Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ngo v R [2018] NSWCCA 296 Hearing dates: 19 November 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Before: Hoeben CJ at CL [1];
Rothman J at [2];
Price J at [3]Decision: I would grant leave to appeal but would dismiss the appeal.
Catchwords: CRIME – sentence appeal – knowingly take part in the cultivation of not less than the large commercial quantity of cannabis by enhanced indoor means contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) – whether the judge erred by failing to take into account that the applicant was a young adult – whether error in the judge’s findings as to the applicant’s prospects of rehabilitation – whether the judge erred by failing to have proper regard to the applicant’s evidence as to his role in the cultivations – whether the judge erred by giving disproportionate weight to general deterrence and retribution – whether the sentence was manifestly excessive – ex tempore sentencing judgment – Form 1 offence and offence on a s 166 certificate – sentence not manifestly excessive – appeal dismissed Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 23 Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Clinton v R [2014] NSWCCA 320
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277
R v Makisi [2004] NSWCCA 333; (2004) 151 A Crim R 245
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
Vaiusu v R [2017] NSWCCA 71
Wei Zheng Wong v R [2010] NSWCCA 160
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460Category: Principal judgment Parties: Duong Sy Ngo (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
P Lowe (Applicant)
B Hatfield (Respondent)
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2016/286397; 2016/312603; 2017/194482 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 28 November 2017
- Before:
- Bennett SC DCJ
- File Number(s):
- 2016/286397; 2016/312603; 2017/194482
Judgment
-
HOEBEN CJ at CL: I agree with Price J and the order which he proposes.
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ROTHMAN J: I agree with Price J.
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PRICE J: Duong Sy Ngo, the applicant, seeks leave to appeal against the sentence imposed on him in the District Court at Parramatta on 28 November 2017.
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The applicant pleaded guilty to a single count of knowingly take part between 8 June 2016 and 13 September 2016 in the cultivation of 231 cannabis plants, by enhanced indoor means, which was…
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- AGLC
- Ngo v The Queen [2018] NSWCCA 296
- Case
- [2018] NSWCCA 296
- Decision Date
CaseChat Overview and Summary
The court examined the arguments and found that the judge had properly considered the appellant's age and other personal circumstances, including the potential for rehabilitation. The court concluded that the judge's findings on rehabilitation prospects were not in error and that the judge had given due consideration to the appellant's evidence about his role. The court also found that while general deterrence and retribution were factors in the sentencing, they were not disproportionately emphasised. The court further determined that the sentence, while severe, was not manifestly excessive given the nature and circumstances of the offence. The ex tempore sentencing judgment, coupled with the offence being a Form 1 offence and on a section 166 certificate, supported the sentence's proportionality.
Ultimately, the appeal was dismissed by the court. The decision affirmed the sentence imposed by the trial judge, finding it to be within the appropriate range for the serious nature of the offence. The court's judgment concluded that the appeal did not succeed in establishing that the sentence was manifestly excessive or that there were significant errors in the sentencing process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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