Nono Ngaa v The Queen (No 2)

[2015] VSCA 336

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0115

NONO NGAA	Appellant
V
THE QUEEN (NO 2)	Respondent

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JUDGES:	WHELAN, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2015
DATE OF JUDGMENT:	11 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 336
JUDGMENT APPEALED FROM:	DPP v Ngaa (County Court of Victoria, Judge Howard, 18 December 2013)

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CRIMINAL LAW – Appeal – Conspiracy to commit armed robbery – Parity – Sentence of co-accused reduced by separate court – Appeal allowed.

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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 4 December 2015, we heard and determined an application by the appellant for an extension of time within which to apply for leave to appeal against sentence.[1]  In the course of submissions, the parties agreed that, if we were minded to grant the appellant an extension of time, we should also, at the same time, determine his application for leave to appeal.  Having heard submissions relating to those matters, we granted both applications, and made the following orders:

(1)The time within which the applicant may apply for leave to appeal against sentence be extended so as to enable the application to be dealt with instanter on 4 December on the basis of the draft application dated 15 June 2015.

(2)The applicant be granted leave to appeal on proposed ground 1 of the draft application, and on proposed ground 2 amended to read:  ‘The sentence imposed on charge 1 does not adequately reflect the principles of parity when compared to the sentences imposed on Murrell, Saner and Kamal’.

[1]Ngaa v The Queen (No. 1) [2014] VSCA 335.

1. After we had pronounced those orders, counsel sensibly agreed that we should proceed to hear and determine the substantive appeal by the appellant in respect of the sentence imposed on charge 1.  Counsel adopted the submissions contained in their written cases, and did not wish to make any further oral submissions.  Accordingly, we made a further order that the appeal should be treated as having been heard, based on the written cases that had been filed, and we reserved our decision on the appeal. 

1. Having considered the written cases filed by each party, we have determined that amended ground 2 of the appeal, against the sentence imposed on the applicant on charge 1, should be upheld. 

1. We have set out, in some detail, the background facts and circumstances relevant to this appeal in our earlier judgment relating to the application for an extension of time and for leave to appeal.  It is not necessary for us to repeat them.  It is convenient to deal first with amended ground 2. 

Amended ground 2:  the sentence on charge 1 does not adequately reflect the principles of parity when compared with the sentences imposed on the co-offenders Murrell, Saner and Kamal

1. In support of the amended ground 2, counsel principally relied on the circumstance that, after sentence was passed on the appellant, this Court reduced the sentences imposed on Saner and Kamal in respect of charge 1.[2]  As a result, while the appellant is subject to a sentence of 5 years’ imprisonment in respect of charge 1, sentences of 4 years’ imprisonment and 3 years and 9 months’ imprisonment have been imposed, respectively, on Kamal and Saner, in respect of the same charge.  It is submitted that Kamal, Saner and the applicant each played similar roles in the offending.   Accordingly, the difference between the sentence imposed on the appellant on charge 1, and the sentences imposed on Saner and Kamal on the same charge (as reduced by this Court), is so substantial as to offend the principle of parity of sentencing. 

   [2]Sander v The Queen; Kamal v The Queen [2014] VSCA 134.

1. In response, the respondent has contended that there were relevant differences in the circumstances relating to both Saner and Kamal on the one hand, and the appellant on the other, to justify the difference in the sentences.  In the case of Saner, he had cooperated with the authorities, made a statement, and gave an undertaking to give evidence against his co-offenders.  While Kamal was also charged with possession of the firearm that was found in the vehicle, it was the role of the applicant, and not Kamal, to use it during the proposed armed robbery. 

1. The principles relating to parity of sentencing are well established and do not need detailed examination for the purposes of determining the appeal.  An appellate court may interfere with a sentence, on the basis of disparity, where there is such a ‘manifest’ disparity between the sentences imposed on the appellant and on a co-offender, taking into account any differences between the involvement of the offenders in the particular offence, and their personal circumstances, as to give rise to a justifiable sense of grievance on the part of the appellant and of an objective bystander.[3]  In the present case, the principal complaint, now made by the appellant, arises from the disparity in the sentences imposed on co-offenders, arising out of a subsequent decision by this Court in relation to those co-offenders.  Clearly, the same principles of parity of sentencing apply in such a case. 

   [3]R v Lowe (1984) 154 CLR 606, 610 (Gibbs CJ), 613-14 (Mason J), 623-4 (Dawson J); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, 474 [31] (French CJ, Crennan and Kiefel JJ).

1. In order to determine the amended ground 2, it is not necessary to rehearse, in detail, the circumstances of the offending.  Those circumstances, as summarised in our previous decision, reveal that, relevantly, the roles of the appellant, Kamal and Saner were similar, save that Saner was not charged with any offence relating to the possession of the weapon located in the vehicle.  On the other hand, it would appear that both Kamal and Saner became involved in the conspiracy at an earlier date than the appellant.  Kamal (and Murrell) had been involved in stealing a motor vehicle on 1 November 2011 for use in the robbery.  That vehicle was in fact retrieved by its owner on the night before the robbery was to be carried out.

1. In those circumstances, we do not discern any relevant difference in the culpability between the appellant and Kamal in respect of charge 1.  As we have noted, Saner was not charged with any offence relating to the firearm.  In addition, after his arrest, he cooperated with the authorities, and gave an undertaking to give evidence against his co-offenders. 

1. On the other hand, unlike Kamal and Saner, the appellant did not have any previous convictions.  As we noted in our earlier decision, the appellant had been assessed as having an extremely low level of intellectual functioning.  He was diagnosed as having suffered post-traumatic stress disorder as a result of his dysfunctional and abusive childhood and upbringing.  Despite that disorder, and his alcohol and drug addiction, he had been able to secure and maintain employment in the community.  In addition, strong character references were tendered on his behalf.

1. Taking those matters into account, and also taking into account the personal circumstances of both Kamal and Saner as set out in the sentencing remarks of Judge Pilgrim, we are persuaded that the difference in the sentence imposed on the appellant on charge 1, and the sentence imposed on Kamal on the same charge, is so disproportionate as to engender a justifiable sense of grievance on the part of the appellant and an objective bystander.  For those reasons, the appellant has made out the amended ground 2 of the appeal. 

1. Accordingly it is not necessary for us to consider ground 1 of the appeal. 

Conclusion

1. For those reasons, the appeal by the appellant in respect of the sentence imposed on charge 1 should be allowed.  The sentence on that charge should be set aside.  In lieu, the appellant should be sentenced to a term of imprisonment of 4 years on charge 1.  We order that two years of the sentence on charge 1 be served cumulatively upon the sentence on charge 3.  Otherwise, the sentences imposed by Judge Howard on 18 December 2013 are confirmed. 

1. Accordingly, the appellant’s total effective sentence is 7 years and 6 months’ imprisonment.  We direct that he serve 5 years’ imprisonment before he shall be eligible for parole.