Ngo v R [2013] NSWCCA 142

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ngo v R [2013] NSWCCA 142 Hearing dates: 1 February 2013 Decision date: 13 June 2013 Before: Simpson J at [1]; Johnson J at [92]; Grove AJ at [93] Decision: The application for an extension of time in which to file an application for leave to appeal is refused Catchwords: CRIMINAL LAW - appeal - application for extension of time to file application - leave to appeal against sentence of life imprisonment - whether sentencing judge erred in sentencing applicant pursuant to provisions of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred in finding of fact - political motive for murder - whether sentencing judge erred in failing to take into account subjective factors relevant to the applicant - no error found - application for extension of time refused Legislation Cited: Crimes (Amendment) Act 1955 Crimes (Appeal and Review) Act 2001 Crimes (Life Sentences) Amendment Act 1989 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Crimes Act 1900 Crimes Amendment (Mandatory Life Sentences) Act 1996 Crimes Legislation Amendment (Sentencing) Act 1999 Criminal Appeal Act 1912 Criminal Appeal Rules Sentencing Act 1989 Statute Law (Miscellaneous Provisions) Act 2001 Cases Cited: Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 Edwards v R [2009] NSWCCA 199 Ngo v The Queen [2004] HCATrans 185. Phuong Canh Ngo - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2010] NSWSC 981 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 R v Debs [2012] NSWSC 119 R v Eastman (Supreme Court of ACT, Carruthers J, 10 November 1995, unreported) R v Fernando [1999] NSWCCA 66 R v Garforth (NSWCCA, 23 May 1994, unreported) R v Gilham [2009] NSWSC 138 R v Harris [2000] NSWCCA 469; 50 NSWLR 409 R v Harris [2000] NSWSC 285; 111 A Crim R 415 R v Kalajzich (1997) 94 A Crim R 41 R v Kocan [1966] 2 NSWR 565 R v Lewis (Supreme Court of New South Wales, Ireland J, 9 June 2000, unreported) R v Lewis [2001] NSWCCA 448 R v Maclay (1990) 19 NSWLR 112 R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Ngo [2003] NSWCCA 82; 57 NSWLR 55 R v Phuong Canh Ngo [2001] NSWSC 1021; 125 A Crim R 495 R v Rose [1999] NSWCCA 327 Stumbles v R [2006] NSWCCA 418 Texts Cited: New South Wales Law Reform Commission, Sentencing - Report 79 (December 1996) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 May 1989 at 7905 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2324 New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 December 1989 at 14528 Category: Principal judgment Parties: Phuong Canh Ngo (Applicant) Regina (Respondent) Representation: Counsel: J Renwick SC/D Tynan (Applicant) J Dwyer (Respondent) Solicitors: Jackson Lalic Lawyers (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 1998/2811 Decision under appeal Jurisdiction: 9111 Citation: R v Ngo [2001] NSWSC 1021 Date of Decision: 2001-11-14 00:00:00 Before: Dunford J File Number(s): 70086/98

Judgment 1SIMPSON J: By notice of application filed on 2 August 2012, the applicant seeks an extension of time to file an application, and, if an extension is granted, leave to appeal against a sentence of life imprisonment imposed upon him on 14 November 2001 (see R v Phuong Canh Ngo [2001] NSWSC 1021; 125 A Crim R 495, per Dunford J) following his conviction after a jury trial on a count of murder. 2It will be seen that the delay in making the application has been very lengthy. The Crown opposes the grant of an extension of time. It will be necessary to refer to the circumstances in which that delay occurred.

Background 3On 5 September 1994 Mr John Newman was shot dead in the driveway of his home in Cabramatta, Sydney. Mr Newman had been an elected member of the Legislative Assembly of the Parliament of NSW. On 13 March 1998 the applicant was arrested and charged with Mr Newman's murder. A trial in the Supreme Court commenced in June 1999, but, for reasons it is unnecessary to explore, aborted. A second trial commenced in February 2000, but, in May, the jury was unable to agree on a verdict and was discharged. A third trial, before Dunford J and a jury, began on 7 March 2001. This trial resulted in the conviction of the applicant by jury verdict delivered on 29 June 2001. Two co-accused who stood trial with the applicant were acquitted. 4On 25 July 2001 (that is, before sentencing) the applicant filed a notice of appeal to this Court against the conviction. Thirteen grounds of appeal were identified. On 14 November 2001 Dunford J sentenced the applicant to imprisonment for life. In doing so, he declared that he was satisfied that the level of the applicant's culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met through the imposition of a life sentence. This language reflects the test laid down in s 61(1) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). Dunford J clearly intended to sentence the applicant having regard to the provisions of that section. Whether that course was legitimately available to him is a principal issue in the present application. 5Dunford J found that the murder of Mr Newman had been committed by another at the instigation and direction of the applicant, and that the applicant's motive in securing the murder was "naked political ambition and impatience". Whether that finding can be sustained is the subject of one of the proposed grounds of appeal. 6The applicant has never previously filed a formal application for leave to appeal against sentence. However, on 5 August 2002, on his behalf, an amended notice of appeal against conviction was filed, pleading 17 grounds. The ground numbered 17 raised the issue of what was said to be the excessive severity of the sentence. 7Both the applicant and the Crown filed written submissions in respect of the appeal against conviction and in respect of what can be treated (for present purposes) as an application for leave to appeal against sentence. On 7 November 2002, again on the applicant's behalf, a notice of abandonment of the proposed appeal against sentence, signed by his solicitor, was filed. (It appears that, by that date, r 3 of the Criminal Appeal Rules required applicants for leave to appeal personally to sign notices of abandonment. The non-compliance with this rule is of no present materiality.) 8On 3 April 2003 the applicant's appeal against conviction was dismissed: R v Ngo [2003] NSWCCA 82; 57 NSWLR 55. The applicant sought special leave to appeal to the High Court of Australia. On 28 May 2004 special leave was refused: Ngo v The Queen [2004] HCATrans 185. 9In 2008 and 2009, at the direction of the Chief Justice, and pursuant to Pt 7 of the Crimes (Appeal and Review) Act 2001, an Inquiry into the applicant's conviction was conducted by Mr David Patten ("the Patten Inquiry"). On 14 April 2009 Mr Patten reported that he found nothing to cast doubt upon, or raise a sense of unease or disquiet in respect of, the applicant's conviction. 10On 15 February 2010 a second application, under the same legislation, for a direction for an Inquiry into the conviction was made (by a person other than the applicant). In June 2010, the applicant himself sought a direction that a further Inquiry be held. On 15 October 2010 McClellan CJ at CL refused the applications: Phuong Canh Ngo - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2010] NSWSC 981. 11On 2 August 2012 the applicant filed the present applications, for extension of time, and for leave to appeal against the sentence. He pleads three grounds for the proposed appeal, formulated as follows: "1. Dunford J erred in sentencing the applicant pursuant to the provisions of s 61(1) of the Crimes (Sentencing Procedure) Act 1999. 2. Alternatively, Dunford J erred in the application of s 61 of the Crimes (Sentencing Procedure) Act 1999 by concluding that the applicant had a political motive for killing Mr Newman. 3. Alternatively, Dunford J erred in failing to take into account subjective factors relevant to the applicant."

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".

Ground 1: did the Sentencing Procedure Act, s 61(1), apply to the offence? 27Section 61(1), appearing in the Sentencing Procedure Act under the heading "Mandatory life sentences for certain offences" is in the following terms: "(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." Sub-sections (2), (4), (5) and (7) of s 61 are directed to the imposition of life sentences in respect of certain drug offences. Sub-section (3) preserves, in relation to sub-s (1), the operation of s 21(1) of the Sentencing Procedure Act (which provides that, if, by any provision of an Act, an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term). Sub-section (6) excludes from the operation of the section offenders who were under 18 years of age at the time of the commission of their offences. 28The Sentencing Procedure Act, including s 61 in its present form, received Royal Assent on 8 December 1999 and took effect as from 3 April 2000. Thus, s 61(1) was not in force as at 5 September 1994, the date of Mr Newman's murder. 29The first thing to observe about s 61 is that, on analysis, it is difficult to conclude other than that sub-s (1) is devoid of any content. Purportedly, in substance, it creates an obligation in a court to impose a sentence of life imprisonment on a person convicted of murder - but only in the circumstance specified in the balance of the sub-section. That circumstance is the satisfaction of the court that the level of culpability of the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a sentence of imprisonment for life. Given that the fundamental obligation of all sentencing judges is to impose a sentence that is appropriate in all the circumstances, taking into account the objective gravity of the crime, and the personal circumstances of the offender, where a judge reaches the satisfaction specified - that the offender's culpability in the commission of the offence is so extreme that stated community interests can only be met by the imposition of a life sentence - there remains no room for the imposition of a sentence other than life imprisonment. This was the view taken by Hunt CJ at CL in Kalajzich, and by Bell J (at first instance) in R v Harris [2000] NSWSC 285; 111 A Crim R 415, endorsed by this Court on appeal at [88]. 30The second thing to observe about s 61 is that it is difficult to reconcile the mandatory terms of sub-s (1) with the preservation, in sub-s (3), of s 21(1). In Harris, and again in R v Merritt [2004] NSWCCA 19; 59 NSWLR 557, Wood CJ at CL described this as a "tension". 31Dunford J, having reached the requisite level of satisfaction, was, whether by reason of s 61(1) or otherwise, bound to impose the sentence that he did. 32On behalf of the applicant, however, a contrary argument was advanced. That argument calls for consideration, first, whether s 61(1) did apply, given that it was not in effect at the date of the murder. That, in turn, brings me to consideration of historical relevant legislation. I will annex to these reasons the full text of the relevant provisions. 33On the consolidation of the criminal law that became the Crimes Act 1900, s 19 provided that the crime of murder was punishable by death. That remained the case until 1955. By the Crimes (Amendment) Act 1955 ("the 1955 Amendment Act"), the Parliament of NSW abolished the death penalty. Thereafter, by s 19 of the Crimes Act, the penalty for murder was penal servitude for life. 34At that time, s 442 of the Crimes Act provided that, where an offender was liable to penal servitude for life, or for any other fixed term, the sentencing judge may nevertheless impose a lesser sentence. However, the 1955 Amendment Act further amended s 19 by excluding the operation of s 442 in respect of offences of murder (s 5(b)). The effect of that exclusion was that convictions for murder resulted in mandatory sentences of penal servitude for life. 35However, as a matter of practice, few offenders actually served out the whole of their sentences in custody. A system of executive licences was in operation. This was spelled out by the Honourable E P Pickering, Minister for Police and Emergency Services, in 1989, introducing the Crimes (Life Sentences) Amendment Bill: New South Wales Legislative Council, Parliamentary Debates (Hansard), 7 December 1989 at 14528 and following. 36Also relevant in this context is the Sentencing Act 1989. The Sentencing Bill was put before the Legislative Assembly by the then Minister for Corrective Services, Mr Yabsley: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 10 May 1989 at 7905 and following. 37The Sentencing Act effected radical reform to pre-existing sentencing procedures - Mr Yabsley described it as "turn[ing] the sentencing process on its head". For present purposes, it is sufficient to note that the Sentencing Act introduced new procedures in sentencing. Relevantly for present purposes, by s 5 it required sentencing courts: first, to set a minimum term of imprisonment that the offender must serve, and, second, to set an additional term during which the offender might be released on parole. It further specified that the additional term was not to exceed one third of the minimum term, unless special circumstances justified that course. This was the first time that legislation had, with such specificity, regulated the sentencing process see, for more detail, R v Maclay (1990) 19 NSWLR 112, at p 120. The Sentencing Act took effect on 25 September 1989. 38When passed, the Crimes (Life Sentences) Amendment Bill became the Crimes (Life Sentences) Amendment Act 1989 ("the 1989 Act"), which commenced operation on 12 January 1990. Relevantly, it brought about the repeal of s 19 of the Crimes Act and its replacement by s 19A. Section 19A then provided as follows: "Punishment for murder 19A(1) A person who commits the crime of murder is liable to penal servitude for life. (2) A person sentenced to penal servitude for life for the crime of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 442 (which authorises the passing of a lesser sentence than penal servitude for life). (4) This section applies to murder committed before or after the commencement of this section. (5) However, this section does not apply where committal proceedings (or proceedings by way of ex officio indictment) for the murder were instituted against the convicted person before the commencement of this section. In such a case, section 19 as in force before that commencement continues to apply. (6) Nothing in this section affects the prerogative of mercy." 39Three things may be noted about the effect of the enactment of s 19A: * first, the maximum penalty for murder remained penal servitude for life; * second, by sub-s (3), removing the exclusion of the operation of s 442 in cases of murder, a court was empowered to impose a lesser penalty - that is, the penalty of penal servitude for life in cases of murder was no longer mandatory; * third, by sub-s (2), where a sentence of penal servitude for life was passed, the offender would serve the whole of that sentence in custody (unless the prerogative of mercy, preserved in sub-s (6), were to be exercised). Section 19A, remains, in substance, in that form. (It has been varied by the substitution, in 2000, of "imprisonment" for "penal servitude", and, also in 2000, in sub-s (3), the substitution of a reference to s 21(1) of the Sentencing Procedure Act for the reference to s 442 of the Crimes Act. The latter variation was effected by the Statute Law (Miscellaneous Provisions) Act 2001.) 40The 1989 Act also introduced s 431A into the Crimes Act. By sub-s (2) of that section, the penalty of penal servitude for life was restricted to crimes of murder and certain offences under the Drug Misuse and Trafficking Act 1985. By sub-s (3), where, but for that sub-section, no penalty would be provided for an offence that was formerly punishable by penal servitude for life, that offence was made punishable by penal servitude for 25 years. The intent of this section appears to have been to ensure that any legislation not specifically amended, that formerly provided a penalty of penal servitude for life, was encompassed. 41Section 431A is not relevant to the present issue. I mention it only because some reliance was placed upon it in the course of argument. 42The next relevant amendment was the Crimes Amendment (Mandatory Life Sentences) Act 1996, which took effect on 30 June 1996. By that Act, s 431B was introduced into the Crimes Act. Section 431B was the forerunner of s 61 of the Sentencing Procedure Act. Sub-sections (1), (2), (3), (4), (5), (6) and (8) of s 431 were in relevantly identical terms to the present sub-ss (1), (2), (3), (4), (5), (6) and (7) respectively of s 61. Accordingly, where a court was satisfied that the level of culpability in the offence was of the character described in sub-s (1), it was obliged, by reason of that section, to impose a sentence of imprisonment for life. It remained, in any case, the duty of a court that had reached that level of satisfaction, to impose such a sentence. However, s 431B(7) provided that the section did not apply to offences committed before the commencement of the section. There is, in s 61, no equivalent of s 431B(7). 43The language of s 431B(1) was modeled on the decision of this Court in R v Garforth (NSWCCA, 23 May 1994, unreported). In that case, the Court, constituted by Gleeson CJ, McInerney J and Mathews J, said: "There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can only be met through the imposition of the maximum penalty." 44With effect from 3 April 2000, the Sentencing Act was repealed and replaced by the Sentencing Procedure Act. The Sentencing Procedure Act resulted from a reference to the NSW Law Reform Commission concerning "the formulation of principles and guidelines for sentencing as well as the rationalisation and consolidation of current sentencing provisions" and related matters, following which the Law Reform Commission issued a report on sentencing (New South Wales Law Reform Commission, Sentencing - Report 79 (December 1996)). The long title of the Sentencing Procedure Act is: "An Act to consolidate and amend the law with respect to the sentencing of offenders; and for other purposes." 45In introducing the Sentencing Procedure Bill to the NSW Parliament, the Minister, Mr Debus, said: "The recommendations chiefly concern the mechanics of sentencing, streamlining and clarifying the existing sentencing law, and reforming those areas of the law that have been the subject of judicial complaint and some community concern ... A principal object of this bill is to amalgamate and re-enact provisions in [a number of Acts insofar as they concern sentencing, including the Sentencing Act]." (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2324) Section 431B of the Crimes Act was repealed, and substantially (with the important exception of sub-s (7)) re-enacted as s 61 of the Sentencing Procedure Act. That is an important difference between s 431B and s 61. 46The Sentencing Procedure Act adopted and confirmed the level of regulation of the sentencing process that had begun with the Sentencing Act. As initially passed, s 44(1) required the court first to set the term of the sentence, and then the non-parole period. It was amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, which took effect on 1 February 2003. Section 44 again requires a court first to set a non-parole period, being the minimum period for which the offender is to be held in custody, and, second, to specify a balance of term which, again, is not to exceed one third of the non-parole period unless special circumstances are found to justify that course. 47Cognate with the Sentencing Procedure Act was the Crimes Legislation Amendment (Sentencing) Act 1999, which, inter alia, repealed s 442 of the Crimes Act. The effect of s 442 was re-enacted in s 21(1) of the Sentencing Procedure Act, which provides: "If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term." 48It is convenient here to mention also s 19 of the Sentencing Procedure Act, which was, and is, in the following terms: "19 Effect of alterations in penalties (1) If an Act or statutory rule increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act or statutory rule increasing the penalty. (2) If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement. (3) In this section, a reference to a penalty includes a reference to a penalty that is expressed to be a maximum or minimum penalty." 49Because the enactment of the Sentencing Procedure Act coincided with the repeal of the Sentencing Act, certain transitional provisions were considered necessary. They were, however, limited. Clause 37 of Sch 2 appeared under the heading "General Saving" and provided as follows: "Subject to the regulations: (a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act may be continued and completed under the old legislation as if the [Sentencing Procedure Act] had not been enacted, and (b) subject to paragraph (a), anything done under a provision of the old legislation for which there is a corresponding provision in this Act (including anything arising under paragraph (a)) is taken to have been done under the corresponding provision of this Act." The "appointed day" was 3 April 2000. The "old legislation" included the Sentencing Act. 50That is, the Sentencing Procedure Act preserved anything begun before 3 April 2000 under a provision of the Sentencing Act for which there was a corresponding provision in the Sentencing Procedure Act. Otherwise, from 3 April 2000, the Sentencing Act was defunct. 51Another consequence of the passing of the Sentencing Procedure Act was the abolition of the pre-existing distinction between felonies and misdemeanours, and the abolition of the punishments of penal servitude, and imprisonment with hard or light labour. Thenceforth, custodial penalties (for adult offenders) are known simply as "imprisonment". Consequential amendments to, for example, s 19A of the Crimes Act were made. 52Notwithstanding this apparent plethora of legislation, the relevant statutory provisions in force as at 5 September 1994 were s 19A of the Crimes Act, and the Sentencing Act. The Sentencing Act was, in substance, procedural. By s 19A of the Crimes Act the applicant was liable, in respect of Mr Newman's murder, to a penalty of penal servitude for life, but, by reason of sub-s (3) and s 442, a fixed term could be imposed. However, by sub-s (2), if a sentence of penal servitude for life were imposed, then the applicant would, subject to executive clemency, be required to serve the whole of that sentence. 53On behalf of the applicant, it was argued that Dunford J was in error in sentencing the applicant "under the provisions of s 61(1)". The simple argument was that, as the section was not in force as at the date of the murder, it had no application. On its face, that is a persuasive argument. However, the Crown has advanced three discrete arguments to the contrary. The three arguments were: (i) The applicant was liable to be sentenced to imprisonment for life under s 19A and s 431A of the Crimes Act 54I have already expressed my view that s 431A is irrelevant. It is plain that the applicant was liable to a sentence of life imprisonment under s 19A(1). That that was so does nothing to advance the Crown's argument that he was also liable to a sentence of life imprisonment under the later enacted provisions of s 61(1). I would reject the Crown's first argument. (ii) Since 2000 this Court has consistently applied s 61(1), even in cases where the murder was committed prior to 3 April 2000 55The cases to which reference was made include: R v Lewis (Supreme Court of New South Wales, Ireland J, 9 June 2000, unreported); on appeal R v Lewis [2001] NSWCCA 448; R v Gilham [2009] NSWSC 138. In the latter case, Howie J accepted the joint position adopted by the parties, that, notwithstanding that the murders for which the offender was being sentenced occurred before the enactment of s 61(1), that section applied. He added that the sub-section in any event generally reproduced the approach taken at common law. 56A contrary approach is to be discerned in R v Debs [2012] NSWSC 119, which concerned a murder committed in 1995, well before the enactment of s 61(1). Again, the approach taken by the Court (R S Hulme J) resulted from the position adopted by the parties - in that case, the Crown accepted that s 61(1) had no application. 57Although I accept that a lengthy history of practice by judges of this Court can be a relevant pointer to statutory interpretation, its relevance is somewhat diminished when it becomes apparent that the issue was not litigated. Moreover, the instances given are few in number. 58Of far more assistance is the decision of Bell J in R v Harris [2000] NSWSC 285; 111 A Crim R 415. In that case, her Honour was sentencing in respect of three murders committed in 1998, pre-dating s 61(1). Bell J referred to cl 37(a) of Sch 2 (the transitional provision, see above) of the Sentencing Procedure Act and said: "74 I do not know what is embraced by the words 'anything begun ... under a provision of the old legislation'. The proceedings were on foot prior to the appointed day at a time when the Sentencing Act was in force. They had been commenced, on one view, not later than the date on which the prisoner was arraigned. It is not clear to me that anything had begun under a provision of the old legislation for which there is a corresponding provision under the [Sentencing] Procedure Act. The proceedings had begun by virtue of the presentation of the indictment. For this reason, I consider the [Sentencing] Procedure Act and not the Sentencing Act to apply to any determinate sentence imposed." That finding was not challenged on appeal. In effect, what her Honour found was that the Sentencing Procedure Act (including s 61(1)) had retrospective application. 59For reasons which will appear below, I respectfully agree with her Honour's conclusion. As did her Honour, I find it impossible to identify anything "done under a provision of [the Sentencing Act]" that could have been continued and completed under the Sentencing Procedure Act. No steps relevant to the applicant's sentencing had been taken before 3 April 2000, the day of the repeal of the Sentencing Act. The two previous trials did not involve anything "done under a provision of the [Sentencing Act]"; nor could they. The applicant was not convicted until 29 June 2001, well after the commencement of the Sentencing Procedure Act. That means that the only sentencing legislation that could apply was the Sentencing Procedure Act. There is no basis upon which to excise s 61(1) from the Sentencing Procedure Act for the purposes of sentencing the applicant. (iii) The Sentencing Procedure Act, including s 61(1), is intended to apply to sentencing for offences from its commencement, whenever the offences were committed 60In support of this argument, the Crown relied upon the circumstances of the enactment of the Sentencing Procedure Act, and the long title that I have set out above. As was indicated in the Second Reading speech, the Sentencing Procedure Act drew together provisions relating to sentencing that had previously been the subject of various other pieces of legislation. It was passed in tandem with several other Acts relevant to criminal punishment. To the extent that its provisions are procedural, it may readily be accepted that it was intended to apply to offences committed before, as well as after, its enactment. It is where (if at all) the provisions are seen to be substantive, particularly where (if it all) they can be seen to worsen the position of an offender (see s 19), that their applicability to pre 3 April 2000 offences may be questioned. 61The sentencing regime prior to 3 April 2000, found in the Sentencing Act, was replaced with the sentencing regime of the Sentencing Procedure Act, with, as I have pointed out above, limited transitional provisions. That the transitional provisions were limited is, in itself, a clear indication that the legislature intended that the new procedures would apply to sentencing taking place after the enactment, whenever the offence in question was committed. Were that not the case, there would be a lacuna in relation to the sentencing of offenders whose crimes were committed prior to 3 April 2000. Thus, it can be seen that the intention was that, save for sentencing proceedings already in train, the Sentencing Procedure Act procedures would apply. There is absolutely no indication that s 61 should be excepted from that conclusion. 62Also of significance is what was effectively the transfer of the provisions of s 431B of the Crimes Act to s 61 of the Sentencing Procedure Act. The transfer was of the complete bundle of provisions contained in the section, with the important exception of sub-s (7). Section 431B expressly did not apply to sentencing in respect of offences committed before the section took effect. It can hardly be thought that the omission of sub-s (7) from s 61 was other than deliberate. That, to my mind, is a further powerful indication that Dunford J was correct in treating s 61(1) as applicable to the sentencing of the applicant. 63The oral argument advanced on behalf of the applicant was based upon two fundamental misconceptions. 64The first was that the sentencing alternatives were (i) sentencing the applicant "under s 61(1)" and (ii) sentencing the applicant "at common law". That is to misunderstand the role of s 61(1). It assumes, wrongly, that s 61(1) is a penalty-creating provision in the same way as s 19A(1) is a penalty creating provision (although the applicant's argument ignored s 19A(1)). It is incorrect to treat s 61(1) as a penalty-creating provision. While s 19A(1) renders a person convicted of murder liable to imprisonment for life, s 61(1) does no such thing. It is a provision that directs a court (although, perhaps, superfluously) that, in the circumstances it specifies, a life sentence must be imposed. 65Any sentence imposed in respect of a conviction for murder is imposed under s 19A(1), even where, by reason of the application of s 21(1) of the Sentencing Procedure Act, it is a sentence for a determinate period. 66Sentencing "at common law" was simply not an option. Underlying the argument was an assumption. That was that if sentenced at common law, the applicant would have been eligible for the specification of a non-parole period, which Dunford J clearly would have done, had he been empowered to do so. That is the second, related, fundamental misconception in the applicant's argument - that, while s 61(1) precluded the specification of a non-parole period, sentencing under s 19A(1) did not. Specification of a non-parole period is quite incompatible with s 19A(2) - requiring that a life sentence be served in its entirety in custody. 67That was confirmed by the decision of this Court in Harris. The Court said: "110 Section 19A(2), which provides that a person sentenced to life imprisonment for murder 'is to serve that sentence for the term of the person's natural life', provides some support for a legislative intention that would exclude release on parole. However, it needs to be borne in mind that a sentence can be served on parole. Section 132 of the Crimes (Administration of Sentences) Act 1999 (NSW), provides that an offender who is released on parole, 'is taken to continue serving the sentence during the period' beginning with the date of release and ending when the sentence expires ... 111 To the extent that a possible ambiguity arises in this respect, it is appropriate to refer to the Second Reading Speech: Legislative Assembly 30 November 1989 14052 to 14057. That speech unequivocally discloses that the intention of s 19A was to ensure that an offender, sentenced to imprisonment for life for murder, or for the most serious cocaine and heroin trafficking offence, was to be physically incarcerated for the term of his or her natural life." (underlining and italics in original) 68The conclusion that s 61(1) was applicable also disposes of another area of contention between the parties. On behalf of the applicant it was argued that, by applying that sub-section, Dunford J deprived the applicant of the benefit of his case in mitigation, by reference to his personal circumstances. The Crown argued that his Honour did have regard to those circumstances. I have set out above the reference made in the Remarks on Sentence to those circumstances. But his Honour explicitly stated that, because of the conclusion to which he had come with respect to the applicant's culpability, he disregarded those circumstances. There was no error in taking that approach. It is consistent, not only with s 61(1), but also with Garforth. 69A circumstance that exposes the fatal flaw in the argument advanced on behalf of the applicant is that it is limited to the contention that, of all the provisions of the Sentencing Procedure Act, only s 61 (or s 61(1)) is excluded from application to the sentencing of the applicant. There is no indication anywhere that s 61 ought to be treated differently from the remaining provisions of the Sentencing Procedure Act. If s 61(1) did not apply to the sentencing of the applicant, then neither did any of the other provisions of the Sentencing Procedure Act, including the abolition of the penalty of penal servitude. 70Senior counsel for the applicant also invoked s 19 of the Sentencing Procedure Act. Section 19, it will be remembered, gives an offender the benefit of any reduction in penalty the enactment of which post dates the offence, but excludes any subsequently enacted increase in penalty - as explained by Spigelman CJ in R v MJR [2002] NSWCCA 129; 54 NSWLR 368. 71The argument was that, because s 61(1) increased the maximum penalty for an offence of murder, s 19(1) of the Sentencing Procedure Act precluded its application to the applicant's offence. 72The argument is based on a false premise. Section 61(1) did not enact an increase to the maximum penalty applicable to the offence of murder. As I have observed above, it did not enact any penalty at all. The penalty for murder is the penalty provided by s 19A(1) - imprisonment for life. Whatever content is otherwise assigned to s 61(1), it did not increase the available penalty. 73In my opinion, ground 1 is without substance and should be rejected.

Ground 2: a political motive? 74Ground 2 was pleaded as an alternative to ground 1. It is that, even if s 61(1) is held to be applicable, it was nevertheless invoked on the basis of a flawed finding of fact - that fact was the applicant's motivation for the murder. 75A fundamental finding of the sentencing judge was that the murder of Mr Newman was motivated by the applicant's "naked political ambition and impatience". The applicant's ambition, Dunford J found, was preselection for the seat of Cabramatta in the Legislative Assembly. 76It was the applicant's case, to the contrary, that his political ambition lay in the Legislative Council, as to which Mr Newman was no impediment. That was an issue fully litigated in the trial and in the sentencing proceedings, as is apparent from the extracts from the Remarks on Sentence set out above. 77However, the applicant now seeks to rely upon what was initially said to be fresh evidence derived from the Patten Inquiry (see [9] above). Senior counsel who appeared for the applicant on the application accepted that the evidence was neither new nor fresh. The circumstances in which new or fresh evidence may be taken into account were spelled out by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and by Latham J in Stumbles v R [2006] NSWCCA 418. The evidence upon which the applicant now seeks to rely does not come within those principles. At most, the witnesses who gave evidence in the Patten Inquiry might have added some bulk to the contention made on his behalf in the trial. The issue was fully litigated and determined in the trial. I would reject this ground of appeal.

Ground 3: failure to take into account subjective factors 78Much that is relevant to this ground has already been dealt with in respect of Ground 1. The complaint is that, "in sentencing under s 61(1)", Dunford J excluded from his consideration personal circumstances about the applicant not relevant to the objective culpability of the crime. 79The point Dunford J made was that the objective circumstances of the crime were of such a nature that personal circumstances, however favourable, could not affect the assessment of culpability. Included in those circumstances were, importantly, the applicant's political motive in arranging the murder, the threat such a murder poses to the institution of government, and also the detail of the planning and previous attempts that I have outlined above. I agree with Dunford J that the relatively favourable personal circumstances of the applicant, as they were known at the time of sentencing, could not in any way dislodge the finding that he made. In those circumstances I would also reject this ground of appeal.

Extension of time 80The application for extension of time pushes to its outer limits the latitude on occasion extended by this Court, which has traditionally taken a rather liberal approach to applications to extend time to appeal. 81In November 2001 (as is still the case), when the applicant was sentenced, s 10 of the Criminal Appeal Act 1912 permitted an application for leave to appeal to be made within 28 days of the imposition of the sentence. Provision was made for extension of that time to be granted. This Court has traditionally been generous in the exercise of that discretion. It is worth restating some of the history I have outlined above. 82The applicant did not initially formally apply for leave to appeal against the sentence, although, by pleading ground 17 to the conviction appeal, he clearly signalled his intention to challenge the sentence. On 7 November 2002 he abandoned that proposed appeal. It was not until 16 July 2012 that he again set in motion an application. In other words, the application now made is about 11 years out of time. 83Time limits are fixed by legislation for the making of applications (of any kind) for good reason. While it is relatively commonplace for this Court to permit a substantial degree of latitude in sentencing matters, there must be boundaries. The Court will, especially in cases of substantial delay, look for a satisfactory explanation for the failure to pursue a remedy at the appropriate time: see Edwards v R [2009] NSWCCA 199; Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424. 84Such explanation as was provided is to be found in an affidavit sworn by the applicant on 18 July 2012. He said that he had abandoned the initial application because he had been advised that "there was insufficient evidence" upon which to appeal. He gave a number of reasons for the subsequent delay as follows: that he was initially devastated by the unfavourable outcome of the Patten Inquiry (the report of which was delivered in April 2009); * that in 2008 and 2009 he suffered significant health problems which depleted his energy and interfered with his capacity to file an application; * that in April 2009 "a very dear close friend" died, causing him further devastation and distraction; * that in 2010 his brother, the only relative who had come to Australia with him, was diagnosed with cancer and died; * that, from early 2009, he devoted considerable time to applying for transfers within the Correctional Services' facilities in which he was housed from time to time. 85The reasons given by the applicant are entirely unconvincing. As set out above, the statutory time for filing an application expired on 12 December 2001. An application (of sorts) was in fact filed on the applicant's behalf, shortly after conviction, but abandoned (also on his behalf). He makes no complaint that the application was abandoned without his informed authority and consent. 86The circumstances to which the applicant now attributes the delay began in 2008, with the beginning of his health issues, and continued to 2009, with the publication of the report of the Patten Inquiry, and to 2010. That is a minimum of seven years after the statutory time expired. That is hardly a credible explanation for the failure to institute the proceedings within time. 87The applicant did not give oral evidence on the application and was not cross-examined on his affidavit. Nevertheless, it does not seem to me to be unfair to describe his explanation as disingenuous. 88Moreover, as can be seen from the above analysis, the grounds advanced have no merit. That, in my opinion, points to the real reason for the delay - that the applicant was advised, in 2003, that the proposed sentence appeal was futile and doomed to failure, and that he accepted that advice. 89I am conscious of the significance of refusing an extension of time in relation to a proposed sentence appeal. I am very conscious that that significance is at its most extreme when the sentence sought to be appealed is one of imprisonment for life. In proposing the order I do, I have taken into account the absence of any merit in the proposed grounds of appeal. 90In my opinion, the appropriate order is to refuse the extension of time. I have not reached that conclusion without satisfying myself that, if an extension of time were granted, an appeal would fail. 91I propose the following order: (1)The application for an extension of time in which to file an application for leave to appeal is refused. 92JOHNSON J: I agree with Simpson J. 93GROVE AJ: I agree with Simpson J.

********** ANNEXURE 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: 19 June 2013