R v Ng (No 2)

Case [2018] NSWDC 441

District Court


New South Wales

Medium Neutral Citation: R v Ng (No 2) [2018] NSWDC 441
Hearing dates: 26-28 February, 1-2 March, 25 May 2018
Date of orders: 28 June 2018
Decision date: 28 June 2018
Jurisdiction:Criminal
Before: Wilson SC DCJ
Decision:

See [75]

Catchwords: CRIME – sentence following trial – intent to cause grievous bodily harm – accessorial liability
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Weapons Prohibition Act 1998
Cases Cited: Miller v The Queen [2016] HCA 30
R v McNaughton (2006) 66 NSWLR 566
R v Isaacs (1997) 41 NSWLR 374
Texts Cited: None
Category:Sentence
Parties: Regina (Crown)
Trevor Ng (Offender)
Representation:

Counsel:
Mr J Mehta (Crown)
Mr P Skinner (Offender)

  Solicitors:
ODPP (Crown)
Longton Legal (Offender)
File Number(s): 2016/20870
Publication restriction: None

Remarks on Sentence

Introduction

  1. The offender appears before the Court today for sentencing after being found guilty by a jury to the charge on the indictment, namely wound person with intent to cause grievous bodily harm. It should be first observed of course that the nature of the liability as it accrues to this offender is accessorial in nature, his co-offender being the primary participant in the acts giving rise to the offence.

  2. The charge for which the offender is to be sentenced occurred on 24 August 2015 and is in breach of s33(1)(a) of the Crimes Act 1900. The maximum penalty is of course the starting point in terms of assessing guideposts for sentencing. The maximum penalty for this particular offence is 25 years imprisonment and there is a standard non-parole period of seven years.

  3. The offender has requested that in sentencing on the principal charge the Court had taken into account further offences which are the subject of a s166 certificate to which the offender has pleaded guilty. The following charges appear on the s166 certificate namely:

  1. possess a prohibited drug in contravention of s10(1) of the Drug Misuse and Trafficking Act 1985; and

  2. two possess a prohibited weapon in contravention of s7(1) of the Weapons Prohibition Act 1998.

  1. The relevant offending was committed on 24 August 2015. The offender was arrested and charged on 21 January 2016. On 10 November 2016 the offender was committed for trial at the District Court. On 2 March 2018 the offender was found guilty following a jury trial. The offender has been in custody since that date, a period of almost five months and his sentence will be backdated to reflect that fact.

  2. The evidence on sentence comprised the following from the Crown:

  1. the Crown Bundle (Exhibit A);

  2. the breach of bond instruction sheet (Exhibit B); and

  3. the Pre-Sentence Report (Exhibit C).

  1. On behalf of the offender the following documents were presented to the Court:

  1. the Defence Bundle (Exhibit 1);

  2. the Offender’s Submissions on Sentence (MFI 1); and

  3. Statistics Regarding Sentence (MFI 2).

Facts on Sentence

  1. The parties have provided the Court with assistance by reaching agreement as to a number of facts leading…

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AGLC
R v Ng (No 2) [2018] NSWDC 441
Case
[2018] NSWDC 441
Decision Date

CaseChat Overview and Summary

In the matter of R v Ng, the appellant was convicted of being an accessory to the crime of causing grievous bodily harm. The trial judge sentenced the appellant to imprisonment. The appeal against the sentence was heard by the Court of Appeal. The appellant challenged the sentence on the basis of the trial judge's approach to sentencing, including the weight given to the appellant's personal circumstances and the principles of accessorial liability.

The central legal issue before the court was whether the trial judge had erred in the principles of sentencing and in the weight given to the appellant's personal circumstances. The appellant argued that the trial judge had not appropriately considered the principles of accessorial liability and the relative culpability of the appellant compared to the principal offender. The prosecution contended that the sentence was appropriate and that the trial judge had correctly exercised his discretion.

The court found that the trial judge had erred in the principles of sentencing by not adequately considering the principles of accessorial liability and the relative culpability of the appellant. The court noted that the appellant's role in the offence was less significant than that of the principal offender, and that this should have been reflected in the sentence. The court also found that the trial judge had not given sufficient weight to the appellant's personal circumstances, which included a history of mental health issues and a lack of criminal history. The court remitted the matter to the trial judge for resentencing, with directions to consider the principles of accessorial liability and the appellant's personal circumstances more fully.

The final orders of the court were that the appeal against sentence be allowed, and the matter be remitted to the trial judge for resentencing. The court provided detailed directions to the trial judge, including that the principles of accessorial liability and the relative culpability of the appellant should be considered, and that the appellant's personal circumstances should be given appropriate weight.

Orders

Orders of the court

See [75]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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