R v Eng; R v Ong

Case [2023] NSWDC 536

District Court


New South Wales

Medium Neutral Citation: R v Eng; R v Ong [2023] NSWDC 536
Hearing dates: 25 November 2022, 20 February 2023;,13 April 2023, 21 April 2023
Date of orders: 24 April 2023
Decision date: 24 April 2023
Jurisdiction:Criminal
Before: King SC DCJ
Decision:

ENG & ONG: Convicted.

Special circumstances found - 1st time in custody, need for supervised rehabilitation within the community.

Sentenced to a term of imprisonment of 4 years and 6 months comprising a NPP of 3 years to commence on 21 March 2022 and expiring on 20 March 2025, upon which date he will become eligible for parole, and a balance of term of 1 year and 6 months to commence on 21 March 2025 and to expire on 20 September 2026.

Catchwords:

CRIMINAL – sentence - knowingly take part in the cultivation of a large commercial quantity of cannabis plants by enhanced indoor means – roles of offenders – parity – objective serious of offence – offers of assistance not accepted by police - subjective matters

Legislation Cited:

Drugs Misuse and Trafficking Act 1998

MigrationAct 1958

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Chow v DPP (1992) 28 NSWLR 593

NguyenvR [2015] NSWCCA 268

R v Tran, Tony [2017] NSWDC 397

RvUzabeaga [2000] NSWCCA 381

TranvR [2018] NSWCCA 220

Category:Sentence
Parties: Rex
Tan Chee ENG
Kheng Joo ONG
Representation:

Counsel:
ENG: Mr D Roff
ONG: Mr A Ionita

Solicitors:
ODPP: Ms A Cummingham-Burke
ENG: Mr T O’Connor Legal & Consulting
ONG: Ms M Pham, Ms A Vu AKN & Associates P/L
File Number(s): 2022/00081294 - R v Tan Chee ENG;
2022/00081327 - R v Kheng Joo ONG

JUDGMENT

  1. HIS HONOUR: Tan Chee Eng and Kheng Joo Ong each appear for sentence in respect of a single offence, being knowingly take part in the cultivation of a large commercial quantity of cannabis plants by enhanced indoor means, contrary to s 23(2)(a) of the Drugs Misuse and Trafficking Act 1998. The maximum penalty provided is 20 years’ imprisonment and or 5,000 penalty units. There is a standard non‑parole period of 10 years. Each of the accused was committed for sentence on 25th of August 2022 from the Downing Centre Local Court and each has adhered to that plea of guilty. Accordingly, each is entitled to a 25% discount for the utility of the plea alone, and such a discount will be provided.

  2. The facts are agreed and are as follows:

  1. Both of the offenders are Malaysian nationals.

  2. In late February 2022, investigators received information in relation to activity at 112 Forest Road, Hurstville; a large, detached, single‑storey industrial property on the edge of Hurstville CBD. That property is accessed via a gate onto a concrete driveway; the driveway is partially covered by a metal roof.

  3. Investigators commenced an investigation as part of Strike Force Grassy, an ongoing investigation into the enhanced indoor cultivation of cannabis within the Sydney central metropolitan region.

SURVEILLANCE

  1. Surveillance…

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AGLC
R v Eng; R v Ong [2023] NSWDC 536
Case
[2023] NSWDC 536
Decision Date

CaseChat Overview and Summary

The case of R v Eng and R v Ong involved two defendants, Eng and Ong, who were charged with participating in the cultivation of a large commercial quantity of cannabis plants using enhanced indoor means. The case was heard in the relevant Australian court. The primary issue for the court to determine was the appropriate sentence for the defendants, considering their respective roles in the offence and the principle of parity in sentencing. Additionally, the court had to assess the objective seriousness of the offence and the subjective circumstances of the offenders.

The court examined the roles played by Eng and Ong in the cultivation operation. While both were found to be knowingly involved, the court noted differences in their contributions. Despite this, the principle of parity in sentencing required the court to ensure that their sentences reflected their respective roles. The court also considered the objective seriousness of the offence, which involved a significant commercial quantity of cannabis. Furthermore, the court took into account the subjective matters, such as the offenders' first-time incarceration and their potential for supervised rehabilitation within the community. Although offers of assistance were made to the police, these were not accepted.

After careful consideration of these factors, the court found special circumstances in favour of both defendants, including their first-time status in custody and the need for supervised rehabilitation. Consequently, Eng and Ong were sentenced to a term of imprisonment of four years and six months. This comprised a non-parole period of three years, starting on 21 March 2022 and ending on 20 March 2025, after which they would become eligible for parole. The balance of their term was set at one year and six months, to commence on 21 March 2025 and to expire on 20 September 2026.

Orders

Orders of the court

ENG & ONG: Convicted.

Special circumstances found - 1st time in custody, need for supervised rehabilitation within the community.

Sentenced to a term of imprisonment of 4 years and 6 months comprising a NPP of 3 years to commence on 21 March 2022 and expiring on 20 March 2025, upon which date he will become eligible for parole, and a balance of term of 1 year and 6 months to commence on 21 March 2025 and to expire on 20 September 2026.

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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