R v Ngo - [2007] VSCA 240

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…

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 Ngo

Details

AGLC: R v Ngo [2007] VSCA 240
Case: [2007] VSCA 240
Decision Date: 25 October 2007

CaseChat Overview and Summary

The applicant was found guilty by a jury of cultivating not less than a commercial quantity of a narcotic plant, namely cannabis, and trafficking in a commercial quantity drug of dependence, namely cannabis. The applicant also pleaded guilty to stealing electricity. He was sentenced to three years for the first count, 18 months for the second, and the sentences were to run concurrently. The applicant appealed against his conviction on the trafficking charge and his sentence on the theft charge. The court was required to determine whether the conviction for trafficking in a commercial quantity drug could stand, and whether the sentence for the theft charge was appropriate.

The court held that the conviction for trafficking in a commercial quantity drug could not stand as it was in breach of section 51(1) of the Interpretation of Legislation Act 1984, which prohibits cumulative punishment for the same acts. The court also found that the sentence for the theft charge was manifestly excessive, given the applicant's minimal record, remorse, and family and other circumstances. The court re-sentenced the applicant to six months on the theft charge, reducing the total effective sentence to three years and three months.

The court granted the application and allowed the appeal. The conviction on the trafficking charge was quashed, and the applicant was re-sentenced to six months on the theft charge, with the total effective sentence being three years and three months. The court's decision highlights the importance of avoiding cumulative punishment for the same acts and the need to consider individual circumstances when sentencing.

Orders