R v Ngo

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 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.
Having regard to those matters, his Honour concluded that the offence fell within the middle of the range for such offences and that a term of imprisonment should be imposed.
In relation to subjective matters, his Honour had regard to the applicant’s criminal record which involved two matters of possess prohibited drugs and two PCA matters. His Honour noted that there was no record of violence and to that extent the applicant was entitled to some degree of leniency.
The applicant came to Australia from Vietnam at the age of 6 or 7. He had two older brothers, an older sister and a younger brother. He lived with his parents and brothers in the family home at Cabramatta. He had a close relationship with his family and his Honour noted that the family was present in court. The applicant’s father was a retired butcher and had been receiving a pension for two years.
The applicant had attended high school at Cabramatta where he completed the school certificate. He was an average student and his behaviour was good. After leaving school he had worked as a machine operator in a factory for two years before being made redundant. He then commenced a certificate in panel beating at TAFE. Shortly before completing that certificate, he was offered a job and so withdrew from the course. Thereafter he had worked in various short term positions as a process worker and forklift driver. At the time of the offence, the applicant was working as a gyprocker at Liverpool.
The applicant was in good health and had been in a relationship with a girlfriend for the last twelve months. The psychologist’s report indicated that he was not suffering from any psychological or psychiatric problem. Although he had experimented with drugs in the past, he had ceased using them two years ago and did not have any current drug problem.
The psychological report indicated that the applicant was of above average intelligence and had the intellectual capacity to benefit from further vocational training to enhance his career prospects. The psychologist concluded that he was likely to benefit from psychological counselling to assist him in developing appropriate behaviour and anger management techniques.
His Honour accepted that in addition to its utilitarian value, the applicant’s plea of guilty indicated contrition. His Honour noted that without such a plea of guilty, the Crown case may have had difficulties because of the victim’s permanent departure to China. His Honour concluded that the applicant was entitled to the maximum discount of twenty five percent for his early plea of guilty and because of his genuine contrition.
His Honour considered that the applicant had good prospects of rehabilitation because of his prior good character, his contrition, the support of his family, his present permanent relationship with his girlfriend and because of his employment. Had it been necessary, his Honour would have been prepared to find special circumstances.
His Honour concluded his remarks on sentence as follows:
“Taking into account all of those matters, both the objective circumstances of the offence and the seriousness of it, and your subjective circumstances to which I have referred, and having taken account of all the matters required to be taken into account pursuant to s21A of the Crimes (Sentencing Procedure) Act, whether or not I have specifically referred to them, I am of the view that it is appropriate to order that the term of imprisonment to be imposed be served by way of periodic detention. The appropriate minimum term of imprisonment, in my view, is three years and therefore I intend to fix that term and I order that it be served by way of periodic detention. I see no need in your case for continuing supervision after serving that term.”
On being asked for reasons for not imposing a non-parole period his Honour responded:
“Because I don’t think he needs supervision. I thought the minimum term he should serve is three years, which is what I said and I don’t think he needs supervision after that.”
Appeal
Ground 1 – His Honour erred in first determining the sentence imposed should be served by way of periodic detention as opposed to initially determining an appropriate period of imprisonment
Ground 2 – His Honour erred in failing to adequately explain his reasons for declining to set a non-parole period and not in fact imposing a non-parole period
Ground 3 – The sentence imposed was in all the circumstances excessive and a lesser sentence was warranted in law and should have been imposed
I have set out the three grounds of appeal since the submissions on behalf of the applicant overlapped and involved a consideration of each ground of appeal.
In support of Ground 1, the applicant submitted that his Honour failed to follow the two step process which was required when awarding a non fulltime custodial sentence. Reliance was placed on R v Stephen [2003] NSWCCA 371 per Wood CJ at CL:
“22.        The sentencing judge in this case, it seems to me, did not follow the procedure, which it has been accepted as appropriate, in cases where an order is ultimately made that involves an alternative to fulltime custody. Clear guidance is provided in this respect by the decisions in R v Wegener [1999] NSWCCA 405, R v Hanslow [2002] NSWCCA 161, R v Eagleton [2003] NSWCCA 40 and R v Schodle [2003] NSWCCA 164 which emphasise the need for a two step approach.
23.          The sentencing judge is expected first to fix an appropriate period of imprisonment, and is then required to consider whether it should be served in circumstances other than fulltime custody. Those considerations or issues are not to be telescoped, and in particular it is inappropriate to compensate for the leniency, which is involved in periodic detention, by extending the term of imprisonment which is to be served in this way.
24.          In the present case his Honour seems not to have approached the case in that way. Having noted the sentences imposed upon the co-offenders he then determined the sentence which he should pass by reference, it would seem, solely to the question of parity.
25.          Properly approached, his Honour should have determined what was an appropriate period of imprisonment, to reflect the applicant’s objective criminality and his subjective circumstances, and then to have paid regard to the question of whether the case was suitable for periodic detention…”
Quite clearly his Honour did not follow that two step process. Having considered the objective seriousness of the offence, his Honour determined that a sentence of imprisonment was appropriate. After assessing subjective matters, his Honour determined that the sentence should be served by way of periodic detention. It was then that his Honour fixed the sentence at 3 years.
In fixing a sentence of 3 years it is not clear how, and if so to what extent, his Honour had regard to the discount of twenty five percent for the utilitarian value of the applicant’s early plea and to the very positive findings which he made as to the applicant’s contrition and remorse, his relatively minor criminal record and positive prospects of rehabilitation. If those matters were taken into account in fixing a sentence of 3 years, then a reasonable inference is that his Honour’s start point must have been a substantially longer sentence.
The exchange which took place between his Honour and the Crown (ROS 7) following the awarding of the sentence supports the proposition that the determining factor in the sentence of 3 years was that it was the maximum sentence permitted by law to be served by way of periodic detention.
“CROWN: Your Honour, if I might just interject, my understanding was that two years was the maximum for periodic detention, but I can stand corrected. Did they alter it to three years?
HIS HONOUR: I thought it was three years. Am I wrong Mr Givorshner?
CROWN: I might be wrong your Honour.
HIS HONOUR: Two years for a suspended sentence.
CROWN: That’s right.
HIS HONOUR: But I think it’s three years for periodic detention. But you never know what they’ve done to me. They might have changed it.”
If that be a correct interpretation of that exchange then his Honour fell into the error referred to by Wood CJ at CL in that he appears to have telescoped the concept of an appropriate period of imprisonment and whether or not it should be served in circumstances other than fulltime custody.
Because of the date of the offences ss 44 and 45 of the Crimes (Sentencing Procedure) Act 1999, as those provisions existed before their repeal and replacement, applied. These legislative requirements are important (see R v Parsons and Poore [2002] NSWCCA 296 per Smart AJ at [100]) although, as the two sections expressly provide, non-compliance does not invalidate the sentence.
As then in force, s 44 required his Honour to firstly set the term of the sentence and secondly to set a non-parole period for the sentence. The statements at [22 ] and [23] hereof would suggest that his Honour was not applying the repealed ss 44 and 45 in that his Honour seems to have had in contemplation a parole period beyond the 3 year sentence awarded. If so that would support the applicant’s submission in relation to Ground 1 that his Honour must have had in mind a head sentence significantly longer than 3 years.
In those circumstances there is force in the applicant’s submission that the process of reasoning and the failure to set a non-parole period disadvantaged the applicant, because it was not apparent whether or how he had received any benefit for his early plea of guilty and for the other positive subjective matters which his Honour had found in his favour, and had not had the benefit of a finding of special circumstances.
Underlying all of these submissions is the fundamental complaint that in all the circumstances the sentence awarded by his Honour was excessive. The force of this submission is that if his Honour had given to the applicant the benefit of his early plea of guilty and the other positive subjective matters, his start point in sentencing must have been significantly greater than 3 years. Such a start point, it is submitted, having regard to all of the circumstances of this case was manifestly excessive.
I am of the opinion that his Honour did fall into error in telescoping the concepts of an appropriate period of imprisonment and whether such imprisonment should be served in circumstances other than fulltime custody. His Honour also did not seem to have had regard to the provisions of the repealed ss 44 and 45 of the Crimes (Sentencing Procedure) Act 1999. For his Honour’s sentence to stand, this Court would have to approve a head sentence significantly greater than 3 years. Given the positive findings which his Honour made in favour of the applicant, such a start point is manifestly excessive and reveals error. In my opinion this Court should intervene and re-sentence the applicant.
In my view a sentence of 3 years was an appropriate start point having regard to the objective seriousness of the offence, given that the applicant had left the fight and returned with weapons, albeit without an intention to inflict the injuries which actually occurred. He was, however, entitled to the benefit of his early plea and to the very positive subjective findings which his Honour made in his favour. He was also entitled it seems to me to the benefit of the finding of special circumstances which his Honour made.
The twenty five percent discount for the applicant’s early plea and the other positive subjective findings made by his Honour require that a significant discount be applied to the notional sentence of 3 years. Thereafter it is necessary to have regard to his Honour’s finding of special circumstances in fixing an appropriate period of parole supervision. This approach produces a head sentence of 2 years with a non-parole period of 1 year and 3 months. I see no reason to interfere with his Honour’s finding that it was appropriate that such sentence be served by way of periodic detention and the contrary was not suggested by the Crown.
I would propose the following orders:
1.            Grant leave to appeal.
2.            Appeal allowed and sentence imposed in the District Court quashed.
3.            In lieu thereof, the applicant is sentenced to imprisonment for 2 years to commence on 11 June 2004 and expire on 10 June 2006 to be served by way of periodic detention.
4.            Specify a non-parole period of 1 year and 3 months to commence on 11 June 2004 and expire on 10 September 2005.
5.            Applicant to continue to report for periodic detention as presently required.
JOHNSON J: I agree with Hoeben J.

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LAST UPDATED: 11/04/2005

[2005] NSWCCA 107

31 March 2005