The Remarks on Sentence
12In sentencing the applicant, Dunford J reviewed the evidence that had been given in the trial, and made detailed findings of fact. His factual findings were to the following effect.
13Mr John Newman was a member of the Australian Labor Party ("the ALP"), and the elected member of the Legislative Assembly of NSW for the seat of Cabramatta. The applicant was also a member of the ALP, and lived and worked in the Cabramatta electorate. He was active in local politics, and held the position of Deputy Mayor of the City of Fairfield Council (in which Cabramatta is located). He was the founder of a local institution known as the Mekong Club, and was its Honorary President. The Mekong Club operated for the benefit of the local Vietnamese community, of which the applicant was a member. He had greater political ambitions. [Precisely what those ambitions were is the subject of the second ground of the proposed appeal.]
14The applicant's political ambition, on the findings made by Dunford J, was to replace Mr Newman as the ALP endorsed candidate for the Legislative Assembly at the next election. He had, however, given an undertaking to the ALP "hierarchy" that he would not contest preselection for the seat while it was held by Mr Newman. Accordingly, it was necessary that Mr Newman be removed from the position. The applicant's selected method of achieving that result was to have Mr Newman killed.
15The applicant therefore took steps to arrange for Mr Newman's murder. He initially recruited two men, identified as "W1" and "W2", who were employees of the Mekong Club. Their task was to purchase appropriate firearms. This they did, purchasing a .22 rifle and a Beretta pistol. W2 was asked to identify a person who would be prepared to carry out the murder. This attempt failed, because of Mr Newman's high profile. W1 and W2 therefore took on the task and made three attempts on Mr Newman's life - one outside a restaurant, one at a greyhound club, and the third at Mr Newman's house. For various reasons, all these attempts failed. There were also other, somewhat farfetched, plans considered. W1 withdrew from the arrangement.
16W2, on the applicant's instruction, acquired a third weapon, a Ruger semi-automatic pistol, and, through a third person, arranged for another to kill Mr Newman. This plan failed when the proposed killer also withdrew, and the Ruger was lost. A fourth weapon, a .45 Magnum, was acquired. A silencer was fitted to the Beretta.
17On the evening of 5 September 1994 Mr Newman attended an ALP Branch meeting, and drove to his home, arriving there at about 9.30pm. He and his fiancée were in the driveway of their home, securing a tarpaulin over his car, when a man alighted from a nearby vehicle and fired four shots at Mr Newman with the Beretta. Two of the shots entered Mr Newman's chest and proved fatal. The gunman re-entered the car, which drove off at high speed with no headlights illuminated.
18The verdict of the jury established that it was satisfied beyond reasonable doubt that the applicant was the instigator of the murder. Dunford J found that, although the applicant did not discharge the gun, he was the principal offender (at [22]).
19His Honour said:
"15 I am satisfied to the criminal standard that Phuong Ngo's motive for the killing of John Newman was naked political ambition and impatience. He wanted to be the Legislative Assembly member for Cabramatta, but had given the Labor Party hierarchy an undertaking that he would not run for preselection whilst John Newman was the sitting member. He could not wait until the next general election due in 1999; and so he needed to remove John Newman as the sitting member in order that he could run in the preselection ballot which, on the numbers, he had a very good chance of winning. The method he chose was to have John Newman killed.
...
23 Not only is the deliberate, premeditated killing of another human being a most serious offence at any time, the criminality in the present case is greatly aggravated because it involved the killing of a member of Parliament for political ends. It therefore constituted an offence not only against the individual victim, but it was also a direct attack on our system of democratic representative government, and struck at the very fabric of our public institutions.
...
25 In particular our system of parliamentary elections and preselection of parliamentary candidates operates without physical violence or intimidation, and a clear message must be sent that there is no room in this country for killings, violence or intimidation as part of the political process."
20In reaching these conclusions, Dunford J noted and rejected an argument advanced on behalf of the applicant (who had not given evidence in either the trial or the sentencing proceedings) that the applicant's political ambition was, not a seat in the Legislative Assembly, but a seat in the Legislative Council, and that Mr Newman's continued hold on preselection for the Legislative Assembly seat was no inhibition to that ambition. If that were so, then the finding that the motive for murder was "naked political ambition and impatience" would not be available (so the argument went) and the motive for the murder may have been "no more than personal animosity arising from mudslinging at the [applicant] by [Mr Newman]": ROS [16]. In support of this contention reference was made to evidence that, on the day of the murder, the applicant had had lunch with the then State Secretary of the ALP, at which he had been told that he would be favourably considered for a Legislative Council seat.
21His Honour gave a number of reasons for rejecting that proposition:
(i) the applicant had previously contested the Legislative Assembly seat of Cabramatta as an Independent, before taking up membership of the ALP;
(ii) he was Councillor and Deputy Mayor of the Fairfield City Council which largely encompassed the Cabramatta electorate;
(iii) his "power base" was in Cabramatta, with its large Vietnamese and other Asian population;
(iv) in statements made on the day after the murder, and on 14 and 15 September 1994, the applicant indicated his wish to replace Mr Newman if preselection were held locally;
(v) the applicant had sufficient support, if a local ballot were to take place, to achieve preselection;
(vi) the applicant had, some months prior to the murder, told another person, a witness in the trial, that he wished to enter Parliament, to be "the leader of the area" and all that stood in his way was Mr Newman;
(vii) as a matter of logic, if the applicant's ambition had been election to the Legislative Council, there was no need to proceed with the murder of Mr Newman;
(viii) (perhaps somewhat inconsistently with (vii)) that, even if it were a Legislative Council seat that attracted the applicant's interest, he needed the support of the sitting Legislative Assembly member (Mr Newman) and he did not have that support.
22Dunford J then turned his attention to s 61(1) of the Sentencing Procedure Act. That section took effect on the commencement of the Sentencing Procedure Act, on 3 April 2000 - more than five years after the murder. It is set out below. There is no indication that any argument was directed to the proposition that, because s 61(1) was not in force at the time of the murder, it was inapplicable to the sentencing of the applicant.
23His Honour considered the mercifully small number of previous Australian cases in which a killing or other crime had been politically motivated, or committed against a public persona (R v Kocan [1966] 2 NSWR 565; R v Eastman (Supreme Court of ACT, Carruthers J, 10 November 1995, unreported)), together with others in which a life penalty was imposed or considered and rejected: R v Kalajzich (1997) 94 A Crim R 41; R v Harris [2000] NSWCCA 469; 50 NSWLR 409; R v Rose [1999] NSWCCA 327; R v Fernando [1999] NSWCCA 66. He expressed his conclusion as follows:
"32 In my opinion, the killing of a member of Parliament for political purposes, involving as it does an attack on our constitutional system of parliamentary democracy, and particularly when committed for personal political gain gives rise to such culpability that the 'community interest in retribution, punishment, community protection and deterrence' can only be met by the imposition of a life sentence.
33 These features are aggravated in the present case by the long period of planning and organisation which preceded the killing, and by the [applicant's] corruption of other persons such as W1, W2 and the persons who actually carried out the killing on his behalf." (italics in original)
24He then held that it was necessary, having regard to s 21(1) of the Sentencing Procedure Act, to consider whether there were any subjective features including prospects of rehabilitation such as to render a life sentence inappropriate, while bearing in mind that in some cases the culpability in the commission of the offence is so extreme that the subjective features should be disregarded. He accordingly set out the applicant's personal circumstances. The applicant was born in Vietnam in July 1958, and was 43 years of age at sentencing, 36 at the date of the murder. His parents were, in Vietnam, moderately successful, but the family circumstances changed in 1975 with the fall of Saigon. The applicant entered Australia as a refugee in 1982, at the age of 24, with his brother. He took on employment in a flyscreen company but became successful and eventually became the founder and President of the Mekong Club, and Deputy Mayor of Fairfield. He owned and published a Vietnamese newspaper.
25Dunford J accepted that the applicant had made significant contributions to the Cabramatta community, instancing that he had been instrumental in the establishment of a Fairfield Drug Intervention Centre. He also noted the applicant's conduct since being in custody; he described him as a "model prisoner", who assisted and encouraged young prisoners, especially Asian, to take advantage of such educational opportunities as were available to them. He then said:
42 I have taken all these matters into account but, for the reasons already given, I am satisfied that the level of culpability in the commission of the offence is so extreme that the subjective features must be disregarded and the community interest as defined in s 61(1) can only be adequately met by a sentence of life imprisonment."
26He acknowledged that the court has no power, where a life sentence is imposed, to fix a non-parole period (see Harris supra, at [122]), and said that, although satisfied that the applicant should remain under sentence for the remainder of his life, he did not believe that it was necessary that he remain in custody for the whole of that time and said that if he had the power to do so he would fix a non-parole period "but it would be a very long one".