R v Phuong Canh Ngo (No 3)

[2001] NSWSC 1021

Reported Decision: 125 A Crim R 495

New South Wales

Supreme Court

CITATION:	R v Ngo [2001] NSWSC 1021
CURRENT JURISDICTION:	Common Law Division Criminal
FILE NUMBER(S):	SC 70086/98
HEARING DATE(S):	12 October 2001
JUDGMENT DATE:	14 November 2001
PARTIES :	Regina (NSW) Phuong Canh Ngo - Prisoner
JUDGMENT OF:	Dunford J

COUNSEL :	MG Tedeschi QC / RA Hulme - Crown PJ Pearsall - Prisoner
SOLICITORS:	SE O'Connor - Crown LMG Solicitors & Attorneys - Prisoner
CATCHWORDS:	CRIMINAL LAW - sentencing - murder - victim a member of Parliament - killed for political reasons - protection of persons in public life - application of s 61(1) Crimes (Sentencing Procedure) Act 1999
LEGISLATION CITED:	Crimes Act 1900, s 19A Crimes (Sentencing Procedure) Act 1999, ss 21(1), 28, 61(1) & (3)
CASES CITED:	The Queen v de Simoni (1981) 147 CLR 383 R v Harris [2000] NSWCCA 469; 50 NSWLR 409 R v Kalajzich (1997) 94 A Crim R 41 R v Barker (unreported - NSWCCA - 20 September 1995) R v Rose [1999] NSWCCA 327 R v Fernando [1999] NSWCCA 66 R v Kocan [1966] 2 NSWR 565 The Queen v Eastman (ACTSC - 10 November 1995) AB v The Queen [1999] HCA 46, 198 CLR 111 R v Cartwright (1989) 17 NSWLR 243 R v Previtera (1997) 94 A Crim R 76
DECISION:	Prisoner sentenced to life imprisonment.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL

70086/98
Dunford J

Wednesday, 14 November 2001


R v Phuong Canh NGO

Remarks on Sentence

On 29 June last, the Jury found the prisoner, Phuong Canh Ngo, guilty of the murder of the late John Newman MP who was shot outside his home at 15 Woods Avenue, Cabramatta on 5 September 1994. The shots were fired by a person who came to the scene by car and was driven away at speed immediately after the shooting, and the Jury's verdict established that the killing was instigated and organised by the prisoner.

2 The Crown case depended to a large extent on the evidence of two alleged accomplices who had been granted immunity from prosecution. Their names have been suppressed and I shall refer to them simply as W1 and W2. They each gave evidence of previous attempts on the deceased’s life instigated by the prisoner, and although W1 said that he was not involved after about May 1994, W2 gave evidence that he was in the motor vehicle which carried the shooter to and from the scene of the shooting on the night of the murder, although he claimed he was tricked into being there by a switch of mobile phones in the office of the Mekong Club. He identified the persons whom he said were the shooter and driver and claimed that, although in the car, he did not know why he was there, and in particular did not know that the shooting was to take place.

3 The Defence challenged W2's version of what occurred on the evening of 5 September and in particular his evidence of the so-called switch of the mobile phones, his claim that he was tricked into being at the murder scene unaware of what was about to happen and his identification of the other two accused as the shooter and driver respectively. Parts of his evidence were unconvincing; and the acquittal of the other two accused tried with the prisoner, the alleged shooter and the alleged driver, showed that the Jury was not prepared to accept the evidence of W2 on these matters beyond reasonable doubt.

4 These considerations, however, were not applicable to the case against the prisoner because there was undisputed evidence against him of events on the night of the murder which did not depend on the evidence of W2 but were established by the evidence of the telephone calls from the car phone in the Camry motor vehicle which I am satisfied was being used by the prisoner, the tracing of the movements of such vehicle by reference to those telephone calls, the evidence of Shirley Barrett who recognised the prisoner’s voice in two of the calls, in one of which he identified himself, and the finding of the murder weapon at Voyager Point, a location consistent with the movements of the vehicle.

5 Moreover, irrespective of W2’s evidence concerning the switch of the mobile phones, what is significant in relation to such phones is that the Telstra records show that calls made to or from each of them, that is the Fairfield Council mobile, the Mekong Club mobile and the Camry car phone (all of which were under the control and disposition of the prisoner) between 8.58 pm and 9.31 pm (2 minutes after the shooting) are consistent with them all being either in the vicinity of John Newman's home or on the route described by witnesses as that taken by the getaway car immediately after the shooting. There was also other evidence against him including evidence pointing to his part in the prior planning and attempts, inconsistent and untruthful answers given by him to police when interviewed, and I am satisfied that he had a motive to kill John Newman.

6 W1 and W2 who were employees of the Mekong Club, of which the prisoner was the founder and Honorary President, gave evidence that between March and the end of April 1994 the prisoner enlisted their aid in the purchase of guns, and he also asked W2 to find a person who was prepared to kill John Newman for money. W2 enlisted the aid of an intermediary, but the intermediary was unable to find someone who was prepared to do the job having regard to the high profile of the intended victim.

7 After a .22 rifle had been purchased at Botany and a .32 Beretta pistol, which ultimately became the murder weapon, had been purchased and taken to the Mekong Club where it was shown by W2 to Robert Zervos, the manager, three so-called attempts were made to kill John Newman; firstly, outside the Thien Hong Restaurant at Cabramatta, secondly, at the Greyhound Club at Yagoona and thirdly, at Newman's house. All of these attempts failed because the two would-be assassins, W1 and W2, were either incompetent, or could not bring themselves to actually carry out the crime. They each suggested that they expected the other one to fire the first shot and that they were only there as “back up”, but the net result was that no shots were fired and no attempt was made. They also gave evidence of a couple of other so-called plans to kill John Newman devised by the prisoner during this time, which can only be described as “hare-brained”, one a proposal to shoot him at his office and another one to shoot him at Fairfield Council Chambers when he was attending a meeting, a place where it seems he rarely attended meetings in 1994.

8 There was no corroboration of the accomplices in relation to these earlier attempts on John Newman's life, but there was substantial corroboration in respect of the purchase of the guns and the attempt to find an assassin through the intermediary, including the evidence of Tong Ngoc who said that W2 told him at the time that the Beretta was for the prisoner who wanted it to kill John Newman. W1 and W2 each tended to minimise his own role as against that of the other, (as accomplices are wont to), but I can see no reason for them giving evidence of criminal activities by themselves if such events never took place, and their evidence, although differing in detail, contained so many points of commonality that I am satisfied that the so-called attempts must have taken place and at the instigation and direction of the prisoner. After the third of these attempts W1 withdrew from the enterprise and left the Mekong Club, although he later rejoined.

9 At some stage, which it seems to me was probably after W1’s withdrawal from the enterprise, W2 on the instruction of the prisoner made an approach to a person who gave evidence under the pseudonym of Robert Morris and through him acquired a Ruger semi-automatic pistol, and Morris also made arrangements with another man for him to kill Newman. However, the other man apparently also got cold feet and the Ruger was reported missing. In respect of this incident, the evidence of W2 was substantially corroborated by Morris. After the loss of the Ruger, a .45 Magnum was acquired, again through the offices of Morris, and the evidence relating to this was corroborated by Morris and by the person through whom Morris acquired the gun; and following that, again through Morris, an approach was made to have a silencer fitted to the Beretta.

10 W1 gave evidence that after he returned to the Club, the prisoner asked him on two occasions for the loan of his car (although the prisoner had virtually exclusive use of the white Camry owned by the club) and on one of these occasions told him that he wanted the car to kill John Newman. W1 refused, expressing a fear that if he lent the car to the prisoner for this purpose and Newman was killed his number plate might be identified.

11 On the evening of Saturday 3 September 1994 at about 9.45 pm two witnesses saw a person whom they recognised as the prisoner standing beside a white car in Judith Avenue, a street to the rear of John Newman’s house, and then or shortly afterwards members of another family nearby saw another car parked in a position from where the front entrance of his house could be observed. The Crown suggested the prisoner and whoever was in the other vehicle were engaged in surveillance of Newman’s house and this may well be so, although another possibility is that they were there to kill him that night and their plans were thwarted because he was delayed at a political fundraising function at the Serbian Club, and did not arrive home until after 11.30 pm.

12 On Monday 5 September 1994, a general staff meeting was held at the Mekong Club. The minutes record that the meeting finished at 8.45 pm but a number of witnesses gave evidence that it finished earlier, and I am satisfied that it did finish earlier, probably at about 8.15 pm. Then at about 8.30 pm the prisoner and others left the Club. W2 claimed he did not leave with them but left a short time later after the Mekong Club mobile phone and the Fairfield Council mobile phone in the Manager's office had been switched in a manner which tricked him into being at the murder scene.

13 The deceased arrived home from a Labor Party branch meeting just before 9.30 pm and drove into his carport. His fiancée Lucy Wang heard his car coming, went out to greet him and they were together putting a tarpaulin over the car when a gunman got out of a vehicle and fired four shots at the deceased with the Beretta at point blank range, two of the shots entering his chest causing fatal injuries. The gunman then got back into the car which left the scene quickly without any headlights on via Warwick Avenue, Towers Street and Cabramatta Road whilst the prisoner travelled past Newman's home in the opposite direction in the white Camry, turned left into Bowden Street and then left onto Cabramatta Road. I am satisfied that both vehicles then travelled west on Cabramatta Road until they reached a service station on the corner of Townsend Road where the gun was transferred to the prisoner.

14 He possibly went briefly to his home in Bonnyrigg and then certainly drove to and through the Liverpool CBD and down Heathcote Road to Voyager Point, then a remote, sparsely populated area, where he threw the gun off a footbridge into the Georges River, whence it was recovered some 3 years, 9 months later and subsequently identified as the murder weapon. He then returned to the Mekong Club via Chipping Norton where he delivered some material to the letterbox of the editor of a Vietnamese newspaper. He was back at the club in time to watch the news on television at 10.30 pm where the death of John Newman was reported.

15 I am satisfied to the criminal standard that Phuong Ngo's motive for the killing of John Newman was naked political ambition and impatience. He wanted to be the Legislative Assembly member for Cabramatta, but had given the Labor Party hierarchy an undertaking that he would not run for pre-selection whilst John Newman was the sitting member. He could not wait until the next general election due in 1999; and so he needed to remove John Newman as the sitting member in order that he could run in the pre-selection ballot which, on the numbers, he had a very good chance of winning. The method he chose was to have John Newman killed.

16 Both in the trial and on sentence, it was submitted that his political ambition was a seat in the Legislative Council rather than the Assembly as that would give him influence state wide rather than merely in the Cabramatta area, and it had been indicated to him that he would be favourably considered for such a seat, even as late as at his lunch with John Della Bosca (then State Secretary of the Labor Party) on the day of the murder, and that the motive for the murder may have been no more than personal animosity arising from mud slinging at the prisoner by the deceased.

17 I reject that submission for a number of reasons. The prisoner had already shown his desire for the Assembly seat by running for it as an independent (before joining the Labor Party), he was a Councillor and Deputy Mayor of Fairfield City Council which largely encompassed the Cabramatta electorate, and his power base was in Cabramatta (with its large Vietnamese and other Asian population).

18 Moreover, in statements made by him after the death of John Newman, particularly in his interview with Michael Cameron, political journalist with the Daily Telegraph, on the day following, in his first interview with police on 14 September and in his joint press conference with Nick Lalich on 15 September 1994, he indicated that he wished to replace John Newman if the pre-selection was held locally, and the evidence establishes that, mainly through building up the Canley Heights branch, he had sufficient support in a local rank and file ballot to obtain the pre-selection. There was also the evidence of another witness that some months prior to the killing the prisoner told her that he wanted to go into Parliament and be leader of the area, and the only thing that stood in his way was John Newman.

19 Reference was made to a rule in the Labor Party to the effect that candidates for pre-selection had to have two years’ continuous membership of the Party before being eligible to contest a pre-selection ballot, but there was sufficient evidence in the trial to satisfy me that this rule could be waived, and I have no doubt that the prisoner was confident that he could get it waived.

20 If he had wanted a seat in the Council and was confident of getting it, there was no reason to proceed with the murder, as I am satisfied, as was the Jury, that he did. Even if it was a Council seat he was seeking, the evidence was that he needed the support of the sitting Assembly member to obtain a winnable place on the “ticket”, and whilst John Newman was the member, he did not have that support.

21 Phuong Ngo's defence, unsupported by any evidence from him, was that not only did he have nothing to do with the killing of John Newman on 5 September 1994 but that, whilst the other activities of W1 and W2 as described by them including the purchase of guns, soliciting others to kill John Newman and the three previous attempts on his life, may well have occurred, those activities were not instigated or procured by him. I am satisfied that these earlier events were done at his instigation and on his behalf; he was the person with the motive and by reason of his standing in the community, his authority in the Mekong Club, and his personal interest in their welfare, he clearly exercised a strong influence over W1 and W2, and their activities in this regard all revolved around him and/or the Mekong Club which was in a very real sense his alter ego.

22 The prisoner has not been charged with or convicted of, these earlier attempts and he is not to be punished for them: The Queen v de Simoni (1981) 147 CLR 383, but they are relevant to demonstrate his planning and determination over a long period of time to bring about the actual killing on 5 September and persistence in his design notwithstanding previous failures. Although he was not the actual shooter, I regard him as the principal offender, and proceed accordingly.

23 Not only is the deliberate, premeditated killing of another human being a most serious offence at any time, the criminality in the present case is greatly aggravated because it involved the killing of a member of Parliament for political ends. It therefore constituted an offence not only against the individual victim, but it was also a direct attack on our system of democratic representative government, and struck at the very fabric of our public institutions.

24 We are all aware that our system of parliamentary democracy has its defects, but when one considers other democratic systems around the world it can fairly be said that our system is as good as, if not better than, most, if not all, of the others.

25 In particular our system of parliamentary elections and pre-selection of parliamentary candidates operates without physical violence or intimidation, and a clear message must be sent that there is no room in this country for killings, violence or intimidation as part of the political process.

26 Section 19A of the Crimes Act 1900 provides that a person convicted of murder is liable to life imprisonment, although s 21(1) of the Crimes (Sentencing Procedure) Act 1999 permits the Court to impose a sentence of imprisonment for a specified term. Section 61(1) of the latter Act directs the Court to impose a sentence of life imprisonment if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that “the community interest in retribution, punishment, community protection and deterrence” can only be met through the imposition of such a sentence, although s 61(3) restores the effect of s 21(1). These provisions and the relationship between them were considered in some detail in R v Harris [2000] NSWCCA 469; 50 NSWLR 409, and it is appropriate to firstly consider the level of culpability of the prisoner in the commission of the offence and whether the case is one calling for a life sentence in terms of s 61(1); and if so, whether in the exercise of the discretion conferred by s 21(1) the subjective features relating to the prisoner justify a lesser sentence of imprisonment for a specified term: Harris at [94].

27 As it was pointed out in Harris at [86] to [92], although the criterion in s 61(1) may not be identical to the criterion for a life sentence at common law, which was the “worst category of case”, nevertheless cases decided under the common law are generally relevant to a consideration of the degree of culpability referred to in s 61(1) as requiring the imposition of life imprisonment. The position at common law was summarised by Hunt CJ at CL in R v Kalajzich (1997) 94 A Crim R 41 at 50-57 as follows:

“The maximum penalty for murder of penal servitude for life, meaning for the term of the prisoner's natural life, is … reserved for cases falling within the worst category of cases, but it is not reserved only for those cases where the prisoner is likely to remain a continuing danger to society for the rest of his life or for those cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment. It must nevertheless be possible in the individual case to point to its particular features which are of very great heinousness, and there must be an absence of any facts mitigating the objective seriousness of the crime (as distinct from any subjective features mitigating the penalty to be imposed).”

28 Such cases have generally involved killings which were sex related, thrill killings, killings involving extended suffering by the victim or extraordinary violence, multiple killings or cases where the prisoner is a continuing danger to the community (see cases cited by Hunt CJ at CL at 51 n25, and also R v Barker (unreported – NSWCCA – 20 September 1995), R v Rose [1999] NSWCCA 327, R v Fernando [1999] NSWCCA 66); but these categories are not closed and the test to be applied under s 61 directs attention to the “community interest in retribution, punishment, community protection and deterrence”.

29 In R vKocan [1966] 2 NSWR 565 the appellant had pleaded guilty to the charge of wounding with intent to murder the then leader of the Federal Opposition. The motive was not political gain for himself but the appellant, although not coming within the M’Naghten Rules, was mentally ill, abnormally obsessed with feelings of his unimportance and sought the achievement of some form of fame or notoriety by the killing of a well known figure. In imposing a life sentence, Herron CJ said:

“I believe that is necessary for me to pass such sentence as may deter any other person from even considering the molestation and any attempt upon the life and safety of our public men. They must be allowed to go about their affairs of State with an entire appreciation that they are protected to the full extent of the law.”

30 The sentence was affirmed by the Court of Criminal Appeal where McClemens J said at 571:

“This country has been mercifully free from attacks on public men and it is the Court’s duty to take such steps as are available to it to see this state of affairs remains so. Therefore the Courts should indicate very plainly that this type of thing is not to be permitted.”

31 When sentencing David Eastman to life imprisonment for the murder of the Assistant Commissioner of the Australian Federal Police, Carruthers AJ referred to these remarks and said they “carry as much force now as they did in 1966 – if not more force”: The Queen v Eastman (ACTSC - 10 November 1995) at 20.

32 In my opinion, the killing of a member of Parliament for political purposes, involving as it does an attack on our constitutional system of parliamentary democracy, and particularly when committed for personal political gain gives rise to such culpability that the “community interest in retribution, punishment, community protection and deterrence” can only be met by the imposition of a life sentence.

33 These features are aggravated in the present case by the long period of planning and organisation which preceded the killing, and by the prisoner’s corruption of other persons such as W1, W2 and the persons who actually carried out the killing on his behalf.

34 It therefore becomes necessary having regard to s 21(1) to consider whether there are any subjective features including prospects of rehabilitation that are such as render it inappropriate to impose a life sentence, while bearing in mind that in some cases the culpability in the commission of the offence is so extreme that the subjective features should be disregarded: Harris at [103].

35 The prisoner was born on 9 July 1958, is now 43 years old and has no previous convictions. He was born in Vietnam where his family had a chicken farm and was apparently moderately successful, but their life changed with the fall of Saigon in 1975 and he came to Australia in 1982 with his brother, whom he assisted in their early days in this country. The prisoner started his work employed by a flyscreen company in Punchbowl, but became successful and ultimately became not only the founder and Honorary President of the Mekong Club but also Deputy Mayor of Fairfield, and he also owned and published a Vietnamese Newspaper.

36 There was a large amount of evidence on sentence concerning the prisoner’s work for the community and I am satisfied that he worked very hard both as a Councillor and Deputy Mayor of the City of Fairfield, building bridges between Asian and other groups of the community and assisting constituents with their problems with Local Government and otherwise. He was instrumental in the formation of the Mekong Club which enabled Asian people, especially Vietnamese, to have their own club and support their ethnic community, he fostered an Asian language and culture school at weekends, and he caused the Mekong Club to employ his co-accused Quang Dao as a social worker to help members of the community. He was also instrumental through his efforts on Fairfield City Council in having the Fairfield Drug Intervention Centre established.

37 Moreover, the evidence establishes that since he has been in custody on remand he has encouraged other young prisoners, particularly Asian prisoners, to better themselves by taking advantage of educational opportunities offered in the gaol. He has also, with the authorities’ approval, organised cultural and festival activities within the gaol. The evidence is to the effect that he is regarded by prison officers as a model prisoner and the other prisoners respect him.

38 I am satisfied that the prisoner has done a lot of good in his area. He came to this country as a refugee and has achieved a great deal for himself and for other migrants and the Australian community generally, and the tragedy is that he had a lot more to offer. He thought he could be of greater service to the community if he was the member for Cabramatta, and quite possibly he could have, but tragically he was impatient and overly ambitious, and in seeking to become the member he not only deprived John Newman of his life, but destroyed any further potential which he himself may have had.

39 Consistent with his plea of not guilty there has been no expression of remorse or regret. I am satisfied that he is unlikely to re-offend, at least for political purposes, although a lack of evidence does not enable me to form a view as to whether there might be a risk of him offending again if his commercial or other interests were at stake.

40 Evidence emerged during the sentencing proceedings that the prisoner is currently “on protection” and it was submitted that service of a sentence on protection is a more arduous form of imprisonment and therefore needs to be taken into account when sentencing: AB v The Queen [1999] HCA 46, 198 CLR 111 per Kirby J at [105], R v Cartwright (1989) 17 NSWLR 243 at 255. I therefore granted liberty to the prisoner’s legal representatives to submit further material in writing concerning the nature of his incarceration and the restrictions arising from his being “on protection”.

41 This material has now been received (which I have had marked as Exhibits X27, X28 and X29) and it establishes that he is in protective custody at the request of his legal representatives because of anonymous death threats made against him, and that he could apply to be taken off protection, an application which may not necessarily be granted.

42 I have taken all these matters into account but, for the reasons already given, I am satisfied that the level of culpability in the commission of the offence is so extreme that the subjective features must be disregarded and the community interest as defined in s 61(1) can only be adequately met by a sentence of life imprisonment.

43 Where a life sentence is imposed, the Court has no power to set a non-parole period: Harris at [22]; and although I am satisfied that the prisoner should remain under sentence for the remainder of his life, nevertheless this is not a case where I believe he necessarily needs to be kept in custody for the whole of that time, and if I had the power to do so, I would fix a non-parole period, but it would be a very long one. I echo the remarks of Wood CJ at CL in Harris at [123] that Parliament might usefully give consideration to whether the Court should have power to fix a non-parole period in cases to which s 61(1) applies.

44 Pursuant to s 28 of the Crimes (Sentencing Procedure) Act 1999 I have received and read the Victim Impact Statement prepared by the deceased’s brother. I acknowledge the grief and distress suffered by the victim’s mother and brother and it must be remembered that they have also suffered a tragic loss, although their loss is not relevant to the sentence appropriate to be imposed on the prisoner: R v Previtera (1997) 94 A Crim R 76.

45 Phuong Canh Ngo for the murder of John Newman I sentence you to imprisonment for life.

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Last Modified: 07/17/2013