R v Ngo; R v Truong - [2010] QCA 151

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ngo; R v Truong [2010] QCA 151

PARTIES:

R
v
NGO, Hi
(applicant)

R
v
TRUONG, Thanh Hieu
(applicant)

FILE NO/S:

CA No 226 of 2009
CA No 231 of 2009
SC No 645 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2010

JUDGES:

Holmes and Muir JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In each appeal:

1.   The application for leave to appeal be allowed;

2.   The appeal be allowed;

3.   The sentence imposed by the sentencing judge be set aside, but to the extent only that a non-parole period fixed at 24 months be substituted.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicants convicted after guilty pleas of conspiring with their co-accused with the intention of dishonestly causing a loss to the Commonwealth – applicants sentenced to four years and six months imprisonment with a non-parole period of three years –applicants submitted that the sentencing judge erred in accepting he was bound to order the applicants’ release after serving 60 - 66 per cent of the head sentence and that fixing the non-parole period as he did resulted in the sentence being manifestly excessive – whether sentencing judge failed to have sufficient regard to sentencing principles – whether sentencing judge gave sufficient weight to the circumstances of the case – whether sentence manifestly excessive

Crimes Act 1914 (Cth), s 16A

Caratti v The Queen (2000) 22 WAR 527; [2000] WASCA 279, considered
Director of Public Prosecutions (Commonwealth) v Rowson [2007] VSCA 176, considered
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, disapproved
R v Cappadona (2001) 122 A Crim R 52; [2001] NSWCCA 194, considered
R v Chen (unreported, O’Brien DCJ, District Court, Qld, 30 August 2001), cited
R v Costi [2001] QCA 404, cited
R v Fidler[2010] QCA 25, approved
R v Marshall[2010] QCA 29, approved
R v McQuire (No 2) (2000) 110 A Crim R 348; [2000] QCA 40, cited
R v Ruha, Ruha & Harris; ex parte Cth DPP[2010] QCA 10, approved
R v Tilley (1991) 53 A Crim R 1, cited
R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522, cited
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, cited

COUNSEL:

In CA No 226 of 2009:
P E Smith for the applicant
G Long SC for the respondent

In CA No 231 of 2009:
A Glynn SC for the applicant
G Long SC for the respondent

SOLICITORS:

In CA No 226 of 2009:
Legal Aid…

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: [2010] QCA 151
Decision Date: 18 June 2010

CaseChat Overview and Summary

In the Supreme Court of Victoria, Ngo and Truong appealed against their sentences for conspiring to defraud the Commonwealth. The applicants, who had entered guilty pleas, were convicted and sentenced to imprisonment terms of four years and six months each, with a non-parole period of three years. They contended that the sentencing judge erred by believing he was bound to order their release after serving 60 to 66 per cent of their head sentences and that the non-parole period he set was manifestly excessive. The applicants argued that the sentencing judge failed to properly consider the sentencing principles and the circumstances of their case, and that the sentence was manifestly excessive.

The legal issues before the court were whether the sentencing judge had failed to adequately consider the sentencing principles and the circumstances of the case, and whether the sentence was manifestly excessive. The applicants argued that the sentencing judge's interpretation of the law regarding the non-parole period was incorrect and that the sentence imposed was excessive in light of the nature and circumstances of the offending and the applicants' personal circumstances.

The court found that the sentencing judge had misunderstood the law in relation to the non-parole period and had failed to adequately consider the principles of sentencing and the applicants' personal circumstances. The court held that the sentence imposed was manifestly excessive, and thus the applicants' appeals were allowed. The sentences were set aside, but only to the extent that a non-parole period of 24 months was substituted. The applicants' applications for leave to appeal were granted, and the appeals were allowed.

Orders

Orders of the court

In each appeal:

1. The application for leave to appeal be allowed;

2. The appeal be allowed;

3. The sentence imposed by the sentencing judge be set aside, but to the extent only that a non-parole period fixed at 24 months be substituted.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ngo; R v Truong [2010] QCA 151
PARTIES:	R v NGO, Hi (applicant) R v TRUONG, Thanh Hieu (applicant)
FILE NO/S:	CA No 226 of 2009 CA No 231 of 2009 SC No 645 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2010
JUDGES:	Holmes and Muir JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In each appeal: 1. The application for leave to appeal be allowed; 2. The appeal be allowed; 3. The sentence imposed by the sentencing judge be set aside, but to the extent only that a non-parole period fixed at 24 months be substituted.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – applicants convicted after guilty pleas of conspiring with their co-accused with the intention of dishonestly causing a loss to the Commonwealth – applicants sentenced to four years and six months imprisonment with a non-parole period of three years –applicants submitted that the sentencing judge erred in accepting he was bound to order the applicants’ release after serving 60 - 66 per cent of the head sentence and that fixing the non-parole period as he did resulted in the sentence being manifestly excessive – whether sentencing judge failed to have sufficient regard to sentencing principles – whether sentencing judge gave sufficient weight to the circumstances of the case – whether sentence manifestly excessive Crimes Act 1914 (Cth), s 16A Caratti v The Queen (2000) 22 WAR 527; [2000] WASCA 279, considered Director of Public Prosecutions (Commonwealth) v Rowson [2007] VSCA 176, considered Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, disapproved R v Cappadona (2001) 122 A Crim R 52; [2001] NSWCCA 194, considered R v Chen (unreported, O’Brien DCJ, District Court, Qld, 30 August 2001), cited R v Costi [2001] QCA 404, cited R v Fidler[2010] QCA 25, approved R v Marshall[2010] QCA 29, approved R v McQuire (No 2) (2000) 110 A Crim R 348; [2000] QCA 40, cited R v Ruha, Ruha & Harris; ex parte Cth DPP[2010] QCA 10, approved R v Tilley (1991) 53 A Crim R 1, cited R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522, cited Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, cited
COUNSEL:	In CA No 226 of 2009: P E Smith for the applicant G Long SC for the respondent In CA No 231 of 2009: A Glynn SC for the applicant G Long SC for the respondent
SOLICITORS:	In CA No 226 of 2009: Legal Aid…