Regina v Ngo - [2001] NSWCCA 15

CITATION: Regina v Ngo [2001] NSWCCA 15

FILE NUMBER(S): CCA 60471/00

HEARING DATE(S): 12/02/01

JUDGMENT DATE:
12 February 2001

PARTIES :

Regina v Michael Ngo

JUDGMENT OF: James J at 33; Whealy J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/0228

LOWER COURT JUDICIAL
OFFICER : Karpin DCJ

COUNSEL : Mr M. Grogan - Crown
Mr Webb - Applicant

SOLICITORS: S. E. O'Connor - DDP
------- - Applicant

LEGISLATION CITED: Crimes Act 1900
Justices Act 1902
Crimes Sentencing Procedure Act (1999)

CASES CITED:
Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 381
Regina v Gallagher (1991) 23 NSWLR 220
Regina v Gordon (1994) 71 A Crim R 469

DECISION: Leave to appeal granted. Appeal against sentence dismissed

IN THE COURT

OF CRIMINAL APPEAL

60471/00

JAMES J
WHEALY J

MONDAY 12 February 2001

REGINA v Michael NGO

JUDGMENT

1 WHEALY J: This is an application for leave to appeal against a sentence by her Honour District Court Judge Karpin on 30 June 2000. The applicant had entered a plea of guilty to one count of armed robbery with wounding pursuant to s 98 of the Crimes Act and one count of common assault pursuant to s 61 of the Crimes Act. The first offence carries a maximum penalty of imprisonment of 25 years, the second carries a maximum penalty of imprisonment of two years.

2 The applicant was committed to the District Court for sentence pursuant to s 51 A of the Justices Act. On the first count her Honour sentenced the applicant to a period of three years imprisonment with a non parole period of 18 months. On the second count a fixed terms of nine months imprisonment was imposed.

3 The ground of appeal is that the sentence was manifestly excessive. There are, in the written submissions, essentially two bases in support of the appeal. First, that her Honour failed to give sufficient weight to the assistance given by the authorities. Secondly, her Honour failed to give sufficient weight to the applicant's plea of guilty in the early stages within the guidelines of Regina v Thomson; R v Houlten (2000) 49 NSWLR 381. I note that the sentence was imposed and the reasons for sentence were given some little time before the guideline judgment itself.

4 As an alternative, it was submitted in the written submissions that her Honour failed to give sufficient weight to each of these two matters as combined issues.

5 In oral submissions, parity issues were raised for the first time. The nature of this submission is that, as the applicant was only 18 and a half when the offences were committed; and as he had had, admittedly, a difficult and unhappy childhood in many respects, the applicant should have been sentenced, by comparison with the way the co-offender Ho was sentenced, as if he were a juvenile. The co-offender Mr Tony Ho was at the time 22 years of age. The disparity, it is…

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 Regina v Ngo

Details

AGLC: Regina v Ngo [2001] NSWCCA 15
Case: [2001] NSWCCA 15
Decision Date: 12 February 2001

CaseChat Overview and Summary

In Regina v Ngo, Michael Ngo sought leave to appeal against a sentence imposed by District Court Judge Karpin. Ngo had pleaded guilty to armed robbery with wounding and common assault. The appeal centred on the contention that the sentence was manifestly excessive. The applicant argued that the sentencing judge failed to adequately consider the assistance given to the authorities and the early plea of guilty. Additionally, the applicant raised parity concerns for the first time in oral submissions, suggesting that he should have been treated as a juvenile due to his age and troubled background.

The legal issues before the Court of Criminal Appeal were whether the District Court had erred in assessing the sentence, particularly in failing to sufficiently consider the applicant's cooperation with authorities and his early plea of guilty. The Court also needed to determine if the parity issue, raised for the first time during oral submissions, could be considered.

The Court found that the sentencing judge had appropriately weighed the mitigating factors, including the applicant's assistance to the authorities and his early plea of guilty. The reduction in sentence for these factors was deemed appropriate and within the proper range. The Court emphasized that the nature of the crime, general deterrence, and retribution remained significant sentencing considerations, despite the applicant's troubled background. The Court concluded that the sentence, including the non-parole period, was not manifestly excessive and dismissed the appeal against the sentence.

The final orders of the Court were that leave to appeal was granted, but the appeal against the sentence was dismissed.

Orders