.
- [6]Upon my review of the record, I am satisfied the learned magistrate’s reasons were comprehensive, accurate and without error. The sentence was not excessive.
- [7]In the supplementary outline of argument, the appellant referred to decisions of magistrates sentencing other offenders for similar charges and submitted that the principle of equal justice required the reduction of the appellant’s sentence. That became the real issue in the appeal, although the primary ground of appeal – that the sentence was excessive – was maintained.
- [8]Upon consideration of the other cases referred to, I am not satisfied that the decisions of other magistrates, unknown to the learned magistrate, render the sentence manifestly excessive or otherwise require resentencing.
- [9]The appeal must be dismissed.
- The offences
- [10]On 11 February 2016, the appellant drove his car through the M7 Clem Jones Tunnel (‘CLEM7’) at 100km/h in an 80km/h zone. An infringement notice was issued to him. The penalty was $235 and 3 demerit points. The appellant took the notice to the so-called principal offender who, upon payment, wrote false identity details in the Statutory Declaration part of the notice.
- [11]On 3 March 2016, the appellant went to an address at Sunnybank Hills, met with a Justice of the Peace and signed a completed Statutory Declaration for the speeding infringement, declaring that the driver of the vehicle at the time of the offence was Nanyin LI, date of birth 1 April 1992 with a Chinese driver’s licence. The nominated address for LI was 191 Young Street, Indooroopilly.
- [12]The appellant mailed the Declaration to the Road Safety Camera Office which reissued the infringement notice to the nominated person and address. It was never paid.
- [13]By the false declaration and fraudulent misrepresentation, the appellant avoided the consequences of the speeding offence – the fine and demerit points.
- [14]The appellant did this another 19 times over the next 6 years, avoiding fines totalling $5,798 and 55 demerit points. On the last three occasions, the so-called principal offender was not available. The appellant himself fabricated the false identity, completing the declaration and sending it. The identities were fictitious, but for two the appellant nominated.
- [15]The material before the learned magistrate was that police had investigated numerous examples of similar offending by others, facilitated by the principal offender. Between 2012 and 2022 hundreds of offenders submitted 1,400 ‘renominations’, avoiding the payment of more than $420,000 in fines.
- The hearing
- [16]The prosecutor told the learned magistrate that when the police spoke to the appellant, he first claimed that the different persons nominated were his friends who had borrowed his cars. The prosecutor submitted there were numerous mitigating factors – the appellant was 37 years old, a family man and self-employed as the sole director of a company with management rights of a hotel at Broadbeach. Referring to R v Ndizeyev,[2] the prosecutor submitted the offence struck at the heart of justice. The prosecutor referred to the sentencing remarks of Judge Smith in R v Fidel Gunes.[3]
- [17]The appellant’s traffic history included 13 incidents of speeding between August 2011 and September 2022.
- [18]Defence counsel relied on the appellant’s genuine remorse – said to be evident in the plea of guilty and co-operation with the administration of justice – and his good prospects of rehabilitation. The submissions included that the appellant is not an Australian citizen, he came to Australia in 2010 as a student and is the sole director of a company. The submissions focussed on the recording of a conviction, with detailed reference to the reasons in R v ZB.[4] It was asserted that a recorded conviction would affect the appellant’s ability to continue as director of his company. Counsel relied on a letter, written by the appellant’s solicitors, advising the appellant that if a conviction were recorded, he would not be able to continue as director but that his wife might do so. Counsel told the learned magistrate that the appellant’s wife had sat an exam said to be relevant to the problem but argued she did not have appropriate experience.
- [19]The court was closed for further submissions.
- [20]As I have already noted, the learned magistrate gave detailed and faultless reasons for the sentence. Her Honour credited the appellant for the pleas of guilty, ignored his minor and different criminal history, fairly considered the character references and acknowledged the appellant’s co-operation in, after initial denials, providing two statements to police. The appellant was not able to identify the so-called principal offender from photo-boards but her Honour described his co-operation as having provided what information he could. The learned magistrate noted the appellant’s age, his role in the offending and that a sentence of imprisonment was the last resort.
- [21]The learned magistrate correctly described the offending as striking at the heart of the administration of justice; it was protracted, deliberate, repeated, calculated, sophisticated and systematic offending. The appellant had benefitted significantly by avoiding fines and the loss of points and, if those points were added to his previous demerits, the risk of the loss of his licence. Some of the speeding offences were quite serious, for example, driving at 129km/h in a 100km/h zone. The sentence needed to punish the appellant and deter him and others from such conduct. Her Honour referred in detail to the cases the prosecution and defence had relied on.
- [22]The learned magistrate addressed the issues in the exhibited solicitors’ letter, which included the advice that the appellant would need to retire as director and could not hold the licence required to conduct the business if imprisoned for 6 months. There were alternatives available, such as the wife’s completing a course and other persons being appointed director.
- [23]I have read the transcript of the closed court submissions and remarks.
- Sentences imposed by other magistrates
- [24]On 28 August 2023, Yuexin Li, pleaded guilty in the Magistrates Court at Brisbane to 42 charges – 21 each of making a false declaration and fraud. He appeared with the aid of an interpreter.
- [25]The prosecutor in Yuexin Li’s matter tendered a bundle of material relating to the proceeding against another offender, Yuksan Li, for similar conduct. Yuksan Li had been fined $5,000, ordered to perform 180 hours of community service and disqualified from driving for 12 months for 38 charges. Yuksan Li was 15 years younger than Yuexin Li.
- [26]The defendant Yuexin Li was aged between 40 and 48 years at offending, had no criminal history, but had a two page traffic history. He “almost immediately” admitted to the offending. The prosecutor submitted that the defendant was in Australia on a visa and a period of imprisonment “would raise issues under the Migration Act”. The prosecutor submitted the defendant did not appear to require supervision in the community and community service would be the most effective way to punish him.
- [27]Defence counsel told the learned magistrate the defendant had moved to Australia in 2007, was a permanent resident and had worked and provided for his wife and son, who, with the son’s wife and 2-year-old child, all lived at a property owned by the defendant. The learned magistrate was told the defendant employed contractors to drive his vehicles, one of whom gave the defendant details of a person who could “resolve the ticket” the contractor had incurred. The defendant was the driver for about half of the tickets. For the rest, it was too hard to trace the contractors who had driven. The defendant had, at the time of sentence, already paid the total fines of $4,649 into the solicitor’s trust account.
- [28]The hearing went into closed court.
- [29]The learned magistrate sentenced on the facts just outlined, which were not contested. Her Honour noted the defendant had no criminal history, had “not been before the Court for any traffic-related matters”, had pleaded guilty “at a very early stage” and had co-operated and made admissions. The learned magistrate said it was necessary to take into account, on the principle of equal justice, the orders made in the case of Yuksin Li and ordered a fine of $5,000, restitution of $4,649, the amount of the fines, with no recorded conviction “to reflect the principle of equal justice but also your lack of criminal history and other mitigating factors”.
- [30]This summary is sufficient to demonstrate that there were significant differences in the facts and the matters in the defendant’s favour from the appellant’s case.
- [31]On 18 June 2024, Changfang Xue pleaded guilty to 20 charges in the Magistrates Court at Brisbane. He appeared with the assistance of an interpreter. At the start of the proceeding his counsel tendered a sealed envelope.
- [32]After referring to the decision in Yuexin Li, the prosecutor submitted the order should be a fine of $5,000, compensation of $5,752 and no recorded conviction.
- [33]The prosecutor informed the learned magistrate that the defendant was 31 years old at the time of offending, 35 years old at the time of sentencing, had no criminal history, a two-page traffic history, was in Australia on a working visa and “if a conviction is recorded, it might jeopardise his stay in Australia.”
- [34]Defence counsel tendered a psychological report from which he informed the learned magistrate the defendant was born in China, had a poor upbringing in a large family, moved to Australia in 2007, is married with three children and supports the family. His employment was affected during COVID-19 and he suffered a back injury which reduced his employability. The offending was, in counsel’s submission, the result of depression and anxiety at incurring the speeding notices and fear of losing his licence because he needed to drive for work. He could not reveal the situation to his wife. Counsel referred to the report, submitting the defendant “presents with special needs” and “features of slow cognitive processing with some mental clouding.”
- Discussion
- [35]
… applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.”
(Emphasis in original.)
- [36]
- [37]In this case, the disparity does not indicate appealable error. Is the discrepancy itself a ground for intervention? In my respectful view, it is not. In any case, even if an appeal on the ground of disparity were allowed, the appeal court, in resentencing, is not “required to achieve identity of punishment”.[7] There is no obligation to reduce a sentence to one that would be inadequate.[8]
- [38]The sentence imposed was not just within a reasonable range, it was, arguably, generous. The repeated acts of speeding, making a false declaration and making a fraud on the legal system demonstrate serious disregard for the safety of other road users and arrogant disrespect for the legal system designed to guard that safety.
- [39]Had the learned magistrate been made aware of the preceding decisions, her Honour need not have been persuaded by them and would not, either on principles of equal justice or (although it was not argued) judicial comity, have been bound by them. They do not bind this Court.
Footnotes
[1]Justices Act 1886 (Qld) s 223.
[2][2006] QCA 537.
[3][2022] QDCSR 1166.
[4][2021] QCA 9.
[5](2011) 244 CLR 462 at 473 [28] (footnote omitted).
[6]Green v The Queen (2011) 244 CLR 462 at 475 [32] per French CJ, Crennan and Kiefel JJ, citing Lowe v The Queen (1984) 154 CLR 606 at 617-618 per Brennan J; Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ.
[7]Green v The Queen (2011) 244 CLR 462 at 475 [32] per French CJ, Crennan and Kiefel JJ.
[8]Green v The Queen (2011) 244 CLR 462 at 476-477 [33] per French CJ, Crennan and Kiefel JJ.