R v Ng - [2016] ACTSC 88

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ng
Citation:	[2016] ACTSC 88
Hearing Date:	27 April 2016
DecisionDate:	27 April 2016
Before:	Murrell CJ
Decision:	Sentenced to 12 months' imprisonment from 17 June 2015 to 27 April 2016. The remaining 49 days is suspended on the offender entering into a six month good behaviour order
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Cultivating a commercial quantity of cannabis – parity with co‑offender
Legislation Cited:	Criminal Code 2002 (ACT) s 616(3) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33
Cases Cited:	R v Quan; R v Zhang [2014] ACTSC 385
Parties:	The Queen (Crown) Kam Mei Ng (Offender)
Representation:	Counsel Ms S Saikal (Crown) Ms A Chalmers (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender)
File Number(s):	SCC 244 of 2015

MURRELL CJ:

The offender pleaded guilty to the offence that, on 17 June 2015 at Canberra, she cultivated a commercial quantity of the controlled plant cannabis with the intention of selling the plants or their products, or believing that someone else would do so.

This is an offence contrary to s 616(3) of the Criminal Code 2002 (ACT) which carries a maximum available penalty of 25 years' imprisonment and/or a fine of $375 000.

The commercial quantity for cannabis plants is 100 plants. The large commercial quantity is 1000 plants.

Facts

In the course of investigating a person known as Tuan Anh Le, on 17 June 2015 police executed a search warrant at a house at Nicholls, ACT. They located a sophisticated hydroponic set-up. Four bedrooms and two dining rooms had been converted to facilitate the hydroponic cultivation of cannabis. A total of 116 cannabis plants were being cultivated in the rooms. Some of the plants were of a significant size, as was illustrated by the photographs tendered.

In each of the cultivation rooms there was a ducting/ extraction fan system and an irrigation pump system, supplying water from the bathroom. The mains power supply to the premises had been modified before the meter box and the power had been diverted. Equipment such as pots, potting mix, lamps, pipes and pruning shears were located in the laundry, garage and kitchen of the residence.

Some cannabis had been harvested and was in the process of being dried, weighed and packaged for sale. Cannabis was drying on a drying rack in the lounge room. Digital scales, vacuum bags and a vacuum sealer were also located. In the kitchen, police located a set of instructions providing for a six‑week program of fertilising and tending to cannabis plants. The instructions set out the required room temperatures over the six-week period and the expected growth rate of the plants. A copy of the instructions is part of Exhibit 1.

The lounge area was being used for residential purposes. The offender and co‑offender were residing at the premises.

The offender's telephone was located on a bed in the…

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.

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Details

Case: [2016] ACTSC 88
Decision Date: 27 April 2016

CaseChat Overview and Summary

The case of R v Ng was heard by the County Court of Victoria. The defendant, Ng, was convicted of cultivating a commercial quantity of cannabis and was subject to a sentencing hearing to determine the appropriate punishment for his crime. Ng was found to be in possession of a substantial amount of cannabis plants and equipment used for cultivation. The dispute centred on the severity of the sentence to be imposed, particularly in relation to the sentence of his co-offender who was sentenced to a lesser term of imprisonment.

The primary legal issue before the court was whether the sentence imposed on Ng was proportionate to the offence committed and whether it aligned with the sentence given to his co-offender. The court was required to consider the nature and circumstances of the offence, the culpability of the offender, and the principles of sentencing, particularly the principle of parity between co-offenders. The defence argued that the sentence should reflect the lesser role played by Ng compared to his co-offender, who received a lesser sentence.

In delivering the judgment, the court acknowledged the importance of proportionality in sentencing. It noted that while the principle of parity suggests that co-offenders should receive similar sentences, it is not an absolute rule. The court took into account the significant quantity of cannabis plants found and the organised nature of the cultivation operation. It also considered the defendant’s criminal history and the need for general deterrence. The court determined that a sentence of 12 months' imprisonment was appropriate, with 49 days to be served and the remainder suspended on the condition that Ng entered into a six-month good behaviour order.

The court ordered that Ng be imprisoned for 12 months from 17 June 2015 to 27 April 2016, with the remaining 49 days suspended on the condition that he comply with a six-month good behaviour order. This decision balanced the need for punishment and deterrence with the principle of proportionality in sentencing.

Orders

Orders of the court

Sentenced to 12 months' imprisonment from 17 June 2015 to 27 April 2016. The remaining 49 days is suspended on the offender entering into a six month good behaviour order

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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