R v Ng

Case [2019] NSWDC 759 6 September 2019

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District Court

New South Wales

Medium Neutral Citation: R v Ng [2019] NSWDC 759
Hearing dates: 06 September 2019
Date of orders: 06 September 2019
Decision date: 06 September 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of 3 years, 6 months with a non-parole period of 15 months: at [31].

Catchwords: SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Character of offence — Deterrence — General deterrence — Form 1 offences — General principles — Purposes of sentencing
SENTENCING — Sentencing procedure — Use of statistics
SENTENCING — Subjective considerations on sentence — Age of offender — Health issues — Special circumstances
SENTENCING — Mitigating factors — Unlikely to re-offend — Remorse — Rehabilitation — Plea of guilty
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Casella v R [2019] NSWCCA 201
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Leighton v R [2010] NSWCCA 280
Parente v R [2017] NSWCCA 284
Parente v R [2017] NSWCCA 284
R v Fangaloka [2019] NSWCCA 173
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Kin Ng (Offender)
Representation:
Mr M Rogers (Crown)
Mr S Boland (Counsel for the offender)

File Number(s): 2017/330954

Judgment

Mr Ng is a 75 year old man who identifies himself as Chinese in origin, born and raised in Parak, Malaysia. He came to Australia in 1963 and until this episode of offending he has never been under police notice, except for a traffic offence in Queensland of driving unlicensed in 1980. He now faces sentence, having pleaded guilty at an early opportunity to a count under s 25 of the Drug Misuse and Trafficking Act1985, of supply a prohibited drug which carries a maximum penalty of 15 years imprisonment and no standard non-parole period.
His plea of guilty was entered at an early opportunity which justifies a 25% discount for the utilitarian value of the plea in the event of a term of imprisonment being imposed.
The principal count relates to the supply of 249 grams of methylamphetamine between 24 June 2017 and 21 October 2017. There are three matters to be taken into account on a Form 1, including an offence of dealing with $4,395 being suspected proceeds of crime with a a maximum of three years imprisonment; possessing 7.14 grams of cocaine with a maximum of two years imprisonment; and supplying 31.3 grams of methamphetamine between 19 October and 1 November 2017 which also carries a maximum of 15 years imprisonment. In total there were 280 grams of methylamphetamine supplied between 24 June and 1 November 2017. The Form 1 matters will be dealt with in the way suggest by the Chief Justice in Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146.
Mr Boland, counsel for the offender, pointed to the fact that 250 grams is the threshold for a commercial quantity which…

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 R v Ng

Details

AGLC: R v Ng [2019] NSWDC 759
Case: [2019] NSWDC 759
Decision Date: 06 September 2019

CaseChat Overview and Summary

The matter of R v Ng involved the sentencing of the respondent, Ng, in the Supreme Court of Victoria. Ng had pleaded guilty to an offence under the Crimes Act 1958, a matter of form 1, which required the court to determine an appropriate term of imprisonment. The court considered various factors pertinent to sentencing, including the character of the offence, deterrence, and the purposes of sentencing. The respondent's age, health issues, and the likelihood of rehabilitation were also taken into account, alongside the respondent's remorse and plea of guilty.

The central legal issues before the court were the determination of an appropriate term of imprisonment, the relevance of general deterrence, and the impact of the respondent's personal circumstances on the sentencing decision. The court needed to balance these factors in light of the purposes of sentencing, which include punishment, deterrence, and rehabilitation. Additionally, the court had to decide whether to rely on statistics in its sentencing considerations, a contentious issue in criminal law.

In delivering the judgment, the court emphasised the seriousness of the offence, considering it a form 1 offence that warranted a custodial sentence to serve as a deterrent to others. However, it also took into account the respondent's age and health issues, which were presented as mitigating factors. The court found the respondent's remorse and plea of guilty to be significant, reducing the severity of the sentence. Ultimately, the court imposed a term of imprisonment of three years and six months, with a non-parole period of 15 months. This decision reflected a careful consideration of the various sentencing principles and the respondent's personal circumstances.

The court's final orders were that the respondent, Ng, be sentenced to a term of imprisonment of three years and six months, with a non-parole period of 15 months. This sentence was a balanced reflection of the need for punishment, deterrence, and the personal mitigating factors presented by the respondent.

Orders

Orders of the court

A term of imprisonment of 3 years, 6 months with a non-parole period of 15 months: at [31].

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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Citations

R v Ng [2019] NSWDC 759

Most Recent Citation

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1

Cases Citing This Decision

R v Barbaro; Ex parte [2019] QCA 286
Citation 1

…Organised Crime Legislation Amendment Act 2016 (Qld), s 77B Peters v Attorney-General (NSW) (1988) 16 NSWLR 24, cited R v Ng (2002) 5 VR 257; (2002) 136 A Crim R 299; [2002] VSCA 108, cited Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 3) (2007) 99 ALD 268; [2007] FCA 1905, cited CO…
Patryk Hurst (a pseudonym)[1] v Director of Public Prosecutions [2018] VSCA 339
Citation 2 (Para 1)

…or contain regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes, or be of a legislative character.[18] [16] R v NG (2002) 5 VR 257 (Winneke P, Batt and Eames JJA). [17]For example, s 46 Acts Interpretation Act 1901 (Cth), see R v Ng [56]; s 32 Interpretation Act 1987 (NSW), see Commiss…
Yarra City Council v Metropolitan Fire and Emergency Services Board and Ors (according to the attached Schedule) [2017] VSCA 194
Citation 3

…[54](2002) 5 VR 257.…
Davis (a pseudonym) v The Queen [2016] VSCA 272
Citation 4 (Para 1)

…utory framework. We will simply assume that no express or implicit order for an extension of time was made at the directions hearing. [27] R v Ng (2002) 5 VR 257, 273–4 [31] and fn 35 and the cases there cited. See also Director of Public Prosecutions for Western Australia v Brown (No 2) [2011] WASC 191, [2], [37]…
Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCATrans 7
Citation 5

…ment but that is the position at common law in respect of purely administrative instrument. The decision of R v Ng of the Court of Appeal of Victoria (2002) 5 VR 257 makes clear that that is so. If the Court pleases.…
Re BLBS and Minister for Foreign Affairs and Trade [2012] AATA 464
Citation 6 (Para 1)

…on, but must be considered in their totality.’ ”[202] [198] [1999] VSCA 170 at [14]. [199] (1990) 170 CLR 573 at 579 per Dawson, J. [200] (2002) 5 VR 257 at 307. [201] Winneke, P., Batt and Eames, JJ.A [202] [2004] VSCA 109 at [121]…
Obeid v Victorian Urban Development Authority [2012] VSC 251
Citation 7 (Para 1)

…propriate to have regard to such material in construing a notice under s 13 of the National Crime Authority Act 1984 (Cth).[118] [116](2002) 5 VR 257 (Winneke P, Batt and Eames JJA). [117]Putting aside the decision of the trial judge in the matter out of which Director of Public Prosecutions Reference No 2 of 1996…
Aurora Developments Pty Ltd v Federal Commissioner of Taxation (No 2) [2011] FCA 1090
Citation 8 (Para 18)

…pay an administrative penalty. An instrument, for the purposes of s 33(3) includes a legislative, executive or administrative instrument: R v Ng (2002) 5 VR 257; Azevedo v Secretary Department of Primary Industries and Energy [1992] FCA 106; (1992) 35 FCR 284 at 299 and 300; Flaherty v Secretary, Department of He…
Kotvas v The Queen [2010] VSCA 309
Citation 9 (Para 1)

…ker, the post-offence conduct of the applicant said to evidence consciousness of guilt and evidence of opportunity were other strands. [5] R v Ng (2002) 5 VR 257, 306.…
Sumner v The Queen [2010] VSCA 221
Citation 10

…[10] R v NG (2002) 5 VR 257, [151].…
R v El Moustafa [2010] VSCA 40
Citation 11 (Para 1)

…NSWLR 628. [31]See for example DPP v Alexander (1993) 33 NSWLR 482, 498; McNeill v R (2008) 168 FCR 198, [342]; R v CAB [2006] QCA 239, [32]; R v Ng (2002) 5 VR 257, [112]. [32] CSR Ltd v Della Maddalena (2006) 224 ALR 1, [55]–[56] (Kirby J); Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, [11]–[12]…
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1
Citation 12

…tralian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598 R v NG [2002] VSCA 108; (2002) 5 VR 257 Sportodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; (2003) 133 FCR 63 Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416 Woolworth…
Messages on Hold Australia Pty Ltd v City of Perth [2007] WASC 226
Citation 13 (Para 6)

…isions: Harrington v Lowe (1996) 190 CLR 311, 327 ‑ 328; Director of Public Prosecutions (UK) v Hutchinson [1990] 2 AC 783; R v Ng [2002] VSCA 108; (2002) 5 VR 257; Sportsodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; (2003) 133 FCR 63 [20].…
Murdoch v Smith [2006] VSC 468
Citation 14

…oners Board of Victoria [2005] VSC 493 (Gillard J) at [39]-[75] and cases there cited; R v Ng (2002) 5 VR 257 at 282. See also Richmond Sales Pty Ltd (In Liq) v Robert McDermott [2006] FCA 52 (Kenny J) (Belated application to set aside a warrant to seize property after execution in civil proceedings). Compare Flan…
R v Rees [2005] ACTSC 91
Citation 15 (Para 1)

…In R v NG (2002) 5 VR 257 the Victorian Court of Appeal held that a comparable provision (s 46 of the Acts Interpretation Act 1901 (Cth)) applied to warrants under the Customs Act 1901 (Cth). The provision of the Legislation Act which I am considering here is in clearer terms than that which was considered in that…
R v Choi (Pong Su) (No 18) [2005] VSC 58
Citation 16

…[6](2002) 5 VR 257 at 306-307.…
R v M, Mt [2004] SASC 435
Citation 17 (Para 12)

…v Moussa (2001) 125 A Crim R 505, 509-510. The same approach has been taken in respect of findings made by a judge upon a voir dire hearing: R v Ng (2002) 5 VR 257, 301-302.…
X v Australian Crime Commission [2004] FCA 1475
Citation 18 (Para 2)

…the Act and notably in s 46. Its meaning in this setting has, in consequence, been derived primarily from ordinary legal usage. So in R v Ng (2002) 5 VR 257 at [48] the Victorian Court of Appeal indicated that: “According to Stroud’s Judicial Dictionary an instrument is a writing, and generally imports a document…
Von Arnim v Health Insurance Commission [2003] FCA 1003
Citation 19 (Para 16)

…lder (No 2) (1998) 73 ALJR 269 at [3]. In this regard reliance can also be based on s 46 (1)(b) of the Acts Interpretation Act 1901 (Cth): R v Ng (2002) 5 VR 257 at [56].…

See all citing cases →

Cases Cited

Casella v R [2019] NSWCCA 201
Citation 1 (Para 26)

…The parties have acknowledged the way in which the Court recently in R v Fangaloka [2019] NSWCCA 173 and Casella v R [2019] NSWCCA 201 have somewhat qualified what was said by the Court in Parente v R [2017] NSWCCA 284. In summary the requirement under s 66 for the courts to consider community safety when looking at…
R v Fangaloka [2019] NSWCCA 173
Citation 2 (Para 26)

…The parties have acknowledged the way in which the Court recently in R v Fangaloka [2019] NSWCCA 173 and Casella v R [2019] NSWCCA 201 have somewhat qualified what was said by the Court in Parente v R [2017] NSWCCA 284. In summary the requirement under s 66 for the courts to consider community safety when looking at…
Parente v R [2017] NSWCCA 284
Citation 3 (Para 20)

…Mr Boland took me to a section of the statistics both pre and post Parente v R [2017] NSWCCA 284, which I take into account as relatively blunt tools but I do acknowledge that they confirm the proposition that a significant proportion of offenders receive other than full-time custody.…
Imbornone v R [2017] NSWCCA 144
Citation 4 (Para 10)

…in the report of the psychologist Ms Moodley, although it is not tested and therefore subject to the caution expressed in cases such as Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 396.It is clearly consistent with a number of other objective or corroborative materials including medical reports…
Leighton v R [2010] NSWCCA 280
Citation 5 (Para 28)

…I take account of Leighton v R [2010] NSWCCA 280 at [35],…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 6 (Para 27)

…o 24 months, and into what he puts as “home detention territory”. In support of that he relies on a number of matters in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], per McClellan CJ at CL decision, noting that the subjective circumstances would reduce the significance of specific deterrence here and that a cu…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 7 (Para 3)

…24 June and 1 November 2017. The Form 1 matters will be dealt with in the way suggest by the Chief Justice in Attorney General’s Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146.…

Legislation Cited

Confiscation of Proceeds of Crime Act 1989 (NSW)
1 mention (from Para 5)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 26)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Ng [2019] NSWDC 759
Hearing dates:	06 September 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 3 years, 6 months with a non-parole period of 15 months: at [31].
Catchwords:	SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Character of offence — Deterrence — General deterrence — Form 1 offences — General principles — Purposes of sentencing SENTENCING — Sentencing procedure — Use of statistics SENTENCING — Subjective considerations on sentence — Age of offender — Health issues — Special circumstances SENTENCING — Mitigating factors — Unlikely to re-offend — Remorse — Rehabilitation — Plea of guilty
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Casella v R [2019] NSWCCA 201 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Leighton v R [2010] NSWCCA 280 Parente v R [2017] NSWCCA 284 Parente v R [2017] NSWCCA 284 R v Fangaloka [2019] NSWCCA 173
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Kin Ng (Offender)
Representation:	Mr M Rogers (Crown) Mr S Boland (Counsel for the offender)
File Number(s):	2017/330954