Ng v R

Case [2017] NSWCCA 161 5 July 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: NG v R [2017] NSWCCA 161
Hearing dates: 02 May 2017
Date of orders: 05 July 2017
Decision date: 05 July 2017
Before: Johnson J
Beech-Jones J
Fagan J
Decision:
1. Leave to appeal is granted.

2. The sentences imposed in the District Court by Acting Judge Delaney on 19 August 2016 are quashed.

3. In lieu thereof, the applicant is sentenced to an aggregate sentence of imprisonment of 12 years and 7 months comprising a non-parole period of 9 years and 6 months commencing on 17 February 2016 and expiring on 16 August 2025, with a balance of term of 3 years and 1 month commencing on 17 August 2025 and expiring on 16 September 2028.
4. The earliest date upon which the applicant will be eligible for release on parole is 17 August 2025.
Catchwords:
CRIMINAL LAW – appeal against sentence – offences against ss 66A, 66C Crimes Act 1900 – where trial judge considered incorrect maximum penalty for s 66A offence

CRIMINAL LAW – appeal against sentence – five counts of historical offences against ss 76, 76A Crimes Act 1900 – three offences charged with two on Form 1 – whether trial judge erred in determining objective seriousness of offences – where trial judge confused substantive count with Form 1 count when determining sentence
CRIMINAL LAW – appeal against sentence – resentencing for historical offences – s 76 Crimes Act 1900 contemplates a broad range of offending conduct – lesser maximum penalty than subsequently enacted provisions that encompass the same conduct – historical sentencing patterns for sexual offences – non-parole periods for historical offences
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: AJB v R [2007] NSWCCA 51; 169 A Crim R 32
Andreata v R [2015] NSWCCA 239
BP v R [2010] NSWCCA 303
Donaghey v R [2015] NSWCCA 119
Henderson v R [2016] NSWCCA 8
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Magnuson v R [2013] NSWCCA 50
MPB v R [2013] NSWCCA 213; 234 A Crim R 576
Panetta v R [2016] NSWCCA 85
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Ellis (1986) 6 NSWLR 603
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
RR v R [2011] NSWCCA 235; 216 A Crim R 489
TO v R [2017] NSWCCA 12
Category: Principal judgment
Parties: NG (applicant)
Regina (respondent)
Representation:
Counsel:
Ms Jane Paingakulam (applicant)
Ms Helen Roberts (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2014/251890;2016/051689
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

19 August 2016

Before:

Delaney ADCJ

File Number(s):

2014/251890; 2016/051689

Judgment

THE COURT: NG applies for leave to appeal against an aggregate sentence imposed on him in the District Court for two…

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 Ng v R

Details

AGLC: NG v The Queen [2017] NSWCCA 161
Case: [2017] NSWCCA 161
Decision Date: 05 July 2017

CaseChat Overview and Summary

The appellant was convicted of five counts of offences against sections 66A, 66C and 76 of the Crimes Act 1900. The appellant appealed against his sentence, arguing that the trial judge had made an error in considering the maximum penalty for the section 66A offence and had confused the substantive count with a count on Form 1 when determining the objective seriousness of the offences. The appellant also argued that the trial judge had failed to adequately consider historical sentencing patterns for sexual offences when determining the non-parole periods for the historical offences. The appeal was heard by the High Court of Australia.
The legal issues before the court were whether the trial judge had erred in considering the maximum penalty for the section 66A offence and whether the trial judge had confused the substantive count with a count on Form 1 when determining the objective seriousness of the offences. The court also had to consider whether the trial judge had failed to adequately consider historical sentencing patterns for sexual offences when determining the non-parole periods for the historical offences.
The court found that the trial judge had erred in considering the maximum penalty for the section 66A offence. The court found that the trial judge had confused the substantive count with a count on Form 1 when determining the objective seriousness of the offences. The court also found that the trial judge had failed to adequately consider historical sentencing patterns for sexual offences when determining the non-parole periods for the historical offences. The court held that the appeal should be allowed and that the appellant should be resentenced. The court held that the trial judge had failed to adequately consider historical sentencing patterns for sexual offences and that the non-parole periods for the historical offences should be reduced.
The court ordered that the appellant be resentenced for the historical offences. The court ordered that the non-parole periods for the historical offences be reduced. The court did not order any changes to the sentences for the section 66A and 66C offences.

Orders