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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: Court of Criminal Appeal
Date: 29 August 2011
Judge(s): Beazley JA, Hall J, Harrison J (Harrison J delivered the principal judgment)

Background

The appellant pleaded guilty to supply of a prohibited drug (23.04g of methylamphetamine) and possession of a prohibited firearm (a .22 calibre rifle modified to resemble a walking stick). Six related minor offences were also before the sentencing court on Form 1 documents and taken into account.

The sentencing judge in the District Court imposed a fixed term of 2 years and 6 months for the drug offence, followed by a separate 4-year term for the firearms offence commencing two years into the drug sentence. The result was 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 multiple grounds, arguing errors in the treatment of hearsay psychiatric evidence, the assessment of objective seriousness for both offences, the finding of special circumstances, and the overall totality of the sentence.

Legal Issues

  • Whether the sentencing judge erred by rejecting, without warning the parties, the appellant's untested assertion to a psychiatrist that others directed his drug supply
  • Whether the finding that the appellant was involved in a "significant commercial operation" was open on the evidence
  • Whether the firearms sentence was assessed at an incorrect level of objective seriousness
  • Whether the sentencing judge adequately considered all special circumstances when departing from the statutory non-parole period ratio
  • Whether the total effective sentence was manifestly excessive due to excessive accumulation of the two principal sentences

Decision

Ground 1: Rejection of hearsay psychiatric evidence

The appellant argued that the sentencing judge should have alerted the parties before rejecting his assertion to a psychiatrist that others had organised the drug supply. The Court held that a sentencing judge is not obliged to accept uncritically material in tendered reports where the offender chooses not to give evidence (at [21]-[22]). The appellant made a forensic decision not to enter the witness box, and accepted the risk that hearsay statements would be treated with circumspection. No denial of procedural fairness arose from the judge's approach (at [23]).

Ground 2: "Significant commercial operation" finding

The appellant challenged the characterisation of his enterprise as a significant commercial operation, pointing to the drug's low purity, his status as a user-dealer, and the absence of mixing equipment. The Court found the relevant findings were reasonably open: drugs were stored at two locations, record-keeping books indicated prior transactions, and stolen goods worth over $12,000 had apparently been exchanged for drugs (at [28]-[31]). The fixed term of 2 years and 6 months for the drug offence, against a maximum of 15 years, was described as "wholly unexceptionable" (at [31]).

Ground 3: Objective seriousness of the firearms offence

The Court noted that reasonable minds could differ on the correct placement of the firearms offence within the range of objective seriousness. Harrison J indicated that he personally would have placed the offence below the middle of the range, given that the firearm was unloaded, no ammunition was present, and no connection to the drug enterprise was established (at [41]-[42]). However, the Court declined to find that the sentencing judge erred in his assessment, and rejected this ground (at [43]).

Ground 4: Special circumstances

The appellant contended the sentencing judge failed to consider special circumstances beyond the fact of accumulation, such as the appellant's cognitive deficits, drug addiction, and first lengthy custodial term. The Court held that the manner and extent of any adjustment for special circumstances was entirely within the sentencing judge's discretion, and no demonstrated error was established (at [46]-[47]).

Grounds 5 and 6: Totality and manifest excess

The Court allowed the appeal on this ground. While each individual sentence was appropriate, the degree of accumulation produced a total effective sentence that was manifestly excessive (at [57]). The firearms offence was characterised as a relatively passive offence with no demonstrated connection to the drug supply operation. Applying the principle of totality, and by reference to comparable cases, the Court found the commencement date for the firearms sentence should be brought forward by one year, from 11 May 2011 to 11 May 2010 (at [64]-[65]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • In lieu of the original firearms sentence, the appellant is sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months commencing 11 May 2010 and expiring 10 November 2012, and a balance of term of 1 year and 6 months commencing 11 November 2012 and expiring 10 May 2014
  • All other sentences and orders of King DCJ confirmed
  • The overall effective sentence remains 6 years, but the effective non-parole period is reduced to 3 years and 6 months, with the first parole eligibility date of 10 November 2012

Key Takeaways

  • A sentencing judge is not required to accept hearsay material in a psychiatric report at face value where the offender has elected not to give evidence; the risk of that material being treated with "considerable caution" falls on the offender who made the forensic choice (at [21]-[22]).

  • Where individual sentences are each appropriate, the principle of totality can still require intervention if the structure of accumulation produces a combined sentence disproportionate to the overall criminality (at [57], [64]-[65]).

  • The Court of Criminal Appeal confirmed that a passive firearms offence with no demonstrated connection to a co-occurring drug enterprise warrants a greater degree of concurrence in sentencing than one directly linked to drug-related violence or threat (at [57], [64]).

  • No error arises from a sentencing judge conducting a mid-range objective seriousness analysis for an offence not attracting a standard non-parole period, even though such analysis is not strictly required by law (at [30]).

  • The manner and extent of any departure from the statutory non-parole period ratio following a finding of special circumstances remains within the sentencing judge's discretion, and the judge is not obliged to enumerate reasons for not departing further (at [46]-[47]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Criminal Appeal Act 1912
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985
- Firearms Act 1996
- Weapons Prohibition Act 1998

Cases
- Alvares v R; Farache v R [2011] NSWCCA 33
- Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Clarke v R [2009] NSWCCA 49
- Georgopolous v R [2010] NSWCCA 246
- Mack v R; Mack v R [2009] NSWCCA 216
- Nguyen v R [2011] NSWCCA 127
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v AZ [2011] NSWCCA 43
- R v Cramp [2004] NSWCCA 264
- R v Elfar [2003] NSWCCA 358
- R v Gu [2006] NSWCCA 104
- R v Hammoud [2000] NSWCCA 540
- R v Harmouche [2005] NSWCCA 398
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v Pearce [1998] HCA 57; (1998) 194 CLR 610
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- Sivell v R [2009] NSWCCA 286
- Tran v R [2010] NSWCCA 183
- TS v R [2007] NSWCCA 194