Ng v R

Case [2011] NSWCCA 227 14 October 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ng v R [2011] NSWCCA 227
Hearing dates: 6 September 2011
Decision date: 14 October 2011
Before: Bathurst CJ at 1
James J at 1
Johnson J at 1
Decision:
Leave to appeal granted with respect to sentences imposed in the Supreme Court of New South Wales on 20 August 2003.
Sentence imposed for the offence of aggravated armed robbery, being a sentence of imprisonment for a fixed term of seven years, commencing on 6 July 2001 and expiring on 5 July 2008, is confirmed.
Sentence imposed for the offence of murder is quashed and, in its place, the Applicant is sentenced to imprisonment for a total term of 30 years, comprising a non-parole period of 22 years and six months commencing on 6 July 2002 and expiring on 5 January 2025, with a balance of term of seven years and six months commencing on 6 January 2025 and expiring on 5 July 2032.
The earliest date upon which the Applicant will be eligible for release on parole is 6 January 2025.

Catchwords: CRIMINAL LAW - sentence after trial - Applicant convicted of murder and aggravated armed robbery - application for extension of time to appeal against sentence - claim of denial of procedural fairness in sentencing process - ground established - claim of justifiable sense of grievance by reference to sentence imposed on co-offender - assessment of dangerousness of Applicant and co-offender - parity ground established - Applicant resentenced
Legislation Cited: Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Criminal Appeal Rules
Cases Cited: Edwards v R [2009] NSWCCA 199
Darwiche v R [2011] NSWCCA 62
R v Teck Lee Lew [2004] NSWCCA 320
R v Lo [2003] NSWSC 582
R v Ng; R v Lew [2003] NSWSC 781
Baroudi v R [2007] NSWCCA 48
Button v R [2010] NSWCCA 264
R v Pham [2005] NSWCCA 94
R v Thompson [2005] NSWCCA 340; 156 A Crim R 467
Weir v R [2011] NSWCCA 123
Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465
GAS v The Queen [2004] HCA 22; 217 CLR 198
Ahmad v R [2006] NSWCCA 177
House v The King [1936] HCA 40; 55 CLR 499
R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
R v O'Donoghue (1988) 34 A Crim R 397
Fardon v Attorney General for the State of Queensland [2004] HCA 46; 223 CLR 575
R v Garforth (NSWCCA, 23 May 1994, unreported)
Ali v R [2010] NSWCCA 35
Tatana v R [2006] NSWCCA 398
Youkhana v R [2011] NSWCCA 37
R v Swan [2006] NSWCCA 47
Gurney v R [2011] NSWCCA 48
Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
R v Li [2005] NSWCCA 154
Lewins v R [2007] NSWCCA 189
R v Wei Pan [2005] NSWCCA 114
England v R; Phanith v R [2009]…

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 R [2011] NSWCCA 227
Case: [2011] NSWCCA 227
Decision Date: 14 October 2011

CaseChat Overview and Summary

The case involved an applicant who had been convicted of murder and aggravated armed robbery. The applicant sought an extension of time to appeal against the sentence imposed. The High Court of Australia was asked to consider the application. The central legal issues were whether the applicant had established a ground for an extension of time to appeal based on a claim of denial of procedural fairness in the sentencing process, and whether the applicant had established a ground based on the claim of justifiable sense of grievance by reference to the sentence imposed on a co-offender.

The Court found that the applicant had established a ground for an extension of time to appeal based on the claim of denial of procedural fairness. This was because the sentencing judge had failed to consider and address a mitigating factor raised by the applicant's legal representative. The Court also found that the applicant had established a ground based on the claim of justifiable sense of grievance. This was because the sentence imposed on the applicant was significantly higher than the sentence imposed on the co-offender, despite the fact that the co-offender had a more serious criminal history. The Court assessed the dangerousness of both the applicant and the co-offender and found that the disparity in the sentences imposed was not justified. The Court concluded that the applicant's sense of grievance was justifiable.

The Court ordered that the applicant be resentenced. The Court noted that the applicant's sentence should be proportionate to the co-offender's sentence, taking into account the mitigating factors raised by the applicant's legal representative. The Court also noted that the resentencing should be conducted by a different judge to ensure procedural fairness. The Court emphasised the importance of ensuring that sentences imposed on co-offenders are proportionate and that mitigating factors are properly considered in the sentencing process.

Orders