R v Ngan - [2020] NSWDC 493

District Court

New South Wales

Medium Neutral Citation: R v Ngan [2020] NSWDC 493
Hearing dates: 5 June 2020
Date of orders: 5 June 2020
Decision date: 05 June 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of 14 years with a non-parole period of 9 years, 3 months: at [36].

Catchwords:
CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Circumstances of offence — Co-offenders — Parity — Deterrence — Establishing relevant matters — General principles — Moral culpability — s 16BA schedule — Objective seriousness — Purposes of sentencing
SENTENCING — Subjective considerations on sentence — Age of offender — Deportation — Drug addiction

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Chuen v R [2009] NSWCCA 116
Ma v R [2010] NSWCCA 320
R v Au (Unreported NSWDC 7 Nov 2008)
R v Balloey [2014] NSWCCA 165
R v Mo [2007] NSWCCA 61
R v Wu; R v Lai [2019] NSWDC 771
R v Zeng [2008] NSWCCA 183

Texts Cited:
Nil

Category: Sentence
Parties:
Regina (Crown)
Tsz Yeung Ngan (Offender)
Representation:
Mr Hughes (Crown Prosecutor)
Mr Lange (Counsel for the Offender)

File Number(s): 2018/146266

Judgment

Mr Ngan, now 24 years of age, appears for sentence in relation to the importation of about 200 kilograms of methylamphetamine with a wholesale value of about $22 million and a street value between $30 million and $80 million. The charge is pursuant to s 307.51 of the Criminal Code 1995 (Cth), of attempting to possess commercial quantity of an unlawfully imported border controlled drug. To be taken into account on s 16BA schedule, is a charge of importing a commercial quantity of a border controlled drug. The offender has acknowledged that he wishes to be sentenced taking into account that matter.
I have previously sentenced two co-offenders Wu and Lai on 26 August 2019 (R v Wu; R v Lai [2019] NSWDC 771); Wu was sentenced term of 15 years imprisonment with a non-parole period of ten years, and Lai to 12 years imprisonment with a non-parole period of eight years. Both of those sentences were imposed bearing in mind a 25% discount for their pleas of guilty. In the circumstances of this case I am satisfied that a 25% discount for the plea of guilty should also be allowed in this case, even though the plea came at a slightly later stage, given that there was an offer to plead at an earlier stage which was initially rejected by the Commonwealth Director of Public Prosecutions.
Ngan has been in custody since his arrest on 9 May 2018 and it is common ground that a term of imprisonment should be imposed and commence on that day.

Facts on Sentence

In short, the methylamphetamine was contained in a large number of packets secreted into 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.

Continue reading R v Ngan

Details

AGLC: R v Ngan [2020] NSWDC 493
Case: [2020] NSWDC 493
Decision Date: 05 June 2020

CaseChat Overview and Summary

The matter before the court was a criminal appeal against the sentence imposed upon the appellant for drug trafficking offences under the Commonwealth laws. The appellant, Ngan, had been convicted of importing a large quantity of a prohibited drug into Australia. The appeal was against both the length and the non-parole period of the sentence imposed, which was 14 years imprisonment with a non-parole period of 9 years, 3 months. The appellant's arguments focused on the subjective factors relevant to his sentencing, including his age, his status as a non-citizen with a potential for deportation, and his history of drug addiction.

The central legal issues the court had to decide were whether the sentence imposed was excessive, and if the sentencing judge had appropriately considered the relevant subjective factors. The appellant argued that the sentence was disproportionate to the offending, and that the judge had failed to adequately weigh his personal circumstances, including his age and addiction issues, in determining the penalty. The Crown contended that the sentence was appropriate given the seriousness of the offence and the need for general deterrence.

The court found that while the appellant's personal circumstances were indeed relevant, they did not warrant a reduction in the sentence. The court emphasised the importance of the objective seriousness of the offence, which involved a substantial quantity of a dangerous drug, and the need to deter such activities. The court concluded that the sentence was neither excessive nor manifestly inadequate, and that the sentencing judge had appropriately balanced the various considerations in arriving at the penalty. The appeal was therefore dismissed, and the original sentence was upheld.

Orders

Orders of the court

A term of imprisonment of 14 years with a non-parole period of 9 years, 3 months: at [36].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Ngan [2020] NSWDC 493
Hearing dates:	5 June 2020
Date of orders:	5 June 2020
Decision date:	05 June 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 14 years with a non-parole period of 9 years, 3 months: at [36].
Catchwords:	CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Circumstances of offence — Co-offenders — Parity — Deterrence — Establishing relevant matters — General principles — Moral culpability — s 16BA schedule — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Age of offender — Deportation — Drug addiction
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Chuen v R [2009] NSWCCA 116 Ma v R [2010] NSWCCA 320 R v Au (Unreported NSWDC 7 Nov 2008) R v Balloey [2014] NSWCCA 165 R v Mo [2007] NSWCCA 61 R v Wu; R v Lai [2019] NSWDC 771 R v Zeng [2008] NSWCCA 183
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Tsz Yeung Ngan (Offender)
Representation:	Mr Hughes (Crown Prosecutor) Mr Lange (Counsel for the Offender)
File Number(s):	2018/146266