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Court of Criminal Appeal 12 February 2001

Regina v Ngo

[2001] NSWCCA 15

Assault & violenceTheft & propertyFirearms & weapons

Citation: Regina v Ngo [2001] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 12 February 2001
Judge(s): Whealy J; James J (agreeing)

Background

The applicant pleaded guilty in the District Court to one count of armed robbery with wounding under s 98 of the Crimes Act 1900 and one count of common assault under s 61 of the same Act. The offences arose from a late-night robbery in Berala in June 1999, in which the applicant lured a motorist by pretending to need help on the roadside, then assaulted him with a metal bar and stole his wallet. The applicant's co-offender struck the victim from behind. The victim's passenger was chased and pushed to the ground; both were hospitalised.

District Court Judge Karpin sentenced the applicant to three years imprisonment with a non-parole period of 18 months on the first count, and a fixed term of nine months on the second count. The applicant was 18 and a half at the time of the offences and had experienced significant hardship in childhood, including the loss of both parents before the age of 15.

The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, relying on the sentencing judge's alleged failure to give sufficient weight to his assistance to authorities, his early guilty plea, and (raised for the first time in oral argument) a parity argument based on his relative youth compared with his co-offender.

  • Whether the sentencing judge gave sufficient weight to the applicant's assistance to law enforcement authorities under s 23(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether sufficient weight was given to the applicant's early guilty plea under s 22 of the Crimes (Sentencing Procedure) Act 1999 and in accordance with the guideline judgment in Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 381
  • Whether the applicant was sentenced on an appropriate parity basis relative to his older co-offender, given the applicant's age and background

Decision

The Court noted that the guideline judgment in Thomson; Houlton had been delivered after the sentence was imposed, and that the sentencing judge had nonetheless taken the applicant's early plea into account. The Court found that the head sentence of four years was properly conceded by the applicant to be within range, and that the non-parole period of 18 months reflected favourable subjective circumstances. No error in the treatment of either the plea or the assistance to authorities was established.

On the parity argument, the Court accepted that the applicant's youth was a relevant subjective factor, but characterised him as a young adult rather than a juvenile. The Court noted that the applicant had originated the plan to commit the robbery, with his motivation rooted in a gambling addiction that itself reflected a level of adult maturity. Applying the principle from Regina v Gordon (1994) 71 A Crim R 469, the Court held that general deterrence and retribution remained significant sentencing considerations where a young person commits a serious offence in the manner of an adult.

The Court found that the sentencing judge had treated the applicant and his co-offender as equal participants, which was appropriate given that the applicant was the instigator. The judge had also made specific allowances for the applicant's subjective circumstances, assistance to authorities, and early plea, reflected particularly in the non-parole period. The Court concluded the applicant had no legitimate sense of grievance and the sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Where a young adult offender initiates a serious offence and participates in a manner consistent with adult conduct, general deterrence and retribution remain significant sentencing considerations, and the protective function of the courts does not displace those factors simply because of the offender's age.
  • A non-parole period can properly reflect favourable subjective circumstances, including youth, difficult background, assistance to authorities, and prospects for rehabilitation, even where the head sentence sits within the standard range.
  • Under s 23(1) of the Crimes (Sentencing Procedure) Act 1999, a court may reduce a sentence for assistance to law enforcement; here, the Court of Criminal Appeal found that such assistance had been taken into account by the sentencing judge and disclosed no appellable error.
  • Parity arguments based on age differences between co-offenders do not automatically warrant differential treatment where the younger offender was the instigator of the offence and both participated equally in its commission.
  • In dismissing the appeal, the Court applied the principle from Regina v Gordon that a young person who behaves as an adult in committing a crime of gravity cannot avoid the full weight of deterrence-based sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 98
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23(1)

Cases:
- 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