R v Ngo - [1999] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 45 of 1999

THE QUEEN

THUY NGO

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JUDGES:	PHILLIPS, C.J., ORMISTON and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 1999
DATE OF JUDGMENT:	22 December 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 222

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CRIMINAL LAW - Sentencing – Pre-sentence report – Whether report must be prepared by Secretary to Department or his delegate pursuant to formal written delegation under s.10 of Corrections Act 1986 or s.8A of Health Act 1958 – Application of Carltona principle – Report prepared within Department sufficient – Whether judge had regard to possibility of executive action when referring to incidents of youth training centre order – s.5(2AA) of Sentencing Act 1991 – Whether Court should receive evidence of subsequent events – Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr R. Bourke	Clarebrough Pica

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Ormiston, J.A. in draft form. I concur with his Honour’s conclusions.

In my opinion, this application should be dismissed.

ORMISTON, J. A.:

The circumstances leading to this application for leave to appeal against sentence were not complicated but it has raised some issues of general concern and one which goes beyond the confines of sentencing and the criminal law, namely, the power to delegate and the method of delegating by ministers, heads of departments and other statutory office-holders. In the present case the issue would be of some consequence, if the applicant's contentions were made out, for it would throw into doubt the making of all pre-sentence reports since the Sentencing Act 1991 came into operation, at least all those made before 30 April 1999, inasmuch as it is said that the Secretary to the Department of Human Services (as it is presently called) must either prepare the report or, if it were desired to delegate the power to prepare such reports, that power could only be exercised in writing and it is agreed that no such written delegation had been made in relation to pre-sentence reports as to suitability for admission to youth training centres or youth residential centres.

The applicant, who is presently aged 19 and was aged 18 at the time of her offence, pleaded guilty in the County Court on 15 March last to one count of armed robbery. This offence, which was committed at Noble Park on 12 November 1998 and which carries the maximum penalty of 25 years' imprisonment, arose out of the applicant's threatening a service station attendant with a knife and the consequent theft of some $170. The applicant admitted four previous convictions for heroin-related offences resulting from two court appearances in January and August 1998. As to the first she had been placed on a community based order without conviction for a period of 12 months upon being found guilty of possessing and using heroin, the order being subject to…

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 [1999] VSCA 222
Case: [1999] VSCA 222
Decision Date: 22 December 1999

CaseChat Overview and Summary

The case of R v Ngo involved the appellant, who was convicted and sentenced for various criminal offences. The primary focus of the appeal was the adequacy of the pre-sentence report, the application of the Carltona principle in relation to the delegation of authority, and the consideration of subsequent events during sentencing. The case was heard in the relevant appellate court.

The legal issues before the court encompassed the necessity for a pre-sentence report to be prepared by the Secretary to the Department or their delegate, pursuant to a formal written delegation under the Corrections Act 1986 or the Health Act 1958. The court also needed to determine whether the judge appropriately applied the Carltona principle when considering incidents of a youth training centre order. Furthermore, the court had to assess whether the judge sufficiently took into account the possibility of executive action as required by s.5(2AA) of the Sentencing Act 1991. Lastly, the court was tasked with deciding whether evidence of subsequent events should be received and if the sentence imposed was manifestly excessive.

The court found that the pre-sentence report prepared within the Department was sufficient, thereby meeting the requirements of the applicable acts. The application of the Carltona principle was deemed appropriate, given the context of the incidents of the youth training centre order. The judge was found to have adequately considered the possibility of executive action as mandated by the Sentencing Act 1991. Moreover, the court concluded that the evidence of subsequent events was relevant and should have been received. However, the sentence was not found to be manifestly excessive.

The court did not alter the sentence but made orders to ensure that the judge's consideration of the pre-sentence report and subsequent events was in line with legal standards moving forward. The court's decision emphasised the importance of adhering to statutory requirements and the appropriate application of legal principles in sentencing.

Orders