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Ngo v The Queen

Ngo v The Queen

Case [2018] NSWCCA 296 14 December 2018

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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 460
Category: Principal judgment
Parties: Duong Sy Ngo (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lowe (Applicant)
B Hatfield (Respondent)
Solicitors:
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.
ROTHMAN J: I agree with Price J.
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.
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…

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 Ngo v The Queen

Details

AGLC: Ngo v The Queen [2018] NSWCCA 296
Case: [2018] NSWCCA 296
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of Ngo v The Queen involved the appellant, who was convicted of engaging in the cultivation of a large commercial quantity of cannabis through indoor means, a violation of section 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The appeal against the sentence imposed was heard by the court. The central issues before the court were whether the trial judge erred by not considering the applicant's status as a young adult, whether there were errors in the judge's assessment of the applicant's rehabilitation prospects, if the judge failed to adequately consider the applicant's evidence regarding his involvement in the cultivation, whether the judge disproportionately emphasised general deterrence and retribution, and if the sentence was manifestly excessive.

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