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Court of Criminal Appeal 13 June 2013

Ngo v R

[2013] NSWCCA 142

Also reported as (2013) 233 A Crim R 121
Homicide
CRIMINAL LAW APPEAL POLITICAL MOTIVE FOR MURDER NO ERROR FOUND

Citation: Ngo v R [2013] NSWCCA 142
Court: Court of Criminal Appeal, New South Wales
Date: 13 June 2013
Judges: Simpson J (with Johnson J and Grove AJ agreeing)

Background

The applicant had been convicted by jury in 2001 of the murder of John Newman, a sitting member of the NSW Legislative Assembly, who was shot dead in the driveway of his Cabramatta home in September 1994. The sentencing judge, Dunford J, found that the applicant had orchestrated the killing out of political ambition, having arranged for Mr Newman to be murdered so that he could contest preselection for the Cabramatta seat. Dunford J imposed a sentence of life imprisonment, declaring that the applicant's culpability was so extreme that only a life sentence could satisfy the community interests of retribution, punishment, protection, and deterrence.

The applicant's conviction appeal was dismissed by the Court of Criminal Appeal in 2003, and special leave to appeal to the High Court was refused in 2004. Separately, two applications for a further inquiry into the conviction (under Part 7 of the Crimes (Appeal and Review) Act 2001) were also rejected.

In August 2012, more than a decade after the statutory time limit for filing a sentence appeal expired in December 2001, the applicant sought an extension of time to file an application for leave to appeal against his life sentence. The Crown opposed the application.

  • Whether the applicant should be granted an extension of time to file an application for leave to appeal against the life sentence, given the significant delay
  • Whether the sentencing judge erred in applying s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (the provision governing the imposition of life sentences) to the applicant
  • Whether the sentencing judge erred in finding that the applicant's motive for the murder was political ambition
  • Whether the sentencing judge failed to take into account relevant subjective factors in the applicant's favour

Decision

Extension of time. The statutory time for filing an appeal expired in December 2001. Although an application of sorts had been filed shortly after conviction on the applicant's behalf, it was formally abandoned in November 2002. The applicant sought to attribute the subsequent delay to health problems, the death of family members, and other personal circumstances, but these events post-dated the expiry of the time limit by at least seven years. Simpson J found the explanation unconvincing and, candidly, disingenuous. The court also concluded that the real reason for the long delay was that the applicant had been advised in 2003 that a sentence appeal was futile and had accepted that advice.

Ground 1: Application of s 61(1). The applicant argued that Dunford J had no legitimate basis to sentence him under s 61(1) of the Crimes (Sentencing Procedure) Act 1999, given the transitional legislative history applicable at the time of the offence in 1994. Simpson J conducted a detailed review of the sequence of sentencing legislation from 1955 onwards and concluded that s 61(1), as it stood at sentencing, was the correct provision to apply. No error was established on this ground.

Ground 2: Finding of political motive. The applicant challenged the sentencing judge's finding that his motive was political ambition. Simpson J found that this factual finding was soundly based on the trial evidence and the jury's verdict, and that it had been maintained throughout the earlier conviction appeal. No error was identified in the sentencing judge's characterisation of the motive.

Ground 3: Subjective factors. The applicant contended that Dunford J had failed to give adequate weight to subjective factors in his favour. Simpson J found that the sentencing judge had in fact addressed and considered the relevant subjective matters and that the applicant had not identified any factor that was overlooked. This ground also lacked merit.

Because all three proposed grounds failed on their merits, and because the explanation for the delay was not credible, Simpson J concluded that granting the extension would serve no purpose. The application was refused.

Orders Made

  • The application for an extension of time in which to file an application for leave to appeal is refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an applicant seeking an extension of time must provide a credible explanation for the delay; a delay of more than a decade, explained only by personal circumstances that arose years after the time limit expired, will not suffice.
  • Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999, a life sentence may be imposed where the sentencing court is satisfied that the offender's culpability is so extreme that only a life sentence can meet the community interests of retribution, punishment, protection, and deterrence.
  • No error arises in a sentencing judge applying s 61(1) merely because the underlying offence predated the current legislative formulation, provided the transitional legislative history supports its application.
  • A factual finding at sentence that is consistent with the jury's verdict and the evidence adduced at trial will not be disturbed on appeal without clear grounds for doing so.
  • In refusing the extension, the court was explicit that it had satisfied itself the appeal would fail on the merits even if time were extended, reinforcing that the absence of merit in proposed grounds is a significant consideration when courts weigh applications for extensions of time.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Life Sentences) Amendment Act 1989 (NSW)
- Crimes Amendment (Mandatory Life Sentences) Act 1996 (NSW)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Sentencing Act 1989 (NSW)
- Crimes (Amendment) Act 1955 (NSW)

Cases:
- R v Ngo [2003] NSWCCA 82; 57 NSWLR 55
- Ngo v The Queen [2004] HCATrans 185
- Phuong Canh Ngo, Application under Part 7 Crimes (Appeal and Review) Act 2001 [2010] NSWSC 981
- Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
- R v Harris [2000] NSWCCA 469; 50 NSWLR 409
- R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- R v MJR [2002] NSWCCA 129; 54 NSWLR 368
- R v Maclay (1990) 19 NSWLR 112
- R v Kalajzich (1997) 94 A Crim R 41
- R v Fernando [1999] NSWCCA 66
- Edwards v R [2009] NSWCCA 199