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:

1. 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

1. 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.

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.

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 are at least reasonably arguable.  Accordingly, we decided that, if we were minded to grant the application for an extension of time, we should hear and determine the application for leave to appeal at the same time.

1. The background facts to the case may be summarised briefly as follows.  Charges 1, 11 and 13 arose from a plan, hatched by Murrell, Saner, Kamal and the applicant, between 14 October and 2 November 2011, to commit an armed robbery at a gaming venue known as JD’s Sports Bar in Lydiard Street, Ballarat.  Murrell was the principal planner and organiser of the conspiracy. 

1. The conspiracy was discovered when New South Wales police intercepted Murrell’s telephone conversations, which revealed a plan to commit an armed robbery in the Ballarat area.  Victoria Police subsequently intercepted mobile telephone communications between the applicant, Murrell, Kamal and Saner between 27 October and 2 November 2011, and conducted surveillance of their activities. 

1. It was planned that the robbery was to take place on 2 November 2011, which was the day after Melbourne Cup Day.  The applicant, and his co-offenders, were arrested at gunpoint by SOG officers as they were travelling to the targeted premises on that morning.  The applicant was wearing rubber gloves and in possession of cable ties.  In addition, there was a fully loaded unregistered 0.38 calibre Smith & Wesson 6 shot revolver in the vehicle.  Baseball caps, other gloves and sunglasses and further cable ties were also found in the vehicle.  The agreement to commit the armed robbery, that was intercepted by the police, constituted charge 1 on the indictment. 

1. It was common ground, and accepted by the sentencing judge, that Murrell played a significant role in the offending, and was the ringleader of it.  In particular, Murrell recruited the applicant.  It would appear that the applicant’s role was to protect the co-offenders. 

1. Earlier in the day, Murrell, Kamal and the applicant broke into a Holden Statesman sedan that was parked near Ballarat Railway Station, and drove it to Lydiard Street, Ballarat.  They parked the vehicle close to the sports bar for use as a getaway car.  The theft of that car constituted charge 11 on the indictment. 

1. Charges 3 and 4 on the indictment concerned an aggravated burglary and theft committed by the applicant and Murrell in a house in Sunshine in the evening of 26 October 2011.  Although the sentences, imposed on those charges, are not now the subject of this application, we observe that the circumstances of the aggravated burglary were very serious and we regard the sentences imposed on the applicant, and Murrell, on those charges, as particularly moderate, to say the least. 

1. Saner and Kamal were each sentenced by Judge Pilgrim on 31 May 2013, in respect of charges 1 and 2, and also in respect of other charges that were not applicable to Murrell or the applicant.  We shall refer to their sentences a little later.  The pleas, in respect of the applicant and Murrell, were made before Judge Howard on 27 September and 1 October 2013.  As we stated, they were both sentenced on 18 December 2013. 

1. In sentencing the applicant and Murrell, the judge described the conspiracy charge (charge 1) as a very serious offence.  The judge noted that significant planning and preparation had been undertaken for the commission of the planned armed robbery, and everything had been done to effect it, other than commission of the offence of itself.  The applicant and Murrell both expected a substantial reward, and had selected a time, to rob the premises in Ballarat, when it was expected that a large amount of money would be present.  The robbery was to be committed in a brazen manner, in a main street in a major regional city in Victoria during the day time. 

1. Although the judge found that Murrell was the principal organiser and leader of the proposed armed robbery, the applicant was a willing and active participant in it.  His role in the proposed armed robbery included carrying the loaded firearm for use. 

1. The judge took into account a number of matters relied on by the applicant in mitigation, including:  the applicant’s plea of guilty which, in relation to the conspiracy charge, was found to demonstrate genuine remorse; his lack of previous convictions; his dislocated and dysfunctional childhood and adolescence; his good work history and his volunteer role as a sports coach; his low intellectual functioning and other diagnosed mental health and personality problems; and his good prospects of rehabilitation.  In addition, the judge took into account the delay between the applicant’s arrest and the time of sentence.

1. The principles, governing an application for extension of time, are well established.  A decision to extend time is a matter for the discretion of the court.  The applicant must put before the court sufficient material upon which to persuade the court to exercise the discretion in his favour.  The principal test is whether it is just in the circumstances that an order extending time should be made.[1]

   [1]Kentwell v The Queen (2014) 252 CLR 601, 613-4 [30].

1. In exercising the discretion, the court takes into account that the prescribed time limit is intended to secure finality, and it is expected that, ordinarily, the time limit, for applying for leave to appeal in a criminal case, will be complied with.  Where, as in a case such as this, the delay between the expiration of the statutory period and the application is long, the court requires strong or exceptional reasons to exercise the discretion in favour of the applicant.  In particular, in such a case the court will not ordinarily grant any considerable extension of time, unless satisfied that there are ‘… such merits in the proposed appeal that it would probably succeed’.[2] 

   [2]See R v Darby (Unreported, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975); Roth (a Pseudonym) v The Queen [2014] VSCA 242, [3] (Neave and Priest JJA); Jopar v The Queen (2013) 275 FLR 454, 465 [60] (Priest JA).

1. It would appear that the applicant in this case was moved to apply for leave to appeal against his sentence after the Court of Appeal had delivered judgment, on 26 June 2014, in respect of appeals by Kamal and Saner, reducing the sentences imposed on them, inter alia, in respect of charge 1.[3]  The applicant’s solicitor, Adrian Lewin of Turnbull Lawyers, has sworn an affidavit stating that he first became involved on 9 October 2014, when he received a memorandum from counsel of the same date, advising that, in light of the decision of the Court of Appeal, an application for an extension of time should be made on behalf of the applicant.  In his affidavit, Mr Lewin stated that counsel had expressed the view that nothing further should be done until an appeal, lodged by Murrell, was also dealt with.  In the memorandum, counsel drafted the two grounds of appeal, which are now relied on. 

   [3]Saner v The Queen; Kamal v The Queen [2014] VSCA 134.

1. Mr Lewin further stated that, after the delivery by the court of its judgment in the appeal of Murrell[4] on 18 December 2014, he was unable to contact counsel as he was away on holidays, and later involved in a lengthy criminal trial.  Ultimately, having made contact with counsel, an application for funding was submitted to Victoria Legal Aid on 15 April 2015.  That application was approved one month later.  As a result, the documentation, necessary for this application, was prepared and filed. 

   [4]Murrell v The Queen; DPP v Murrell [2014] VSCA 337.

1. It is evident from the foregoing that there has been a lengthy delay, by the applicant, and his legal representatives, in instituting the present application.  No material has been put before us to explain why the applicant did not seek legal advice until October 2014.  We would infer that he was only moved to bring the present application, after delivery of judgment by this Court in the appeals of Saner and Kamal.  Further, as we have observed, Mr Lewin’s affidavit does not adequately explain why there was a delay in taking any steps after counsel first advised, in October 2014, that the application should be made. 

1. In those circumstances, we would be only minded to accede to the application for an extension of time, if it could be demonstrated that there was a reasonable basis upon which the applicant might succeed in an ultimate appeal by him in respect of his sentence.  It seems abundantly clear that the real gravamen, of both ground 1 and ground 2, of the proposed application for leave to appeal, concerns the reduced sentences of the co-accuseds Saner and Kamal, in respect of charge 1.  For the purpose of considering that ground, it is necessary to rehearse the chronology of the various sentences and appeals in the cases of the co-accused. 

1. As we stated, Judge Pilgrim sentenced Saner and Kamal on 31 May 2013.  Saner was sentenced on seven indictable charges, and one summary offence.  On charge 1 (the conspiracy to commit armed robbery) he was sentenced to 6 years’ imprisonment, which was his base sentence.  He was sentenced to 18 months’ imprisonment on charge 2 (the theft of the motor vehicle), with no cumulation on the base sentence.  He received sentences of imprisonment in respect of the other charges that we have mentioned, but which are not common to the applicant.  In the upshot, Saner’s total effective sentence was 6 years and 6 months’ imprisonment with a non-parole period of 4 years.

1. Kamal was sentenced in respect of seven indictable offences, and two summary offences.  He was sentenced to 6 years’ imprisonment in respect of charge 1, which was the base sentence.  The other offences, charged against him, were not committed with the applicant.  The judge imposed a total effective sentence on Kamal of 7 years and 3 months’ imprisonment with a non-parole period of 5 years.

1. Seven months later, Judge Howard sentenced the applicant and Murrell.  Murrell was sentenced to 6 years’ imprisonment in respect of charge 3, which was the base sentence.  On charge 1, he was sentenced to 6 years’ imprisonment, with 4 years cumulation on the base sentence.  On charge 2, he was sentenced to 2 years’ imprisonment, with 9 months cumulation on the base sentence.  He was also sentenced in respect of a number of other charges that were not committed with the applicant.  The judge imposed a total effective sentence on Murrell of 14 years, with a non-parole period of 10 years and 6 months. 

1. As stated, on 27 June 2014 this Court[5] upheld the appeal by Saner and Kamal against their sentences on charge 1.  The court reduced the sentence of Saner, on that count, to 3 years and 9 months’ imprisonment, and of Kamal, on that count, to 4 years’ imprisonment. 

   [5]Saner v The Queen; Kamal v The Queen [2014] VSCA 134.

1. Tate JA (with whom Redlich JA agreed) upheld the appeals on the basis that the sentences imposed on ground 1 were so disproportionate to the sentence imposed by Judge Howard on Murrell on that charge, as to infringe the principle of parity.  The culpability of both Saner and Kamal, and their previous convictions, were substantially less than in the case of Murrell.[6]  In addition, Saner had cooperated with the prosecution, and had given an undertaking, at an early stage, to assist the prosecution against the co-offenders.[7]

   [6]Ibid, [59]–[63], [146].

   [7]Ibid [63]–[65].

1. Tate JA also held that the sentence imposed on Saner was manifestly excessive, particularly taking into account his cooperation with the authorities.[8]  Her Honour also held that, although Kamal did not provide a statement to an undertaking to cooperate, nevertheless the sentence imposed on him on charge 1 was manifestly excessive, because he was not the principal organiser of the conspiracy and his role was performed very much at the direction of Murrell.[9] 

   [8]Ibid [94].

   [9]Ibid [110].

1. In considering the strength of grounds 1 and 2 of the proposed application to be brought on behalf of the applicant, it is not necessary to analyse the similarities or differences between his case, and the cases of Saner and Kamal, in respect of charge 1.  It is sufficient to observe that, like Saner and Kamal, he was not the principal organiser of the conspiracy.  Further, the applicant did not have any previous convictions, unlike any of his co-offenders.  He had been assessed as having an extremely low intellectual functioning, and it was considered that he had post-traumatic stress disorder resulting from his dysfunctional and abusive childhood.  Notwithstanding that disorder, and his entrenched alcohol and drug addictions, he had maintained employment in the community, and glowing character references were tendered on his behalf. 

1. Taking those matters into account, it is sufficient to conclude, at this stage, that, based on those matters, the applicant would, in our view, have, at the least, a reasonable basis upon which to contend that, given the reduced sentences of Saner and Kamal, the sentence imposed on him on charge 1 is now so disproportionate as to infringe the principles of parity.  While we are less sanguine about the proposed ground of manifest excess in relation to the first charge, the basis upon which it is sought to be argued derives from the reasons of this Court in the decision in Saner and Kamal.  In that light, it would be appropriate to consider that the applicant has a reasonably arguable case in respect of ground 1.  

1. As we have noted, in the course of submissions, counsel for the applicant properly conceded that ground 2 should be confined to the sentence imposed on the applicant on charge 1.  He was correct to make that concession.  The offending, in respect of charge 3, was very serious.  It might fairly be observed that, notwithstanding the applicant’s lack of previous convictions, and the other mitigating circumstances to which we have referred, the sentences imposed on him, and on Murrell, in respect of that charge, were particularly moderate. The applicant played an equal role in the offence. It is unlikely that the fact that Murrell had a substantial criminal history, while the applicant had no prior convictions,  provides an adequate basis for an argument that the sentence imposed on the applicant in respect of charge 3, offended the principle of parity of sentencing.

1. For those reasons, we would grant the application to extend time for leave to appeal in respect of proposed ground 1, and proposed ground 2, insofar as it relates to the sentence imposed in respect of charge 1 on that indictment.  Having reached that conclusion, we would also grant the application for leave to appeal the sentence imposed on charge 1 .