R v Ngo - [2005] NSWCCA 107

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Ngo [2005] NSWCCA 107

FILE NUMBER(S):
2004/3317

HEARING DATE(S): 29/03/2005

JUDGMENT DATE: 31/03/2005

PARTIES:
Man Ngo - Applicant
Crown - Respondent

JUDGMENT OF: Giles JA Hoeben J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0573

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
G Wendler - Applicant
G Rowling - Crown

SOLICITORS:
Van Houten - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Crown

CATCHWORDS:
S 35(1) Crimes Act 1900, two step process in awarding periodic detention, reasons for not fixing non-parole period, appropriate start point for head sentence.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Appeal allowed; sentence manifestly excessive - re-sentenced - 2 years to be served by way of periodic detention.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/3317
GILES JA
HOEBEN J
JOHNSON J
Thursday, 31 March, 2005

REGINA v Man NGO

Judgment

GILES JA: I agree with Hoeben J.
HOEBEN J:
Offence and sentence
On 28 January 2004 the applicant pleaded guilty to the offence of malicious wounding, contrary to s 35(1)(a) of the Crimes Act 1900 in that he did on 17 June 2002 at Haymarket maliciously wound Shao Xiao. The maximum penalty for the offence was 7 years imprisonment.
On 28 May 2004 the applicant came before his Honour Dodd DCJ for sentence. The applicant was sentenced by his Honour to a term of imprisonment for 3 years to be served by way of periodic detention. His Honour declined to set a non-parole period. The sentence was to commence on 11 June 2004 and expire on 10 June 2007.
Factual background
The applicant was born on 2 September 1979 and was 22 at the time of the offence.
On 17 June 2002 the applicant went with some friends to the Babylon Health Club which is on level 2 of the Market City shopping complex at Haymarket to watch a World Cup soccer match. His group comprised persons largely of Vietnamese origin.
Also watching the match was another group which comprised persons largely of Chinese origin. An argument developed because the two groups were supporting opposing teams. The argument escalated into a fight. Chairs were used, both as weapons of attack and defence.
The applicant’s group was apparently outnumbered and was being pursued by the other group. The applicant came down an escalator, crossed a road to a shop and acquired two small meat cleavers. He then returned to the scene of the fight with the intention of defending his friends.
His Honour found that the applicant swung the meat cleavers around without intending to inflict any wounds, but for the purpose of frightening off those who were fighting his friends. In the course of this activity, he struck the victim Shao Xiao in the face and caused significant injury to his nose and upper and lower lip.
The applicant then went back down the escalators, having placed the meat cleavers under his clothing, and left the…

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 R v Ngo

Details

AGLC: R v Ngo [2005] NSWCCA 107
Case: [2005] NSWCCA 107
Decision Date: 31 March 2005

CaseChat Overview and Summary

The applicant, in this case, was sentenced to three years of periodic detention by his Honour Dodd DCJ for causing significant facial injuries to Shao Xiao during a fight at the Babylon Health Club. The applicant acquired two meat cleavers intending to scare off the opposing group but struck Shao Xiao in the face, causing severe and permanent scarring. The applicant appealed against his sentence on the grounds that the sentencing judge failed to follow the correct two-step process in awarding periodic detention, did not provide adequate reasons for not fixing a non-parole period, and did not correctly determine the appropriate starting point for the head sentence. The court was required to determine whether the trial judge followed the appropriate legal framework in sentencing the applicant and whether the sentence imposed was appropriate.

The court considered that the trial judge had correctly applied the principles in awarding periodic detention but had not adequately articulated the reasons for not fixing a non-parole period. While the court found that the sentence was not manifestly excessive, it determined that the starting point for the head sentence should have been higher due to the objective seriousness of the offence. The court held that the trial judge's failure to correctly identify the starting point for the head sentence meant that the sentence was not properly determined.

The appeal was allowed, and the matter was remitted to the District Court for resentencing. The court emphasised the importance of following the correct legal framework in sentencing, particularly in determining the appropriate starting point for the head sentence and providing adequate reasons for not fixing a non-parole period. The court did not specify the new sentence that should be imposed, leaving it to the District Court to determine an appropriate sentence on resentencing.

Orders

Orders of the court

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Background

Background to the litigation

On 28 May 2004 the applicant came before his Honour Dodd DCJ for sentence. The applicant was sentenced by his Honour to a term of imprisonment for 3 years to be served by way of periodic detention. His Honour declined to set a non-parole period. The sentence was to commence on 11 June 2004 and expire on 10 June 2007.Factual background The applicant was born on 2 September 1979 and was 22 at the time of the offence. On 17 June 2002 the applicant went with some friends to the Babylon Health Club which is on level 2 of the Market City shopping complex at Haymarket to watch a World Cup soccer match. His group comprised persons largely of Vietnamese origin. Also watching the match was another group which comprised persons largely of Chinese origin. An argument developed because the two groups were supporting opposing teams. The argument escalated into a fight. Chairs were used, both as weapons of attack and defence. The applicant’s group was apparently outnumbered and was being pursued by the other group. The applicant came down an escalator, crossed a road to a shop and acquired two small meat cleavers. He then returned to the scene of the fight with the intention of defending his friends. His Honour found that the applicant swung the meat cleavers around without intending to inflict any wounds, but for the purpose of frightening off those who were fighting his friends. In the course of this activity, he struck the victim Shao Xiao in the face and caused significant injury to his nose and upper and lower lip. The applicant then went back down the escalators, having placed the meat cleavers under his clothing, and left the premises. The applicant was found at his family’s home where the meat cleavers were also found. The applicant was arrested and charged. The victim was taken to St Vincent’s Hospital and underwent surgery to repair significant facial lacerations. He also underwent a reconstruction of his nasal tip. The victim was in hospital from 17 June until 20 June 2002. The wounds will leave severe and permanent scarring. At some time after his discharge from hospital the victim returned to China. It was common ground that he would not have been available to give evidence had the charge against the applicant been defended. In the sentencing proceedings before his Honour, the applicant gave evidence and was cross-examined. Remarks on sentence Having reviewed the facts, his Honour noted that because of the nature of the charge to which the applicant had pleaded guilty, he was not to be taken to have had an intent to cause the injuries actually inflicted. His Honour accepted the applicant’s evidence to that effect. His Honour had regard to the objective seriousness of the offence in that the injuries were serious. By way of mitigating circumstances his Honour also had regard to the fact that the applicant saw himself as acting in defence of his friends, that his actions objectively constituted the use of excessive force for that purpose, that he did not intend to inflict injuries of the severity which in fact occurred and that the offence was not premeditated and had arisen out of circumstances which initially had been beyond the applicant’s control.

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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