R v Ng

Facts on Sentence

1. The parties have provided the Court with assistance by reaching agreement as to a number of facts leading to and surrounding the offending. The facts are in my view consistent with the evidence as it was led before the jury and it is likely that the facts as found by the jury are reflected by the agreed facts provided by the parties.
2. In February 2014 the complainant started running a meat delivery business using a white Toyota Hiace van. In June 2015 the complainant started delivering meat to an address on Victoria Road in Rydalmere. He usually made his deliveries there on a Monday and Thursday between 11 and 12. Access to the shop storeroom was from a dead end laneway off Pine Street which is parallel to Victoria Road. The laneway provided access to the back of the businesses including the Yue Fong Chinese Restaurant. A CCTV camera was attached to the back of a building at 400 Victoria Road (the laneway camera). There was also a CCTV camera operating on a commercial premises at a nearby roundabout at the intersection of Park Road and Pine Street (the roundabout camera).
3. At 10.55am on Monday 24 August 2015 the offender was driving a blue Holden Commodore in Rydalmere. That car had been rented by his mother. In the front passenger seat was the co-offender. The offender drove north along Park Road turning right into Pine Street at the roundabout and driving east along Pine Street. He then performed a u-turn and returned to a roundabout at Park Road, performing a 180 degree turn and again travelled east on Pine Street. He then did a further u-turn passing the entrance to the laneway and stopped at the southern kerb. At this time the complainant was driving his Hiace van making a delivery.
4. At about 11am a white van that was not driven by the complainant is seen to turn into Pine Street. The van then turned off Pine Street. In the time between the offender stopping the Commodore and before the white van entered the laneway the co-offender exited the Commodore. The van drove past the range of the laneway camera. As this occurred the offender drove the Commodore to the laneway entrance and parked at the southern kerb with the left indicator on.
5. After about 30 seconds the co-offender walked west on the southern footpath on Pine Street. He was wearing a yellow fluro high visibility shirt, grey trousers, grey cap, sunglasses and had a dark bag with a dark shoulder strap over his left shoulder. Moments later the Commodore pulled away from the kerb, the co-offender walked up the laneway and passed the range of the laneway camera.
6. Soon afterwards the co-offender appeared in the footage from the roundabout camera. He walked along the building on the corner of Pine Street and Park Road, paused at the western corner of the building and slowly walked back to the southern footpath on Pine Street continuing east until he was beyond the range of the camera at about 11.05.
7. At approximately 11.40am the complainant drove his van north on Park Road, turned right onto Pine Street at the Park Road roundabout, drove east along Pine Street and turned right into the laneway. At the same time the complainant's van first appeared on the laneway camera footage. The co-offender exited the blue Commodore dressed as before and carrying a dark bag over his shoulder as before. He immediately walked west on the southern footpath towards the laneway. The complainant parked his van just beyond the range of the laneway camera. After making a phone call he exited the van, opened the sliding door and took out a trolley.
8. The offender walked up the laneway and passed the laneway camera - that is the co-offender. About ten seconds later the co-offender walked back into view of the laneway camera and walked into an adjacent car park until out of camera range. About 30 seconds later the co-offender returned into view coming from the car park. He walked west down the laneway until out of range.
9. The co-offender approached the complainant who was still near his van. The co-offender then produced a wooden handled hammer. He swung the hammer at the complainant's head and hit his left cheek. The complainant whilst stunned and afraid grabbed the co-offender and struggled. The co-offender then hit the complainant's left knee two or three times with the hammer and also struck the back of the victim's head a number of times. During the attack the handle of the hammer snapped.
10. The co-offender then fled without taking anything, leaving the hammer and his bag at the scene. He ran back towards the Commodore. About 30 seconds later the co-offender moved back into camera view and ran out of the laneway. The complainant followed slowly holding his head. The co-offender exited the laneway and ran east on Pine Street. The complainant limped down the laneway and pointed towards the co-offender. Some people came to help the complainant.
11. The offender drove the Commodore west on Pine Street past the laneway. He turned right around the Park Road roundabout back onto Pine Street past the laneway and he was seen to stop further down the street to let the co-offender into the vehicle. Mr Tinirau, a passenger in a passing taxi saw the co-offender run and enter the Commodore before it drove away. Mr Tinirau wrote down the registration on his left hand as being CA 08 OO. Mr Tinirau stated that the Commodore drove past the wounded complainant on the way to collect the co-offender.
12. Mr Tinirau phoned triple-0 and police and ambulance attended. The complainant was taken to hospital where he was examined and treated. I will return in a moment to the injuries which he suffered. The police established a crime scene and seized a number of items including the bag and the hammer previously referred to.
13. That night at about 10.44pm the offender went to Capital Square 7Eleven. CCTV footage from there showed that he wore a grey Champion hoodie and dark trousers. The offender purchased an Optus mobile phone recharge voucher. Footage also shows the Commodore parked on George Street at this time.
14. At about 10.51pm that night the offender met with the co-offender outside the K1 Karaoke Bar in Haymarket where the co-offender worked as a security guard. They spoke there for several minutes.
15. On Tuesday 25 August 2015 police determined the blue Holden Commodore registration number previously referred to with one error in transcription in relation to a single digit was registered to a car hire company. Records show that it was leased by the offender's mother on 23 June 2015. Police went to the mother's home at Tunbridge Street in Mascot and saw the Commodore parked in the driveway. Police spoke with the mother who gave her son's mobile number referred to in the statement of agreed facts. The offender's mother consented to police searching the Commodore and gave them the key to do so. Police then examined the Commodore and seized a number of items referred to in the agreed facts. Significantly that included a number of plastic bottles. A DNA profile matching that of the offender was identified on the car steering wheel and an orange juice bottle, on a Gatorade bottle and on the Champion brand hooded jumper. A DNA profile matching that of the co-offender was identified on a Mountain Spring water bottle.
16. On 19 September 2015 police went to the karaoke bar and spoke with the co-offender. On 15 December 2015 police went back to the Tunbridge Street address at which time they saw the blue Commodore arrive. The car was driven by the offender with his mother as the front seat passenger.
17. Police issued a form of demand on the offender to identify the occupants of that car on 24 August 2015. In reported conversation the offender admitted he was the driver that day. He told the police that he had been looking for a fortune teller for his mum. He said that he got lost and a man flagged him down. He stopped and agreed to give the man a lift for $100. At this point police cautioned the offender.
18. At the trial before the jury the Crown relied upon that statement made by the offender to the police on that occasion as constituting a lie. Given the guilty verdict it seems fair to conclude that the jury accepted as a fact that the offender lied to the police on that occasion.
19. The offender then repeated his account and said that the unknown man directed him to near the M4. There he dropped off the man and left the area. The offender denied knowing the man or having spoken with him since giving him a lift. He also denied any knowledge of the offence. The offender told police that his mobile number was as stated in the agreed facts ending with the digits 334.
20. As to the matters on the s166 certificate, on 21 January 2016 police executed a search warrant at the co-offender's residence and at the offender's residence at the previously referred to address. At that time the offender was arrested and taken to Mascot Police Station. His mother remained at the premises during the search during which the police found and seized 0.31 grams of methylamphetamine and an extendable baton. More than one phone was also located. An examination of the extendable baton identified a DNA profile matching that of the offender on the tip of the handle. The extendable baton is a prohibited weapon within the meaning of the Act previously referred to.
21. The offender participated in an ERISP admitting that he had a prepaid Optus mobile phone ending in the digits 918 associated with his white Samsung phone. He declined to make any comment in relation to the offence but he did identify himself in a still from the CCTV footage from outside the karaoke bar on the evening of 24 August 2015. The offender said that the man he was speaking to was a security guard but he did not know his name.
22. On the same day police conducted a search of the co-offender's residence in Croydon. He was not present. Police found and seized a white LG mobile phone, black sunglasses, a silver Motorola mobile phone, a black Apple iPhone, a pair of dark trousers and a fluro yellow high visibility top. That evening the co-offender went to Granville Police Station. Following arrest he was taken to Parramatta Police Station where he participated in an ERISP in which he denied committing the offences. I note that subsequently the co-offender pleaded guilty to relevant charges and has been sentenced.
23. Also before the jury was a list of text messages passing between the offender and the co-offender. I do not intend to read all of the text messages except to note that they commence relevantly at 11.07pm on 15 August 2015 and end relevantly on Monday 24 August 2015 at 8.50pm. It is clear from the messages that an arrangement was made between the offender and co-offender to meet on at least two occasions. On the first occasion the meeting was cancelled due to the illness of I infer the person to whom they were going to meet. On the second occasion the meeting took place on Sunday 23 August 2015 at 4.43pm a message was sent by the co-offender to the offender confirming that the offender pick up the co-offender at about 9 to 9.30 the next morning. On Monday 24 August 2015 there were further text messages regarding the meeting to take place that day between the offender and the co-offender and it seems that they met when the offender drove to the co-offender's premises arriving at about 10.33am that day.
24. The other relevant aspect of the text messages is that they demonstrate that the offender was in need of money and indeed being hounded by a third person for money. In the end the co-offender agreed to withdraw $250 from his account and pay it to the offender. That was the purpose of the meeting at the karaoke bar at about 10.51pm on the day of the offending.
25. Also relevant to the consideration of an appropriate sentence is the nature and extent of injury suffered by the victim. In that regard I have been provided with a statement by the victim which is dated 7 February 2017. At that time he was 54 years of age. He describes the attack as being sudden and happening very quickly causing him initially to feel dizzy. He recorded that due to the offence he suffered two injuries, one to the left side of his face and to his left knee. A bone in his face was fractured and he is left with a lasting scar on his face. The second injury to the knee resulted in swelling and bruising. The victim, that is the complainant, was off work for some time as a consequence of his physical injuries.
26. His statement also refers to the psychological effects of the unprovoked attack and it is hardly surprising that he notes that he is fearful and concerned about being out in public. In any event the Court even without the statement could readily infer that a person in the position of the complainant would have suffered as a consequence of the attack.
27. In terms of the approach to fact finding which a sentencing Judge must undertake following a guilty verdict by a jury, I am guided by the principals outlined by the New South Wales Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374. I do not intend to refer to all of the principles set out at pages 377 to 378 of the NSWLR. However, it does identify a number of constraints which are placed upon a sentencing Judge in determining the facts upon which a jury verdict was determined.
28. The primary constraint upon the power and duty of a decision making refer to above is that the view of the facts adopted by the Judge for purposes of sentencing must be consistent with the verdicts by the jury. A sentence constraint is that the finding of facts may against an offender by a sentencing Judge must be arrived at beyond reasonable doubt.
29. Next is observed by the Court that there is no general requirement that a sentencing Judge must sentence an offender upon the basis of the view of the facts consistent with the verdict which is the most favourable for the offender. However the practical effect of the last mentioned constraint in a given case may be that because the Judge is required to resolve any reasonable doubt in favour of the accused, then the Judge will be obliged for that reason to sentence upon a view of the facts which is most favourable to the offender. That is the approach which I intend to adopt in this case.
30. I have reviewed the addresses by the Crown and Counsel for the offender to the jury together with my summing up to the jury and this matter was left to the jury on two bases.

Accessorial Liability

1. First, that there was a joint criminal enterprise between the offender and the co-offender by which they entered into an understanding or arrangement amounting to an agreement to commit the crime.
2. The second case that was left to the jury was that there was extended common purpose. And in summing up to the jury it was stated that: "It may be that in carrying out the joint criminal enterprise whatever that might be one of the participants commits an additional offence that was not the crime that they agreed to commit but was one that at least one or some of the other participants foresaw might be committed. This is the extension or extended common purpose. In such a case not only would each of those participants be guilty of the offence that they had agreed to commit, but those participants who foresaw the possibility of the commission of the additional offence would also be guilty of the additional offence."
3. I have approached the sentencing in this case on the basis that the jury found the offender guilty on the basis of extended common purpose. I further note the Crown in leading the case to the jury, and indeed opening the case initially to the jury, put it on the basis that there was an agreement, understanding or arrangement between the offender and the co-offender to assault or intimidate the victim. And as a result of the guilty finding I find that the offender foresaw the possibility of the commission of the additional offence and proceeded nonetheless. That is the offence of wounding with the intent of causing grievous bodily harm.
4. Whilst accessorial liability is a curious legal concept in many respects it is of course well recognised and in considering the question of extended joint legal enterprise I have had careful regard to the decision of Miller v The Queen [2016] HCA 30.

Objective Seriousness

1. It was submitted on behalf of the offender and I accept that his culpability is simply less than that of his co-offender. The offending itself is obviously objectively serious. Having regard to the offender's participation in the offending I find that his conduct falls at the low range of seriousness for offences of this type.
2. I have also turned my mind to the aggravating and mitigating factors which are available pursuant to the Sentencing Act and about which counsel have addressed. I am mindful that the offence involved the use of actual violence albeit in this case by the co-offender. I also am mindful the offence involved the actual use of a weapon being a hammer, again albeit used by the co-offender. I have had regard to the offender's prior convictions which are fairly minor in nature and to which I will return in a moment. I have taken into account the injury, the emotional harm and the loss and damage caused to the complainant.
3. I have also had regard to the fact that the offence was committed whilst the offender was on conditional liberty in relation to an offence. That is, he was on a s10(1)(b) bond which commenced on 9 April 2014 and would have expired 8 April 2016.
4. It is also plain from the messaging between the offender and the co-offender that there was an element of planning about the event. It is difficult to be precise about the extent and the nature of the planning except I find that the jury must have been satisfied beyond reasonable doubt that the offender and the co-offender arranged or agreed to meet and travel to Rydalmere in order to threaten, assault or intimidate the complainant.
5. The Crown submitted that the offence was committed for financial gain. Whilst that can be in certain cases an aggravating factor, I am not satisfied that this is one such case. The possibility of financial gain arises only by inference from the text messages between the offender and the co-offender. And whilst there is reference to money in the text messaging between the offender and co-offender and indeed the payment of money by the co-offender to the offender, I am not satisfied beyond reasonable doubt that financial gain was the reason for the commission of the offence so as to aggravate the degree of the offending.
6. In terms of mitigating factors and bearing in mind these matters need only be established on the balance of probabilities, I find that the offender is unlikely to re-offend. I consider that he has good prospects of rehabilitation. I note that he has shown some remorse in some of the subjective material that has been provided to the Court to which I will refer in a moment. The remorse of course comes by way of hearsay evidence provided by the offender to the authors of the reports relied upon at the sentence hearing and for that reason will be approached with some caution.

Subjective Case

1. In terms of the subjective circumstances, the offender is now 32 years of age. There is no doubting that his childhood was traumatic. Whilst he enjoyed a loving relationship with both parents, his father died as a result of an accidental self-inflicted gunshot wound to the head, following a threat to shoot himself being unaware of the fact that the gun was loaded with ammunition. According to the report by Dr Dayalan the offender's behaviour changed after that traumatic incident. He became withdrawn and his academic performance declined. This is also coupled with negative experiences in which peers made rude comments about his father's death provoking fights.
2. The offender's employment history is reasonably solid having worked in sales and customer service for a number of years prior to his employment as an RSA marshal. His longest period of employment appears to have been for about five years at a call centre which ended when the call centre closed down.
3. On 16 April 2018 the offender was assessed by Dr Dayalan, forensic psychiatrist. He prepared a report dated 20 April 2018. In that report he provided the background material previously referred to which was provided to him by way of history by the offender. In relation to the actual offence for which he is to be sentenced the offender told the doctor that he had previously loaned money to his friend who is the co-accused. He had requested for his money back due to financial circumstances. And his friend, that is the co-offender, suggested that the offender drive him to a place where he would be able to collect some money and give it to the offender. The offender clarified that his friend did not have a driving licence so he had agreed to drive him.
4. The psychiatrist recorded that the offender said "I feel sorry for the victim. If I knew what my friend was going to do I wouldn't have driven. I don't wish for that to happen to anyone." Whilst those remarks are obviously demonstrative of remorse and contrition, they are of course untested having been provided by way of history to the psychiatrist.
5. The offender's medical history is generally unremarkable. Whilst there is no doubt that he was affected by the traumatic event involving his father, Dr Dayalan said that there was some features of post-traumatic stress disorder but that the extent of the symptoms reported would not warrant a diagnosis of PTSD. In any event there is no suggestion that any such condition was related to the offending in question.
6. In terms of re-offending Dr Dayalan considered that the offender had a favourable prognosis and presented as a low risk of violent offending in the future. Dr Dayalan noted however that it is pertinent that he refrains from socialising with anti-social peers and his recent experience is likely to serve as a deterrent.
7. I have also had regard to a Pre-Sentence Report by Sylvia Johnson dated 22 May 2018. Ms Johnson spoke with the offender, the offender's mother and other persons at the correctional facility where the offender was located. It was noted that he had not presented any management concerns so far as Corrective Services were concerned in the period which he has spent in custody to date.
8. Again the Pre-Sentence Report has a very similar history to that which is referred to in the report of the psychiatrist. In terms of substance abuse it is noted by Ms Johnson that the offender reported that he commenced using illicit drugs when he was 14 years of age and he described himself as a recreational drug user maintaining that he has not used any illicit substance for over 12 months. There was also no issue with alcohol. In assessing the offender's attitude to offending Ms Johnson noted that the offender denied any involvement in assaulting the victim. It is plain from the facts as found and the evidence as presented that that is an accurate statement.
9. Perhaps contrary to my earlier finding regarding financial gain, the offender described the offence to Ms Johnson as being "somewhat financially motivated as he wanted to recoup money owed to him by his co-offender." Whilst I accept that the offender made that statement to the author of the Pre-Sentence Report, I do not consider that that rises to the level which would give rise to aggravation of the offending conduct, particularly as the money in question was money which the offender had previously paid to the co-offender. In the course of his discussions with Ms Johnson the offender expressed empathy for the victim. She also assessed the offender as being at a low risk of re-offending.
10. The only other source of subjective material comes from the evidence and the affidavit of the offender's mother. She gave evidence before the Court on 25 May 2018 during the course of the sentence hearing. She presented as an impressive witness who was obviously concerned for the welfare of her son. The fact that the offender has been in custody since the jury returned with a guilty verdict has caused considerable difficulties within the family unit. The offender's elderly grandmother has not been made aware of his circumstances and is regularly asking us for his whereabouts. In any event I have given careful consideration to both the affidavit and the evidence of Irene Ng and have taken that into account in assessing the subjective circumstances relevant to the offender.

Good Character

1. In terms of the offender's prior character, whilst that is a matter to be taken into account of course, the only factors mitigating against that are the minor prior convictions which were treated by way of bonds and/or fines. The good character of an offender is of course a matter which ordinarily may be taken into account in mitigation of penalty. I am not satisfied that the history of offending such as it is, is a matter which aggravates the present offending so as to give rise to a harsher sentence.
2. In the matter of R v McNaughton (2006) 66 NSWLR 566 the New South Wales Court of Criminal Appeal sat with a bench of five in considering the approach to be adopted to the record of previous convictions and how it related to the processing exercise and the overall concept of proportionality. Whilst I will not recite the seven factors to which the Court had regard as established principals in that respect, I confirm that I have considered those matters in determining the appropriate sentence in this case.
3. I do note however that the offending in the past has not been particularly serious. In 2001 the offender was convicted of common assault, in 2001 robbery in company, in 2003 drive a vehicle recklessly, in 2004 possessing a false driver's licence and in 2012 the offence previously referred to, possessing a prohibited drug.

Remorse

1. The question of remorse of course looms large particularly in situations where the source of that evidence is not provided directly by the offender. The evidence must of course be assessed in context and I accept that the offender demonstrated remorse to the psychiatrist and the author of the pre-sentence report during the course of his interview with them. I also accept that his mother's evidence that her son is remorseful. It is a difficult exercise however to determine the degree to which any leniency ought to be extended to the offender in circumstances where the source of the evidence as to remorse is second hand.

Rehabilitation and Re-Offending

1. In terms of rehabilitation I consider them to be positive. In terms of re-offending I accept the opinion of Ms Johnson that they are low, which of course reduces the need for specific deterrents.

General Principles

1. In coming to a view as to the appropriate sentence of course I have had regard to the general principals set out in s3A of the Crimes (Sentencing Procedure) Act which are briefly as follows: punishment, deterrenence, protection, rehabilitation, accountability, denunciation and recognition of the harm done to the victim.
2. For reasons previously mentioned I do not consider that deterrence is a significant factor in sentencing this offender. I also consider that his rehabilitation prospects as stated are positive. He must however be held accountable for his conduct and also be adequately punished for the offence. The sentence must also represent a denunciation of the conduct of the offender.

Proportionality

1. I have also taken into account the legal concept of proportionality which finds a statutory expression in s3A of the Act; that is to ensure that an offender is adequately punished. The principal of proportionality requires that a sentence should neither exceed nor be less than the gravity of the crime having regards to the objective circumstances. In sentencing there must be reasonable proportionality between the sentence and the circumstances of the crime. They of course will vary from case to case and offender to offender.

Parity

1. One other issue that does require specific consideration in this case is the question of parity. The co-offender was sentenced on 10 July 2017 by Judge Sides QC. He was sentenced after a discount of 25% for an early guilty plea to a period of imprisonment of six years nine months with a non-parole period of four years. Of course as stated that is after the significant discount of 25%.
2. I recall it was submitted by the Crown on the last occasion that the equivalence of that sentence adjusting it for the guilty plea is in the order of nine years. In any event it is clear from the respective culpabilities and participation of the two offenders that this offender must not be sentenced to a term of imprisonment which is excessive in that it would cause him to feel a sense of grievance. Similarly the co-offender ought not feel a sense of grievance by reason of the sentence to be imposed on the co-offender who by the jury has been found guilty of the same charge.
3. Counsel for the offender submitted on the last occasion that the objective criminality of the offender or the offender's conduct is lower than that of his co-offender. I without hesitation accept that submission. I note that in considering the appropriate sentence for the co-offender the sentencing Judge had regard to the fact that the co-offender had no prior convictions which permitted the Court to extend him the benefit of prior good character. The sentencing Judge found that the offence was clearly premeditated and involved another individual namely this offender.
4. The Court on that occasion as now was satisfied that the complainant was left with permanent scaring as a consequence of the attack and suffered physical and emotional disabilities as a consequence. As is the case here, the sentencing Judge in the matter of the co-offender whilst finding that the offence was "obviously targeted" the motive for it and for his involvement in it remains unclear. The facts of this case do not permit me to make any specific findings as to the offender's motive or involvement in the offending other than that which I have referred to above.
5. In the matter involving the co-offender the Court took into account of course the objective factors effecting the relative seriousness of the offence and formed the view that the co-offender's offending was at the very end of the low range or in the middle range of seriousness as connoted by the standard non-parole period of seven years prescribed for offences under this provision. I find that the objective seriousness of the offending is less in relation to this offender and as previously stated at the low range. In any event in determining the appropriate sentence I have had close regard to the sentence imposed upon the co-offender so as to ensure parity between them.

Imprisonment

1. In order for the Court to impose a sentence of imprisonment it must be satisfied having regard to all possible alternatives and no sentence including non-custodial sentences other than imprisonment are appropriate. In this case the Crown contends that the threshold under s5 of the Act is met and that a term of imprisonment is warranted.
2. I find that after considering all sentencing alternatives imprisonment by way of full time custody is appropriate.

Statistics

1. I previously referred to the fact that counsel for the offender provided the Court with statistics in relation to sentences for offending of this type. The statistical population is just 52 cases. Of the 52 some 49 resulted in full time custody. A period of imprisonment ranged from 18 months up to 16 years with the majority seemingly in the range of four to five years.
2. Of course it is difficult to determine what degree of reliance one should place upon statistics of that nature without having knowledge of the particular circumstances of the offending. That is particularly so in circumstances such as this where the offence committed was accessorial in nature. Nevertheless the offender is to be sentenced for the offence charged and for which he has been found guilty by the jury.

Sentence

1. Taking into account the time spent in prison prior to today, the sentence will commence on 2 March 2018. I intend to impose a non-parole period of two years, nine months which would expire I believe on 1 December 2020. And a head sentence of four years.
2. Please stand sir. You are convicted of the offence on the indictment of which you have been found guilty by the jury. I impose a sentence upon you consisting of a non-parole period of two years and nine months commencing on 2 March 2018 and expiring on 1 December 2020. I also impose a head sentence of four years which would expire on 1 March 2022.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2019