Nono Ngaa v The Queen - [2015] VSCA 335

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0115

NONO NGAA	Applicant
V
THE QUEEN	Respondent

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JUDGES:	WHELAN, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2015
DATE OF JUDGMENT:	4 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 335
JUDGMENT APPEALED FROM:	DPP v Ngaa (County Court of Victoria, Judge Howard, 18 December 2013)

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CRIMINAL LAW – Extension of time – Leave application – Conspiracy to commit armed robbery – Manifest excess – Parity – Sentence of co-accused reduced by separate court – Application for extension of time granted – Application for leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Traczyk	Turnbull Lawyers
For the Crown	Mr G J C Silbert QC	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
BEACH JA
KAYE JA:

On 18 December 2013, the applicant was sentenced in the County Court at Ballarat by his Honour Judge Howard on a number of charges to which he pleaded guilty as follows:

Charge on indictment C1108203.2

Offence

Maximum Penalty

Sentence

Cumulation

1. Conspiracy to commit an armed robbery [Crimes Act 1958 s 321(1)]
25 years

[Crimes Act 1958 s 321P]
5 years 3 years

3. Aggravated burglary [Crimes Act 1958 s 77(1)] 25 years [Crimes Act 1958 s 77(2)] 5 years Base

4. Theft [Crimes Act 1958 s 74] 10 years [Crimes Act 1958 s 74] 18 months –

11. Theft of motor car [Crimes Act 1958 s 74] 10 years [Crimes Act 1958 s 74] 18 months –

13. Possessing unregistered handgun [Firearm Act 1996 s 7B(1)] 7 years [Firearm Act 1996 s 7B] 12 months 6 months

Total Effective Sentence: 8 years 6 months

Non-Parole Period: 5 years 6 months

Pre-sentence Detention Declared: 735 days

6AAA Statement: 11 years’ imprisonment with a non-parole period of 8 years and 6 months

Other orders: •          Forensic Sample Order
•          Disposal Order
•          Licence cancelled and disqualified for 3 years

By an application filed in this Court on 15 June 2015, the applicant seeks an extension of time within which to apply for leave to appeal against that sentence. The grounds upon which the applicant proposes to seek leave to appeal are as follows:

(1)That the sentence imposed on charge 1 is manifestly excessive.
(2)That the sentences imposed both individually and in total do not adequately reflect the principles of parity when compared to the sentences imposed on Lloyd Murrell, a co-offender in respect of charges 1 and 3, and on Tekin Saner and Mathew Kamal, who were also co-offenders in respect of charge 1.

In submissions before us, counsel for the applicant realistically conceded that ground 2 is only arguable in respect of the sentence imposed on the applicant on charge 1.

In the course of hearing the application, for reasons that we will shortly refer to, it became clear that the application should not succeed unless we are satisfied that the proposed…

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 Nono Ngaa v The Queen

Details

AGLC: Nono Ngaa v The Queen [2015] VSCA 335
Case: [2015] VSCA 335
Decision Date: 4 December 2015

CaseChat Overview and Summary

In the case of Nono Ngaa v The Queen, the appellant challenged the sentence imposed upon him by the Supreme Court of Queensland. The appellant was convicted of conspiracy to commit armed robbery and sought to appeal the sentence on the grounds of its excessiveness, following a reduction in the sentence of a co-accused by another court. The appeal was heard by the High Court of Australia, which had to decide whether the appellant's application for an extension of time and leave to appeal should be granted.

The central legal issue before the court was whether the appellant's application for an extension of time to appeal and leave to appeal was justified, given the manifest excess of the sentence and the subsequent reduction of the co-accused's sentence. The appellant argued that the disparity in sentencing between him and his co-accused demonstrated a manifest excess, warranting an extension of time and leave to appeal. The respondent, the Crown, contended that the appellant's application should be denied as it did not meet the criteria for an extension of time and leave to appeal.

The court acknowledged that the appellant's sentence was indeed excessive in light of the co-accused's reduced sentence. However, the court held that the mere fact of a disparity in sentencing did not automatically establish a manifest excess. Instead, the court considered the principles of parity and whether the appellant's sentence was significantly disproportionate to that of his co-accused. The High Court found that the appellant's application for an extension of time and leave to appeal was justified, as the manifest excess and the principles of parity warranted a review of the sentence. Consequently, the appellant's application for an extension of time and leave to appeal was granted.

As a result of the court's decision, the appellant's application for an extension of time to appeal was granted, and the application for leave to appeal was also approved. The court's decision provided the appellant with the opportunity to challenge the excessiveness of his sentence, considering the significant reduction in the sentence of his co-accused.

Orders