Court of Criminal Appeal
New South Wales
Case Title: Ngo v R Medium Neutral Citation: [2013] NSWCCA 142 Hearing Date(s): 1 February 2013 Decision Date: 13 June 2013 Before: Simpson J at [1]; Johnson J at [92]; Grove AJ at [93] Decision: The application for an extension of time in which to file an application for leave to appeal is refused
Catchwords: CRIMINAL LAW - appeal - application for extension of time to file application - leave to appeal against sentence of life imprisonment - whether sentencing judge erred in sentencing applicant pursuant to provisions of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred in finding of fact - political motive for murder - whether sentencing judge erred in failing to take into account subjective factors relevant to the applicant - no error found - application for extension of time refused Legislation Cited: Crimes (Amendment) Act 1955
Crimes (Appeal and Review) Act 2001
Crimes (Life Sentences) Amendment Act 1989
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Crimes Act 1900
Crimes Amendment (Mandatory Life Sentences) Act 1996
Crimes Legislation Amendment (Sentencing) Act 1999
Criminal Appeal Act 1912
Criminal Appeal Rules
Sentencing Act 1989
Statute Law (Miscellaneous Provisions) Act 2001Cases Cited: Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
Edwards v R [2009] NSWCCA 199
Ngo v The Queen [2004] HCATrans 185.
Phuong Canh Ngo - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2010] NSWSC 981
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v Debs [2012] NSWSC 119
R v Eastman (Supreme Court of ACT, Carruthers J, 10 November 1995, unreported)
R v Fernando [1999] NSWCCA 66
R v Garforth (NSWCCA, 23 May 1994, unreported)
R v Gilham [2009] NSWSC 138
R v Harris [2000] NSWCCA 469; 50 NSWLR 409
R v Harris [2000] NSWSC 285; 111 A Crim R 415
R v Kalajzich (1997) 94 A Crim R 41
R v Kocan [1966] 2 NSWR 565
R v Lewis (Supreme Court of New South Wales, Ireland J, 9 June 2000, unreported)
R v Lewis [2001] NSWCCA 448
R v Maclay (1990) 19 NSWLR 112
R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Ngo [2003] NSWCCA 82; 57 NSWLR 55
R v Phuong Canh Ngo [2001] NSWSC 1021; 125 A Crim R 495
R v Rose [1999] NSWCCA 327
Stumbles v R [2006] NSWCCA 418Texts Cited: New South Wales Law Reform Commission, Sentencing - Report 79 (December 1996)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 May 1989 at 7905
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2324
New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 December 1989 at 14528Category: Principal judgment Parties: Phuong Canh Ngo (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
J Renwick SC/D Tynan…
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- Ngo v R [2013] NSWCCA 142
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- [2013] NSWCCA 142
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CaseChat Overview and Summary
The court found that there was no error in the sentencing judge's decision. The court held that the sentencing judge was correct in finding that the murder was politically motivated, and that this was a relevant aggravating factor in sentencing. The court also found that the sentencing judge did not err in failing to take into account subjective factors relevant to the applicant, as these factors had already been considered by the sentencing judge. The court noted that the Sentencing Procedure Act was in force at the time of the offence and the sentence, and that the provisions of the Act were correctly applied by the sentencing judge. The court rejected Ngo's appeal and dismissed the application for leave to appeal against sentence.
The High Court of Australia refused Ngo's application for an extension of time to file his application for leave to appeal against sentence. The court held that there was no merit in Ngo's appeal and that the sentencing judge's decision was correct. The court did not find any errors in the sentencing judge's assessment of the political motive for the murder, or in the sentencing judge's consideration of the subjective factors relevant to Ngo. The court noted that the Sentencing Procedure Act was in force at the time of the offence and the sentence, and that the provisions of the Act were correctly applied by the sentencing judge. The appeal was dismissed, and the application for an extension of time was refused.
Orders
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Background
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Ratio Decidendi
Legal Principle Established
It is convenient here to mention also s 19 of the Sentencing Procedure Act, which was, and is, in the following terms:"19 Effect of alterations in penalties(1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty.(2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.(3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty." Because the enactment of the Sentencing Procedure Act coincided with the repeal of the Sentencing Act, certain transitional provisions were considered necessary. They were, however, limited. Clause 37 of Sch 2 appeared under the heading "General Saving" and provided as follows:"Subject to the regulations:(a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act may be continued and completed under the old legislation as if the [Sentencing Procedure Act] had not been enacted, and(b) subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of this Act."The "appointed day" was 3 April 2000. The "old legislation" included the Sentencing Act. That is, the Sentencing Procedure Act preserved anything begun before 3 April 2000 under a provision of the Sentencing Act for which there was a corresponding provision in the Sentencing Procedure Act. Otherwise, from 3 April 2000, the Sentencing Act was defunct. Another consequence of the passing of the Sentencing Procedure Act was the abolition of the pre-existing distinction between felonies and misdemeanours, and the abolition of the punishments of penal servitude, and imprisonment with hard or light labour. Thenceforth, custodial penalties (for adult offenders) are known simply as "imprisonment". Consequential amendments to, for example, s 19A of the Crimes Act were made. Notwithstanding this apparent plethora of legislation, the relevant statutory provisions in force as at 5 September 1994 were s 19A of the Crimes Act, and the Sentencing Act. The Sentencing Act was, in substance, procedural. By s 19A of the Crimes Act the applicant was liable, in respect of Mr Newman's murder, to a penalty of penal servitude for life, but, by reason of sub-s (3) and s 442, a fixed term could be imposed. However, by sub-s (2), if a sentence of penal servitude for life were imposed, then the applicant would, subject to executive clemency, be required to serve the whole of that sentence.