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Supreme Court 6 May 2019

R v Kevin Ly; R v Dung Thi Ngoc Ngo

[2019] NSWSC 502

Homicide
CRIMINAL LAW MURDER SENTENCE FINDINGS OF FACT INCONSISTENT EVIDENCE WHETHER LIFE SENTENCE APPROPRIATE

Citation: R v Kevin Ly; R v Dung Thi Ngoc Ngo [2019] NSWSC 502
Court: Supreme Court of New South Wales
Date: 6 May 2019
Judge(s): Bellew J

Background

Two offenders, Ly and Ngo, were convicted by a jury in November 2018 of two counts of murder each. The victims, a man and a woman who were in a relationship, were killed on 10 April 2013 at residential premises in Canley Vale, New South Wales. The Crown's case was that both killings were carried out pursuant to a joint criminal enterprise motivated by a suspected drug theft.

The background involved a drug laboratory operating from a garage at the premises, overseen by one of the victims. Ngo was found to have had some interest in the laboratory's operation. When drugs went missing, Ngo suspected that victim of theft. Both victims attended the premises on 10 April 2013 and were murdered there.

The sentencing hearing required Bellew J to make findings of fact consistent with the jury's verdicts, a task made significantly more difficult by the unreliability of the Crown's two principal witnesses, each of whom had been given undertakings that their evidence would not be used against them (commonly described as indemnified witnesses).

  • What facts could be established consistently with the jury's verdicts, given the unreliable evidence of two indemnified Crown witnesses?
  • Whether a life sentence was warranted for either offender.
  • Whether the offending could be characterised as a "contract killing," which would have aggravated the sentences.
  • How to assess the relative culpability of the two offenders where the evidence did not clearly distinguish between them.
  • What aggregate sentences were appropriate for the commission of two murders pursuant to a joint criminal enterprise?

Decision

Fact-finding under evidentiary constraints

Bellew J approached fact-finding with considerable caution, noting that any findings had to be consistent with the jury's verdicts (following R v Isaacs). The Crown's case rested substantially on two indemnified witnesses whose evidence was internally inconsistent, inconsistent with each other, and at times inconsistent with objective evidence such as telephone records. As a result, the court was unable to determine how the victims came to be at the premises on the day of the murders, or specifically who arranged for them to attend. The court could, however, accept the direct evidence of one of those witnesses regarding the physical circumstances of the killings themselves, which the jury plainly had accepted.

Life sentence rejected

The Crown sought life sentences for both offenders. The court declined, finding that the evidence did not establish this was a case of the worst category of offending that would warrant the imposition of the maximum penalty. The court was not satisfied that the offending could properly be characterised as a "contract killing," noting the evidentiary uncertainty around whether any payment was made for the murders. The crown's contention on this point relied on witness evidence that the court found unsatisfactory in material respects.

Culpability and parity

The evidence did not permit the court to draw a reliable distinction between the individual culpability of Ly and Ngo. Consistent with the principle in R v Olbrich that a court sentencing for offences can only take facts into account on sentence if established beyond reasonable doubt (in favour of the Crown) or on the balance of probabilities (in favour of the offender), the court declined to make findings adverse to either offender where the evidence was insufficiently reliable. Given the similar culpability that could be established, the court imposed identical sentences on both offenders. The court also noted that neither offender had pleaded guilty, so no discount for a guilty plea arose (following GAS v R).

Aggregate sentences

For each offender, the court set indicative sentences of 28 years for each murder, and imposed aggregate sentences of 40 years imprisonment with a non-parole period of 30 years.

Orders Made

In respect of Ngo:
- Convicted of the murder of the first victim on 10 April 2013
- Convicted of the murder of the second victim on 10 April 2013
- Indicative sentence of 28 years for each murder
- Aggregate sentence of 40 years imprisonment, commencing 22 September 2016 and expiring 21 September 2056
- Non-parole period of 30 years, expiring 21 September 2046
- Eligible for parole 22 September 2046

In respect of Ly:
- Convicted of the murder of the first victim on 10 April 2013
- Convicted of the murder of the second victim on 10 April 2013
- Indicative sentence of 28 years for each murder
- Aggregate sentence of 40 years imprisonment, commencing 19 September 2016 and expiring 18 September 2056
- Non-parole period of 30 years, expiring 18 September 2046
- Eligible for parole 19 September 2046

Key Takeaways

  • Sentencing fact-findings must be consistent with the jury's verdicts, but a sentencing judge is not required to accept all of the evidence that the jury may have found persuasive, particularly where that evidence was not essential to the verdict on a particular issue.

  • Where Crown evidence at trial came from indemnified witnesses whose accounts were materially inconsistent, the sentencing court may be left unable to make findings on significant factual questions, including how victims came to be at a crime scene and who arranged their attendance.

  • A characterisation of murders as "contract killings" for the purpose of aggravating sentence requires reliable evidence that a payment was made or promised for the killings; insufficient or unreliable evidence on that point will not support the characterisation.

  • Under the principle in R v Olbrich, a sentencing court can only take disputed facts into account on sentence if those facts are established to the requisite standard: beyond reasonable doubt for facts adverse to the offender, or on the balance of probabilities for facts in the offender's favour.

  • Where the evidence does not meaningfully distinguish the culpability of co-offenders in a joint criminal enterprise, parity principles support the imposition of equivalent sentences across those offenders.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A(2)(e), 21A(2)(j), 21A(2)(n) and 28(4)

Cases:
- R v Isaacs (1997) 41 NSWLR 374
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- GAS v R (2004) 217 CLR 198; [2004] HCA 22