Ng v R [2011] NSWCCA 227

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ng v R [2011] NSWCCA 227 Hearing dates: 6 September 2011 Decision date: 14 October 2011 Before: Bathurst CJ at 1 James J at 1 Johnson J at 1 Decision: Leave to appeal granted with respect to sentences imposed in the Supreme Court of New South Wales on 20 August 2003. Sentence imposed for the offence of aggravated armed robbery, being a sentence of imprisonment for a fixed term of seven years, commencing on 6 July 2001 and expiring on 5 July 2008, is confirmed. Sentence imposed for the offence of murder is quashed and, in its place, the Applicant is sentenced to imprisonment for a total term of 30 years, comprising a non-parole period of 22 years and six months commencing on 6 July 2002 and expiring on 5 January 2025, with a balance of term of seven years and six months commencing on 6 January 2025 and expiring on 5 July 2032. The earliest date upon which the Applicant will be eligible for release on parole is 6 January 2025. Catchwords: CRIMINAL LAW - sentence after trial - Applicant convicted of murder and aggravated armed robbery - application for extension of time to appeal against sentence - claim of denial of procedural fairness in sentencing process - ground established - claim of justifiable sense of grievance by reference to sentence imposed on co-offender - assessment of dangerousness of Applicant and co-offender - parity ground established - Applicant resentenced Legislation Cited: Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 Criminal Appeal Rules Cases Cited: Edwards v R [2009] NSWCCA 199 Darwiche v R [2011] NSWCCA 62 R v Teck Lee Lew [2004] NSWCCA 320 R v Lo [2003] NSWSC 582 R v Ng; R v Lew [2003] NSWSC 781 Baroudi v R [2007] NSWCCA 48 Button v R [2010] NSWCCA 264 R v Pham [2005] NSWCCA 94 R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 Weir v R [2011] NSWCCA 123 Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 GAS v The Queen [2004] HCA 22; 217 CLR 198 Ahmad v R [2006] NSWCCA 177 House v The King [1936] HCA 40; 55 CLR 499 R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 R v O'Donoghue (1988) 34 A Crim R 397 Fardon v Attorney General for the State of Queensland [2004] HCA 46; 223 CLR 575 R v Garforth (NSWCCA, 23 May 1994, unreported) Ali v R [2010] NSWCCA 35 Tatana v R [2006] NSWCCA 398 Youkhana v R [2011] NSWCCA 37 R v Swan [2006] NSWCCA 47 Gurney v R [2011] NSWCCA 48 Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 R v Li [2005] NSWCCA 154 Lewins v R [2007] NSWCCA 189 R v Wei Pan [2005] NSWCCA 114 England v R; Phanith v R [2009] NSWCCA 274 Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 Smale v R [2007] NSWCCA 328 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 R v Lett (NSWCCA, 27 March 1995, unreported) R v Villa [2005] NSWCCA 4 McGrath v R [2010] NSWCCA 48; 199 A Crim R 527 Hejazi v R [2009] NSWCCA 282 Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Ollis v R [2011] NSWCCA 155 R v Fernando [1999] NSWCCA 66 Texts Cited: --- Category: Principal judgment Parties: David Ng (Applicant) Regina (Respondent) Representation: Mr PR Boulten SC; Mr D Barrow (Applicant) Mr DU Arnott SC (Respondent) Australian Criminal Law Specialists Pty Limited (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2002/2357 Publication restriction: --- Decision under appeal Citation: R v Ng; R v Lew [2003] NSWSC 781 Date of Decision: 2003-08-20 00:00:00 Before: Adams J File Number(s): ---