Chung Hon Ng v The Queen
[2017] VSCA 211
•21 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0261
| CHUNG HON NG | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | HANSEN and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 July 2017 |
| DATE OF JUDGMENT: | 21 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 211 |
| JUDGMENT APPEALED FROM: | DPP v Ng (Unreported, County Court of Victoria, Judge Montgomery, 2 December 2016) |
---
CRIMINAL LAW – Appeal – Sentence – 1 charge of cultivate narcotic plant – 18 charges of use false document – 6 years’ imprisonment with non-parole period of 4 years – Whether aggregate sentence manifestly excessive – Significant criminal history for dishonesty offences – Sentence within range – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C T Farrington | Stary Norton Halphen |
| For the Crown | Mr C Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
HANSEN JA
COGHLAN JA:
On 1 December 2016, the appellant pleaded guilty to one charge of cultivate a narcotic plant and 18 charges of use a false document. On 2 December 2016, he was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Cultivate a narcotic plant
[Drugs, Poisons and Controlled Substances Act 1981 s 72B]15 years 6 years’ imprisonment, aggregate term N/A 2 – 19 Use a false document [Crimes Act 1958 s 83A(2)] 10 years Total Effective Sentence: 6 years’ imprisonment Non-Parole Period: 4 years Pre-sentence Detention Declared: 656 days 6AAA Statement: 9 years’ imprisonment with a non-parole period of 7 years Other orders: Drug disposal order, forfeiture order and forensic sample order.
On 20 March 2017, Priest JA granted leave to appeal on the following ground:
1.The aggregate sentence imposed on charges 1–19 and the non-parole period was in all the circumstances manifestly excessive.
Between 31 July 2013 and 6 February 2016, the appellant had been involved with a significant marijuana growing group. The role that the appellant played was to procure the lease of premises for the purpose of using those premises to grow a crop of cannabis. He arranged the leases on 18 premises and, on all but one occasion, he provided false documents to support obtaining the lease. On all but one occasion, the purpose was to obtain a lease in a false name. The documents used included false driver’s licenses, a false citizenship certificate and false Medicare cards. It appears that eight different sets of documents were used. The evidence of what was being cultivated or appeared to have been cultivated was wide-ranging and substantial. It was accepted that the appellant had not been directly involved in dealing with the crops.
Charge 1, the cultivation charge, was a rolled up charge relating to 18 different marijuana crops. It alleged cultivation simpliciter. That is, not in a commercial or large commercial quantity. It carried a maximum term of imprisonment of 10 years.
Charges 2 to 19 were also described as rolled up counts because each related to using more than one document. We are not sure that the use of more than one document in a single transaction would ordinarily require a separate charge for each document, but that is how this matter proceeded.
There are no charges in relation to two of the 18 properties and two charges each for two of the properties (charges 4 and 5 and 7 and 8 respectively) alleging the use of documents on different dates.
In relation to charge 1, the case was opened by the prosecution as follows:
Between around July 2013 and March 2015 the offender rented 18 residential properties. On all but one occasion he used false documents in order to obtain the lease.
When each of the 18 properties was searched under police warrant each was found to have been utilised for the cultivation of cannabis. (Charge 1).
…
The offender pleads guilty to one rolled-up charge of cultivate a narcotic plant in respect to all 18 properties and 18 rolled-up counts of using a false document in respect of items of false documentation used at each of the various addresses.
The details of what documents were used in relation to each property were specified in the opening.
The plea for the appellant was conducted on the basis that the explanation for the appellant’s conduct was his long-standing gambling addiction. It was put that his involvement in these matters arose because he still had outstanding debts when last released from prison. It was further submitted that there was some hope for his rehabilitation. A report from Dr Aaron Cunningham, Forensic Psychologist, was tendered on behalf of the appellant. A letter from the appellant was also provided to the judge.
That report usefully set out the background of the appellant which may be summarised as follows. He is 49 years of age. He was born in Hong Kong and came to Australia on a business visa when he was 21. His elderly parents live in Australia and he has two younger brothers. He was involved in a relationship with Serena Wong for 17 years. The relationship failed because of his gambling problem. He has been in a relationship with a woman called Chin Lee Pohn for more than two years; she continues to visit him in prison and he hopes that they will live together after his release.
He completed secondary school in Hong Kong and obtained a Bachelor’s degree in Information Management from Melbourne University after he arrived in Australia. He worked in mobile phone shops, and as the Practice Manager for a firm of solicitors for two years. He then became a finance broker and pursued that profession for eight years. He worked for two years in property management, which is where he sees his future.
The appellant told Dr Cunningham that he had a very significant gambling problem and that, at some stage, he had lost at least $6 million in three months. He said that he was addicted to gambling at the time of his arrest and he would have been quite successful had it not been for his gambling.
In his report, Dr Cunningham said:
In my opinion, Mr Ng presents with a Gambling Disorder. He reported a stable childhood with no indication of abuse or trauma. He relocated to Australia in 1989 through the Business Migrant Programme. He completed a Bachelor Degree at Melbourne University and gained stable employment as an Office Manager and then Financial Broker. It appears that his Gambling Disorder began soon after he attended the Crown Casino. He stated that he became addicted to the high life associated with gambling. He initially gambled as a way to escape from the stress in his marriage and business. He then sought to make money and further himself through the winnings from gambling. He developed an addiction to gambling and engaged in criminal behaviour to finance his dependence. His offence behaviour was motivated by gaining funds to continue gambling and repaying gambling debts.
Mr Ng presents with protective factors that may reduce his risk and improve his prospects for rehabilitation. He is motivated to cease gambling. He acknowledged that he would require psychological intervention to attempt to cease gambling. He has the support of a girlfriend in the community.
Whilst disposition is solely a matter for the courts, from a psychological perspective, Mr Ng would benefit from a disposition that facilitated his rehabilitation. He would benefit from engaging with problem gambling treatment. He may source this in the community through Gambler’s Help. Given Mr Ng’s history of significant gambling, he would likely require long- term engagement to treat his Disorder. He would benefit from returning to stable employment, maintaining his relationship and improving his relationship with his parents.
Engaging with problem gambling support, abstaining from gambling and maintaining community would improve his prospects for rehabilitation.
It is not clear from Dr Cunningham’s report what the ‘protective factors’ might be. It seems odd that Dr Cunningham said nothing about the appellant’s criminal history all of which the appellant says is gambling-related.
The appellant has a significant criminal history. The appellant had court appearances from 1996 to 2011 and it was put on the plea that he had only been at large for approximately four months when he commenced his offending. There was no evidence before the Court that he did in fact owe money when released.
The appellant has numerous convictions for obtaining and attempting to obtain financial advantage by deception and for obtaining property by deception. He has a prior conviction for making a false document.
In 1999, he was sentenced at the Heidelberg Magistrates’ Court to eight months’ imprisonment with six months suspended for 24 months. At the end of 2005, he was sentenced in the County Court to a total effective sentence of five years and four months’ imprisonment with a non-parole period of 48 months. Allowing for pre-sentence detention, he would have qualified for release in the early part of 2008 and for full release in early 2009. However, he was further sentenced in May 2007 to a further 20 months with 10 months to be served cumulatively on the sentence he was already serving, which would have extended his head sentence to about early 2010. A new non-parole period was fixed for two years, one month and 27 days. This made his earliest release date mid-2009.
He was further sentenced at the County Court in May 2011 for similar offences and sentenced to a total effective sentence of one year and nine months’ imprisonment with a non-parole period of 10 months. It was suggested on the plea that he commenced this offending in July 2013. He had been released in about April 2013. It seems that he had served most of his sentence.
On the application for leave and on the appeal, the submissions concentrated on charge 1, namely, the cultivation of cannabis count and on analysis of the sentencing practices in relation to that offence.
In our view, it is wrong to characterise the case in those terms. The role to be played by the appellant was the dishonest arrangement of leases to the benefit of a very large marijuana growing enterprise. It was dishonest and involved the pretence that the leases were bona fide. There is no reason to assume that the sentence on that charge would have been concurrent.
When it comes to offences of dishonesty, the appellant has a very significant criminal history, having been sentenced to imprisonment on a number of occasions.
Charge 1, the cultivation count, added content to demonstrate the purpose of those offences. That is not to say that the cultivation was not a reasonably serious example of the offence. It was not possible to establish the knowledge or intent of the appellant as to the quantity of what was actually grown, although it was plainly ongoing and on a large scale. If no crops had been grown, the document offences would still have been quite serious since the houses were obtained for the purpose of growing marijuana crops.
It was the appellant’s case below that, by this conduct, he paid off the debt he owed but he has never said what the amount was. If, as is implied, it was a very large amount, then that ought to have given him some insight into the scale of the operation.
The growing of the marijuana and the use of false documents to obtain 17 houses were interlinked. In his remarks, the very experienced sentencing judge said:
I have explained the role upon which I have sentenced you. In my view this operation is at the higher end of the cultivation range due to the length, nature and type of offending. Your role was essential to the success of the operation. Clearly whoever was running it needed a front man who was persuasive and acceptable to be able to lease various properties which could then be [used] as grow houses. You were that person.[1]
[1]DPP v Ng (Unreported, County Court of Victoria, Judge Montgomery, 2 December 2016) [14].
The attempt made in the written application for leave and on this appeal has been that the most important charge was charge 1. We are not satisfied that this is so. We do not accept, for the reasons set out above, that this sentence can be disaggregated in that way.
His Honour took into account the matters put on the plea on behalf of the appellant, particularly the plea of guilty. His Honour was not prepared to accept the appellant’s assertion, through Dr Cunningham and his counsel, the he wanted to do something about his gambling addiction.
His Honour accepted the fact of the appellant’s gambling addiction and gave it appropriate weight. His Honour said:
I accept that, because of the report of Dr Cunningham, that you have a gambling problem but it is all very well now to say that you want to do something about it but there is nothing in your history that suggests to me that you have ever made an attempt to do something about it. The fact that you re-offended approximately four months after finishing your parole period suggests to me that your prospects of rehabilitation are dubious.[2]
[2]Ibid [11].
The respondent submitted that if the circumstances of the offending were properly analysed then the sentence was within range. The respondent relied upon seven specific matters in support of that proposition. It is not necessary to repeat them here.
If concentration is placed on charge 1, then an argument about current sentencing practices emerges. The case is much more complicated than that as Priest JA observed when granting leave.
We are satisfied that the sentence is within range. The appeal will be dismissed.
---
0
0