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Court of Criminal Appeal 14 December 2018

Ngo v R

[2018] NSWCCA 296

Drugs
CRIME SENTENCE APPEAL EX TEMPORE SENTENCING JUDGMENT SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Ngo v R [2018] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 14 December 2018
Judges: Hoeben CJ at CL, Rothman J, Price J

Background

The applicant pleaded guilty in the District Court at Parramatta to knowingly taking part in the cultivation of 231 cannabis plants by enhanced indoor means at a residential property in Carlingford, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The cultivation involved a sophisticated hydroponic setup spread across seven rooms, with electricity bypassed to avoid metering.

At sentencing, the court also took into account a Form 1 offence involving the cultivation of 453 cannabis plants at a separate Croydon Park property, and a related summary offence of cultivating 26 plants at Penshurst dealt with by way of a s 166 certificate. The applicant attended the Carlingford premises on no more than two occasions and was not the principal of the operation, but played an integral role at the lower end of the criminal enterprise.

The sentencing judge imposed an aggregate sentence of 4 years 6 months, with a non-parole period of 2 years 9 months, after applying a 25% discount for the utilitarian value of the guilty pleas. A finding of special circumstances resulted in the non-parole period being set at 61% of the total sentence. The applicant sought leave to appeal, contending the sentence was affected by error and was manifestly excessive.

  • Whether the sentencing judge failed to give adequate regard to the applicant's age as a young adult at the time of the offences
  • Whether the judge made an error in findings about the applicant's prospects of rehabilitation
  • Whether the judge failed to properly consider the applicant's evidence about his limited role in the cultivations
  • Whether the judge gave disproportionate weight to general deterrence and retribution
  • Whether the aggregate sentence of 4 years 6 months with a non-parole period of 2 years 9 months was manifestly excessive

Decision

The Court of Criminal Appeal, with all three judges in agreement, granted leave to appeal but dismissed the appeal on all grounds. Price J delivered the substantive reasons, with Hoeben CJ at CL and Rothman J both agreeing.

On the question of the applicant's age and rehabilitation, the Court found that the sentencing judge had in fact made favourable findings regarding the applicant's contrition, remorse, and prospects of rehabilitation. There was no demonstrated failure to take these matters into account. The applicant's youth was a relevant mitigating consideration, but the Court found no appellable error in the way the judge had balanced it against the other sentencing factors.

On the question of the applicant's role, the Court accepted that the agreed facts placed the applicant at the lower end of the criminal enterprise, but noted that the judge had found his role was nonetheless integral. The Form 1 offence, involving 453 cannabis plants at a separate premises, was a matter of some significance that the judge properly considered as having a substantial impact on the overall sentence.

As to manifest excess, the Court noted the principal offence involved a large commercial quantity of cannabis cultivated using sophisticated indoor means, attracting a maximum of 20 years imprisonment and a standard non-parole period of 10 years. Having regard to the Form 1 and Penshurst offences, the favourable sentencing findings, and the guilty plea discount, the Court concluded the aggregate sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's favourable findings on rehabilitation and remorse do not, without more, establish appellable error merely because those findings did not produce a lighter sentence.
  • A standard non-parole period of 10 years for the principal offence under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) reflects the serious legislative intent attached to large commercial quantity cannabis cultivation by enhanced indoor means.
  • Where a Form 1 offence involves a separate, larger cultivation operation, it can properly and significantly affect the sentence imposed on the principal count, even where the offender's role is assessed as being at the lower end of the criminal enterprise.
  • No error was established in the sentencing judge's approach to general deterrence and retribution, which the Court found was not given disproportionate weight relative to the objective seriousness of the offending.
  • An aggregate sentence must be assessed against all offences taken together, including Form 1 and s 166 certificate matters; comparisons with sentences for single, standalone offences do not straightforwardly demonstrate manifest excess.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1)(a), s 23(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37, s 166

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Clinton v R [2014] NSWCCA 320
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451
- R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277
- R v Makisi [2004] NSWCCA 333; (2004) 151 A Crim R 245
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Vaiusu v R [2017] NSWCCA 71
- Wei Zheng Wong v R [2010] NSWCCA 160
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460