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Ngo v The Queen

Ngo v The Queen

Case [2021] VSCA 21 16 February 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0201

PAUL NGO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2021
DATE OF JUDGMENT:	16 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 21
JUDGMENT APPEALED FROM:	DPP v Ngo & Anor (Unreported, County Court of Victoria, Judge Doyle, 21 August 2020)

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CRIMINAL LAW – Appeal – Sentence – Plea of guilty – Conspiracy to traffick in a commercial quantity of controlled drugs – Dealing with the proceeds of crime – Dealing with money suspected of being the proceeds of crime – Total effective sentence 18 years 8 months’ imprisonment with 12 years 10 months non-parole – Applicant and co-offenders ran contested committal and contested plea – Whether specific error in exercise of sentencing discretion – Whether judge failed to apply principle of totality – Whether sentence manifestly excessive – Leave to appeal refused – Zogheib v The Queen [2015] VSCA 334, Lieu v The Queen [2016] VSCA 277.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Papa Hughes Lawyers
For the Respondent	Mr K T Armstrong, with Ms M J Brown	Ms S McNaughton SC, Commonwealth Director of Public Prosecutions

KAYE JA

NIALL JA:

The applicant pleaded guilty in the County Court at Melbourne to two charges of conspiracy to traffick in a commercial quantity of controlled drugs, one charge of dealing with the proceeds of crime, and one charge of dealing with money suspected of being the proceeds of crime.

Following a plea made on his behalf, the applicant was sentenced to a total effective term of 18 years and 8 months’ imprisonment with a non-parole period of 12 years and 10 months’ imprisonment. That sentence was constituted as follows:

Charge on Indictment Offence Minimum
Penalty Sentence Cumulation

1.

Conspiracy to traffick in a commercial quantity of controlled drugs

Life imprisonment

15 years

10 months’ imprisonment

Base sentence

2.

Conspiracy to traffick in a commercial quantity of controlled drugs

Life imprisonment

15 years

6 months’ imprisonment

2 years’ imprisonment

3.

Dealing with the proceeds of crime

25 years’ imprisonment

5 years’ imprisonment

Nil

10.

Dealing with money suspected of being the proceeds of crime

3 years’ imprisonment

2 years’ imprisonment

10 months’ imprisonment

Total Effective Sentence:

18 years 8 months’ imprisonment

Non-Parole Period:

12 years 10 months’ imprisonment

Pre-sentence detention declared:

701 days’ imprisonment

6AAA Declaration:

23 years’ imprisonment with a non-parole period of 18 years’ imprisonment

The applicant seeks leave to appeal against that sentence on the following four grounds:

Ground 1:The Learned Sentencing Judge erred in finding that ‘there is an erosion of the utilitarian value of the plea and the extent to which your pleas evidenced a willingness to facilitate the course of Justice and are indicative of remorse.’
Ground 2:The Learned Sentencing Judge erred in sentencing the Applicant on charge 10 on the basis that ‘you were engaging in criminal activity involving substantial enrichment over a…

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 [2021] VSCA 21
Case: [2021] VSCA 21
Decision Date: 16 February 2021

CaseChat Overview and Summary

The case of Ngo v The Queen involved the applicant, Ngo, who appealed against his sentence following a guilty plea to charges related to conspiracy to traffic a commercial quantity of controlled drugs and dealing with the proceeds of crime. The matter was heard in the Court of Appeal, with the primary judge having imposed a total effective sentence of 18 years and 8 months imprisonment, with a non-parole period of 12 years and 10 months. Ngo argued that the sentence was manifestly excessive and that the judge had failed to properly apply the principle of totality and had made a specific error in exercising their sentencing discretion.

The legal issues before the court centred on whether the sentence imposed by the primary judge was manifestly excessive, whether there had been an error in the application of the principle of totality, and whether the sentence failed to properly reflect the overall culpability and conduct of Ngo and his co-offenders. The court needed to consider the relevant principles of sentencing, the nature and circumstances of the offence, and the particular characteristics of Ngo and his co-offenders.

In assessing the appeal, the court found that there was no specific error in the exercise of sentencing discretion, and the judge had correctly applied the principle of totality. The court noted that Ngo and his co-offenders had conducted a contested committal and contested plea, indicating a high level of culpability. The court found that the sentence was not manifestly excessive, taking into account the seriousness of the offending and the need for general deterrence. The appeal was dismissed, with the court emphasising the importance of the principle of totality and the need for sentences to reflect the overall culpability of the offender and their co-offenders.

No orders were made by the court in relation to the appeal. The decision reinforces the principle that the totality principle must be applied in sentencing, and that a sentence will not be considered manifestly excessive if it is within the range of sentences that could be imposed for the offending.

Orders