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Court of Criminal Appeal 29 August 2011

Ballard v R

[2011] NSWCCA 193

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL ALLOWED IN PART

Citation: Ballard v R [2011] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 29 August 2011
Judges: Beazley JA, Hall J, Harrison J

Background

The appellant pleaded guilty to two principal offences: supplying 23.05 grams of methylamphetamine, contrary to the Drug Misuse and Trafficking Act 1985, and possessing a prohibited firearm, contrary to the Firearms Act 1996. The firearm was a rifle that had been modified to resemble a walking stick by removing its stock. Six related offences (including possessing other weapons, possessing cannabis, and receiving stolen goods) were taken into account on sentencing Forms 1A and 1B.

At first instance, King DCJ in the District Court sentenced the appellant to a fixed term of 2 years and 6 months for the drug offence, and 4 years imprisonment (with a non-parole period of 2 years and 6 months) for the firearms offence. The firearms sentence was ordered to commence only after the drug sentence expired, producing a total effective sentence of 6 years with an effective non-parole period of 4 years and 6 months.

The appellant sought leave to appeal on six grounds, challenging the rejection of exculpatory psychiatric evidence, the assessment of the objective seriousness of each offence, the treatment of the standard non-parole period, the finding on special circumstances, the extent of accumulation, and manifest excess overall.

  • Whether the sentencing judge erred in rejecting, without notice to the parties, exculpatory statements contained in a psychiatric report
  • Whether the sentencing judge incorrectly assessed the objective seriousness of the drug offence by characterising it as involving a "significant commercial operation"
  • Whether the sentencing judge applied the standard non-parole period framework correctly in relation to the firearms offence
  • Whether the sentencing judge failed to properly consider special circumstances when assessing the ratio between the head sentence and the non-parole period for the firearms offence
  • Whether the sentencing judge's approach to totality and accumulation was erroneous
  • Whether the overall effective sentence was manifestly excessive

Decision

The Court of Criminal Appeal dismissed all grounds except Ground 5, which concerned the principle of totality. Harrison J (with whom Beazley JA and Hall J agreed) found that the individual sentences imposed for each offence were, in themselves, appropriate. No error was established in the sentencing judge's treatment of the psychiatric report, the objective seriousness findings, the standard non-parole period, or the special circumstances analysis.

On the totality ground, Harrison J concluded that the sentencing judge had accumulated the sentences excessively. The principle of totality requires a sentencing court to ensure that the combined effect of consecutive sentences is not disproportionate to the overall criminality involved. Comparing the structure of the sentences with those in comparable cases, particularly cases involving concurrent drug and firearms offending, the Court found that a greater degree of concurrence between the two sentences was required.

The Court held that the firearms sentence could be backdated by one year (commencing 11 May 2010 instead of 11 May 2011) without undermining the force of that sentence or the recognition of the firearms offence as a discrete and serious act of criminality. This adjustment reduced the effective non-parole period from 4 years and 6 months to 3 years and 6 months, while leaving the total head sentence of 6 years unchanged.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The firearms sentence restructured: 4 years imprisonment with a non-parole period of 2 years and 6 months commencing 11 May 2010 and expiring 10 November 2012, with a balance of term of 1 year and 6 months commencing 11 November 2012 and expiring 10 May 2014
  • All other orders and sentences imposed by King DCJ otherwise confirmed
  • Overall effective sentence remains 6 years; effective non-parole period reduced to 3 years and 6 months; earliest parole eligibility date 10 November 2012

Key Takeaways

  • The Court of Criminal Appeal confirmed that individual sentences may each be appropriate and yet the total effective sentence may still require adjustment under the totality principle if the degree of accumulation is excessive relative to the overall criminality.
  • Where two offences arise from the same occasion or are closely connected, sentencing courts are required to consider the extent to which sentences should run concurrently, having regard to comparable cases involving similar combinations of offences.
  • Unverified, self-serving statements made by an offender to a treating psychiatrist or psychologist may properly be rejected by a sentencing judge, particularly where they are inconsistent with agreed facts and untested by cross-examination.
  • A finding that the firearms sentence was excessively accumulated did not require the Court to disturb the individual sentence imposed for that offence; adjusting the commencement date was a sufficient remedy.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must be satisfied that some other sentence is warranted in law before intervening in a sentence; identifying an error in approach does not automatically lead to a re-sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 32 (Form 1 offences)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW)

Cases
- R v Pearce (1998) 194 CLR 610
- Tran v R [2010] NSWCCA 183
- Alvares v R; Farache v R [2011] NSWCCA 33
- Cahyadi v R (2007) 168 A Crim R 41
- R v MMK (2006) 164 A Crim R 481
- Clarke v R [2009] NSWCCA 49
- Georgopolous v R [2010] NSWCCA 246
- Nguyen v R [2011] NSWCCA 127
- R v AZ [2011] NSWCCA 43
- R v Qutami (2001) 127 A Crim R 369
- Sivell v R [2009] NSWCCA 286
- R v Cramp [2004] NSWCCA 264
- R v AJP (2004) 150 A Crim R 575
- R v Hammoud [2000] NSWCCA 540
- R v Harmouche [2005] NSWCCA 398
- R v XX (2009) 195 A Crim R 38
- Mack v R [2009] NSWCCA 216
- R v Elfar [2003] NSWCCA 358
- R v Gu [2006] NSWCCA 104
- Attorney General's Application No 1 of 2002 [2002] NSWCCA 518