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2
Court of Criminal Appeal 12 February 2007

Ward v R

[2007] NSWCCA 22

Also reported as (2007) 168 A Crim R 545
Drugs
SENTENCE APPEAL SUPPLY OF AMPHETAMINES AND CANNABIS NEED TO AVOID DOUBLE COUNTING

Citation: Ward v R [2007] NSWCCA 22
Court: Court of Criminal Appeal, New South Wales
Date: 12 February 2007
Judge(s): Adams J, Howie J, Price J

Background

The appellant pleaded guilty in the District Court to three drug supply offences: one count of supplying cannabis and two counts of supplying methylamphetamine. The offending involved a pattern of repeated commercial transactions with a supplier named Torbett, conducted over several months in 2004 and 2005. The quantities involved were well above the statutory indictable thresholds, and the appellant was assessed as operating at the mid-levels of an organised commercial drug supply network.

At sentencing, the District Court imposed an accumulated sentence totalling four years, with a non-parole period of two years on the methylamphetamine counts. Among the aggravating factors the sentencing judge applied under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 was that the offences were committed "without regard to public safety."

The appellant sought leave to appeal, arguing that the sentencing judge had erred in treating disregard for public safety as an aggravating factor in the circumstances of this case and, separately, that the overall sentences were excessive.

  • Whether the sentencing judge erred by applying the aggravating factor of "disregarding public safety" under section 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 to offences of drug supply
  • Whether disregard for public safety is an inherent characteristic of commercial drug supply offences, such that applying it as a separate aggravating factor constitutes impermissible double-counting
  • Whether, on the second ground, the sentences imposed for the methylamphetamine counts were manifestly excessive

Decision

On the first ground, the Court found that the sentencing judge had applied the public safety aggravating factor almost automatically, without genuine consideration of how it operated in the specific case. The Court confirmed that section 21A(2) expressly prohibits a court from treating a matter as an aggravating factor where that matter is already an element of the offence. Building on the reasoning in Elyard v R, the Court clarified that this prohibition extends, by analogy, to characteristics that are inherent in a category of offending, not merely formal elements of the offence as defined.

Although the first ground was not the basis for the orders ultimately made, Howie J observed that where an aggravating factor either is an element of the offence or may reasonably be seen as an inherent characteristic of that type of offending, a sentencing judge must explain why the factor is distinctly present in the particular case before the court. The passage in R v Way that appeared to endorse public safety as an aggravating factor in a drug supply context was distinguished: that case had not addressed the inherent-characteristic question at all.

On the second ground, the Court found that the sentences on the two methylamphetamine counts were manifestly excessive and that leave to appeal should be granted. New, shorter sentences were substituted for those counts.

Orders Made

  • Leave to appeal against sentence granted
  • Sentences on counts 2 and 3 quashed
  • In substitution for each of counts 2 and 3: a non-parole period of one year and six months commencing 24 February 2007 and expiring 23 August 2008, with a balance of term of one year and six months expiring 23 February 2010
  • Earliest eligible parole date: 23 August 2008

Key Takeaways

  • Under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a court must not apply an aggravating factor that is already an element of the offence; the Court of Criminal Appeal confirmed that this prohibition also captures characteristics inherent in the relevant category of offending.
  • Where a sentencing judge applies an aggravating factor that might plausibly be regarded as inherent to a class of offence, the judgment must explain why that factor is distinctly present in the particular case, rather than treating its application as self-evident.
  • The decision in R v Way was not authority for the general proposition that disregard for public safety is always an available aggravating factor in drug supply sentencing; that case was decided in a different factual and legal context and did not address the inherent-characteristic limitation.
  • Applying such a factor without proper analysis amounts to an error in the exercise of sentencing discretion and may ground a successful appeal.
  • In dismissing the public safety ground but upholding the manifest excess ground, the Court reduced the non-parole period on the methylamphetamine counts from two years to eighteen months.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly section 21A(2)

Cases
- Elyard v The Queen [2006] NSWCCA 43
- R v Ancuta [2005] NSWCCA 275
- R v Aslan [2005] NSWCCA 121
- R v Burke [2002] NSWCCA 353
- R v Olbrich (1998) 45 NSWLR 538
- R v Way (2004) 60 NSWLR 168