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:

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.

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.

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.

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

In support…

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.

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Details

Case: [2015] VSCA 336
Decision Date: 11 December 2015

CaseChat Overview and Summary

In the case of Nono Ngaa v The Queen (No 2), the appellant, Nono Ngaa, appealed against his conviction and sentence for conspiracy to commit armed robbery. The matter was heard in the High Court of Australia. Ngaa was found guilty of conspiring with others to commit armed robbery, a serious criminal offence under Australian law. The appellant's challenge to his conviction and sentence centred on the principle of parity, which asserts that co-conspirators should receive comparable sentences.

The central legal issue before the court was whether the appellant's sentence was unjustifiably disparate to that of his co-conspirators, particularly when one of them had his sentence reduced by another court. The appellant argued that the principle of parity required his sentence to be reviewed in light of the reduced sentence of his co-conspirator, as it created an unjustifiable disparity. The Crown, on the other hand, contended that the original sentence was appropriate and that the principle of parity did not mandate a reduction in the appellant's sentence.

The High Court held that the appellant's sentence was indeed unjustifiably disparate given the reduction in his co-conspirator's sentence. The court found that the principle of parity, while not absolute, does require that sentences of co-conspirators be considered in relation to each other to ensure fairness. The court found that the disparity in sentences created an unacceptable injustice, warranting a reduction in the appellant's sentence. Consequently, the appeal was allowed, and the case was remitted to the lower court for resentencing.

The final orders of the court were that the appellant's conviction for conspiracy to commit armed robbery was upheld, but his sentence was quashed and the matter was remitted to the lower court for resentencing in light of the principle of parity. The court did not alter the conviction but addressed the disparity in sentencing among the co-conspirators.

Orders