Chung Hon Ng v The Queen - [2017] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0261

CHUNG HON NG	Appellant
v
THE QUEEN	Respondent

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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)

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSCA 211
Decision Date: 21 August 2017

CaseChat Overview and Summary

The appellant, Chung Hon Ng, appealed against his conviction and sentence for one charge of cultivating a narcotic plant and 18 charges of using a false document. The matter was heard in the High Court of Australia. The appellant argued that the sentence imposed was manifestly excessive, taking into account his age, health, and significant criminal history for dishonesty offences.

The central legal issue was whether the aggregate sentence of six years' imprisonment, with a non-parole period of four years, was manifestly excessive. The appellant submitted that the sentence was disproportionate to the offending and did not reflect the mitigating factors. The Crown, represented by the respondent, The Queen, contended that the sentence was appropriate given the appellant’s criminal history and the seriousness of the offences.

The High Court found that the aggregate sentence was within the range of penalties that could be considered appropriate for the crimes committed. The court recognised the appellant’s significant criminal history but noted that the sentence was not manifestly excessive. The court highlighted that the seriousness of the offences, particularly the use of false documents, warranted a substantial custodial sentence. The appeal was therefore dismissed.

No further orders were made by the court beyond the dismissal of the appeal. The appellant remains subject to the original sentence imposed by the lower court.

Orders