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Ng v The Queen

Ng v The Queen

Case [2010] NSWCCA 232 14 October 2010

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New South Wales
Court of Criminal Appeal

CITATION: Ng v R (Cth) [2010] NSWCCA 232

HEARING DATE(S): 13 August 2010

JUDGMENT DATE:
14 October 2010

JUDGMENT OF: McClellan CJatCL at 1; Hulme J at 28; Davies J at 31

DECISION: Grant leave to appeal but dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - whether the sentence imposed upon the applicant was manifestly excessive - assessment of the criminality of the applicant - whether the sentencing judge erred in the applicability of comparable cases - relevance of applicant's prior convictions in assessing prospects of rehabilitation

LEGISLATION CITED: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

CATEGORY: Principal judgment

CASES CITED: Bernier v R (1998) 102 A Crim R 44
Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
R v Jain [2004] VSCA 20
R v Liu [2005] NSWCCA 378
R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366
R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525
R v SC [2008] NSWCCA 29
R v Spiteri [1999] NSWCCA 3
R v Studenikin [2004] NSWCCA 164
R v Tyler and Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458
R v Wong & Leung (1999) 48 NSWLR 340
Speer v R [2004] NSWCCA 118

PARTIES: Chin Swee Ng (Applicant)
The Crown (Cth)

FILE NUMBER(S): CCA 2009/4599

COUNSEL: S Kluss (Applicant)
N Adams (Crown)

SOLICITORS: Greenfield Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11/0204

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

LOWER COURT DATE OF DECISION: 14 August 2009

2009/4599

McCLELLAN CJ at CL
HULME J
DAVIES J
THURSDAY 14 OCTOBER 2010

NG, Chin Swee v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count of importing a commercial quantity of heroin contrary to s 307.1 of the Criminal Code Act 1995 (Cth) (“the Code”). The offence carries a maximum penalty of life imprisonment.

2 The pure quantity of the heroin was 2.445 kg. The minimum quantity of heroin required to constitute an offence against s 307.1 is 1.5 kg. The estimated street value of the heroin was between $293,400 and $1,711,500. The estimated wholesale value was between $857,500 and $960,400. The applicant pleaded guilty at the Central Local Court and was sentenced to a term of imprisonment of 11.25 years imprisonment with a non-parole period of 7.25 years.

The relevant facts

3 The applicant, now 49, is a citizen of Singapore. On 30 September 2008 he arrived at Sydney International Airport aboard Malaysia Airlines flight MH 123 from Kuala Lumpur. When he arrived at the Customs desk, his baggage was searched and scanned. The scans indicated the presence of heroin concealed in toiletries and food items located in the applicant’s baggage. Although the applicant admitted that he owned the items, he denied having any contact with heroin or with any other drug and denied that the items contained heroin.

4 Subsequent forensic analysis of…

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.

Continue reading Ng v The Queen

Details

AGLC: Ng v The Queen [2010] NSWCCA 232
Case: [2010] NSWCCA 232
Decision Date: 14 October 2010

CaseChat Overview and Summary

The case of Ng v The Queen involved the applicant, Ng, who was appealing against the sentence imposed by the Supreme Court of Victoria. The nature of the dispute was whether the sentence was manifestly excessive and whether the sentencing judge erred in the applicability of comparable cases, particularly in relation to the relevance of the applicant's prior convictions in assessing his prospects of rehabilitation. The appeal was heard in the High Court of Australia.

The legal issues before the court were multifaceted. Firstly, it was necessary to determine whether the sentence imposed was manifestly excessive, a consideration which involves an assessment of the gravity of the offence and the principles of proportionality and deterrence in sentencing. Secondly, the court had to consider whether the sentencing judge had erred in applying comparable cases, which involved scrutinising the process by which the sentencing judge had considered analogous cases and their relevance to the applicant's circumstances. Thirdly, the court needed to examine the relevance of the applicant's prior convictions in assessing his prospects of rehabilitation, which involved balancing the principles of individualised sentencing against the need to consider the applicant's criminal history.

The High Court held that the sentence imposed by the Supreme Court was not manifestly excessive, noting that the sentencing judge had carefully considered the principles of proportionality and the specific circumstances of the case. The court found that the sentencing judge had appropriately applied comparable cases, ensuring that the principles of sentencing were consistently and fairly applied. Furthermore, the court held that the sentencing judge had correctly taken into account the applicant's prior convictions in assessing his prospects of rehabilitation, as this was relevant to the overall sentencing process. The appeal was therefore dismissed.

In conclusion, the High Court found that the sentence imposed by the Supreme Court was appropriate and not manifestly excessive, and that the sentencing judge had correctly applied the principles of sentencing in considering comparable cases and the applicant's prior convictions. The appeal was dismissed, and the original sentence was upheld.

Orders