R v Ngo
[2007] VSCA 240
•25 October 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 238 of 2006
| THE QUEEN |
| v. |
| DUC HIEU NGO |
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JUDGES: | VINCENT and NEAVE JJA and CURTAIN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 October 2007 | |
DATE OF JUDGMENT: | 25 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 240 | |
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Criminal law – Conviction – Applicant found guilty by a jury of cultivating not less than a commercial quantity of a narcotic plant, namely cannabis (count 1) and trafficking in a commercial quantity drug of dependence, namely cannabis (count 3) – Double punishment for same acts – Crown conceded that conviction on count 3 could not stand as s 51(1) of the Interpretation of Legislation Act 1984 applied – Application granted and appeal allowed.
Criminal law – Sentencing – Sentenced to three years for cultivation (count 1) and 18 months for theft of electricity (count 2), total effective sentence of three years and nine months – Whether guilty plea, minimal record, remorse family and other circumstances warranted greater degree of leniency – Held that sentence for count 1 was appropriate, but 18 months for theft was manifestly excessive – Applicant re-sentenced six months on count 2, total effective sentence of three years and three months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr T Kassimatis | Valos Black & Associates |
VINCENT JA:
I invite Neave JA to deliver the first judgment.
NEAVE JA:
Duc Hieu Ngo, the applicant, was found guilty of cultivating not less than a commercial quantity of a narcotic drug (count 1) and trafficking in a commercial quantity of a drug of dependence (count 3), by an 11 to 1 majority of a jury. The drug was Cannabis L. The applicant pleaded guilty to one count of theft of electricity belonging to Origin Energy (count 2).
A judge of the County Court sentenced the applicant to three years' imprisonment on count 1, 18 months' imprisonment on count 2 and three years' imprisonment on count 3. The judge ordered that the sentences on counts 1 and 3 were to be served concurrently and that nine months of the sentence imposed on count 2 should be served cumulatively on count 1, resulting in a total effective sentence of three years and nine months. A non-parole period of two years and three months was fixed.
The applicant initially appealed against conviction on count 3 on two grounds. The second ground was that the applicant should not have been convicted and sentenced on count 3 because the acts on which count 3 were based were the same acts as those which provided the basis for the conviction on count 1. Prior to the hearing of the matter, the Crown conceded that the second ground of appeal was made out and that the conviction on count 3 was to be set aside. That concession is clearly correct. The convictions on counts 1 and 3 were based on the same acts of cultivation. The elements of the offences were not identical, and nor were the elements of one count wholly included in the other count. Thus, the plea of autrefois convict was not available to bar the conviction on count 3.[1]
[1]Pearce v R (1998) 194 CLR 610, 618. See also R v Langdon (2004) 11 VR 18, 27; R v Mason [2006] VSCA 55; and R v Sessions [1998] 2 VR 304.
However, s 51(1) of the Interpretation of Legislation Act 1984 provides that:
Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
In this case the applicant admitted to cultivating marijuana plants, though in his police record of interview he said he was not aware that the weight of the plants exceeded 25 kilograms. The applicant did not actually sell the plants, so that his conviction on count 3 must have been based on the fact that the marijuana was in his possession for sale.[2] Thus, the conviction on count 3 is based on the same acts as the conviction on count 1.[3] I would therefore set aside the conviction on count 3 and direct a verdict of acquittal on that count.
[2]See Drugs Poisons and Controlled Substances Act 1981, s 70 (definition of traffick) (c).
[3]As in R v Langdon (2004) 11 VR 18, 35 (Eames JA).
The setting aside of the conviction on count 3 requires the applicant to be re-sentenced on counts 1 and 2. I now set out the circumstances of the offender and the background to the offences which are relevant in re-sentencing him.
Mr Ngo is 48 years old and was born in Vietnam. He came to Australia with his wife and baby daughter in 1983 after they fled Vietnam and spent about a year in a refugee camp in Hong Kong. A second daughter was born to them after they came to Australia. The applicant and his wife worked hard doing piece work as sewing machinists and were able to buy two properties with their savings. One was purchased in the name of the applicant's wife and the other is in his older daughter's name. Both properties are heavily mortgaged.
The applicant came into conflict with his wife, who disagreed with the applicant sending money back to his family in Vietnam and who was concerned about his gambling addiction. The couple are now separated and his wife continues to live in the family home. The applicant continues to provide some financial support for his wife and his daughters remain close to him. Both of the daughters wrote testimonials saying that the applicant was very remorseful and that his offending was motivated by the desire to look after his family in Vietnam, to which the judge below referred in his reasons. They were both present during the plea hearing and the elder daughter was present for the entire trial.
The applicant began growing cannabis when he got into financial difficulty. He had developed a gambling addiction and also regularly sent about $500 to $600 per month back to his elderly parents in Vietnam. His parents are caring for the children of the applicant's sister, who has died, and his father is suffering from a terminal illness. Another sister in Vietnam is mentally ill and is receiving care in an institution there.
The learned sentencing judge was satisfied that the applicant was truly remorseful for his offending. The applicant admitted that he had cultivated a commercial quantity of cannabis in his police interview, though he denied that he was aware that the amount cultivated was not less than a commercial quantity. The applicant received a very favourable character reference from Mr Dinh, for whom the applicant worked as a baker after he was apprehended for these offences. Mr Dinh said he was confident that the applicant would not re-offend. The learned judge below said that the applicant was entitled to a merciful sentence because of his remorse and the circumstances which led him to offend.
Counsel for the applicant submitted that the sentence of three years imposed on count 1 could not be regarded as merciful, having regard to the applicant's age, history of hard work, the motivation for his offending, and to the fact that the applicant had had only one prior court appearance for theft of a pair of scissors from a shop. Counsel for the Crown submitted that even when these matters were taken into account, the sentence of three years was well within the range of sentences imposed for the cultivation of not less than a commercial quantity of marijuana. A sentence of three years' imprisonment is only 12 percent of the maximum sentence of 25 years applicable to this offence.
In re-sentencing the applicant on count 1, I have taken account of the matters relied upon by his counsel, including the fact that the offence was motivated in part by his need to support his family in Vietnam, his remorse, and the fact that the learned sentencing judge accepted that it was a negligible risk that the applicant would re-offend.
Nevertheless, the sentence which is imposed must denounce the applicant's conduct and deter others from committing similar offences. It is not unusual for people convicted of cultivating not less than a commercial quantity of marijuana to have no prior convictions for drug offences. The applicant did not offend because he was addicted to marijuana. He intended to raise money by selling the plants he cultivated. When the police raided the premises they found 67 cannabis plants: 36 in one bedroom and 31 in another. The weight of the plants was 50.5 kilograms, double the commercial quantity. Because the plants were female plants, they contained a high concentration of THC, the active ingredient in marijuana. The evidence of Detective Sergeant Stewart was that if the crop had been sold in small lots it would have yielded a return of around $194,500 to $291,750, and that if the whole crop had been sold on a wholesale basis, it would have been worth between $48,625 and $77,800. The offence was not committed on the spur of the moment. In his record of interview the applicant said that he borrowed money from a friend to purchase the plants and the equipment used to grow them, including tubs, lights, transformers for monitors and a watering system. He paid his friend back when he won around $10,000 at the casino. He cultivated the plants for four months. There was evidence that the plants had been pruned to maximise their yield. The applicant paid an electrician $450 to divert the electricity around the meter.
Having regard to the nature and gravity of the offence and to the mitigating factors to which I have referred, I consider that the applicant should be sentenced to imprisonment for a term of three years on count 1.
Counsel for the Crown conceded that the sentence of 18 months' imprisonment imposed for the theft of electricity was outside the range of sentences imposed for this type of offence. He submitted that a sentence of six months was appropriate and that some measure of cumulation would be available in these circumstances. I note that the applicant has consented to an order for compensation in favour of Origin Energy in the sum of $4,627.95, representing the value of the electricity which he stole. I would sentence the applicant to six months' imprisonment on count 2, three months of which should be served cumulatively on the sentence of three years' imprisonment for count 1. That results in a total effective sentence of three years and three months. I would fix a non-parole period of two years.
VINCENT JA:
I agree.
CURTAIN AJA:
I have had the advantage of reading the draft judgment of Neave JA and agree with her Honour's reasons and the proposed orders.
No doubt the matters personal to the applicant generated some sympathy for his position and a degree of leniency was warranted. His Honour's sentencing remarks reflected this. The sentence of three years in respect of count 1 appropriately addressed the nature and gravity of the offending conduct, balanced with the matters personal to the applicant, including his motivation for committing the offences, his good work record, his otherwise good character, his full and frank admissions in his record of interview, his preparedness to plead guilty to counts 1 and 2, and his remorse. His Honour's sentence recognised that this was a sophisticated and successful operation, that it required a degree of planning and wherewithal, that it involved the expenditure of a significant sum of money to purchase the equipment and set it up, and it required the applicant to tend to a sizeable crop. When one considers the maximum penalty for the offence of cultivating a narcotic drug, namely cannabis L, in not less than a commercial quantity is 25 years, then clearly the sentence imposed on count 1 is a merciful one.
As to the sentence imposed in respect of count 2, counsel for the respondent has conceded that 18 months is outside the range of sentences generally imposed for the crime of theft committed in these circumstances. Other than to say that it may be that his Honour took into account that this was the second time the applicant had been before the court on a charge of theft, otherwise I accept that the sentence of imprisonment is higher than would otherwise be imposed in cases of this kind, although it was appropriate for his Honour to cumulate part of the sentence imposed to reflect the discrete nature of the offending conduct.
VINCENT JA:
The order of the Court is:
The application for leave to appeal against conviction on count 3 is granted. The appeal is treated as instituted and heard instanter. The conviction sustained by the appellant on count 3 is quashed and the sentence passed thereon is set aside. The Court directs a judgment and verdict of acquittal be entered on that count.
The application for leave to appeal against sentence is granted. The appeal is treated as instituted and heard instanter. The sentences imposed in the court below are quashed and the applicant is re-sentenced as follows:
On count 1: three years' imprisonment;
On count 2: six months' imprisonment.
The Court directs that three months of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1, making for an effective sentence of three years and three months' imprisonment. A non-parole period of two years is fixed.
It is declared that the period of 468 days is to be reckoned as already served under the sentence and the declaration is to be noted in the records of the Court.
The compensation order is confirmed.The Court grants to the appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act.
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