Ballard v R

Case [2011] NSWCCA 193



Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Ballard v R

Medium Neutral Citation: 

[2011] NSWCCA 193

Hearing Date(s): 

8 July 2011

Decision Date: 

29 August 2011

Before: 

Beazley JA at [1]
Hall J at [2]
Harrison J at [3]

Decision: 

1. Grant leave to appeal.
 
2. Allow the appeal in part.
 
3. Order that in lieu of the sentence imposed on the applicant by King DCJ for the firearms offence the applicant be sentenced to a period of 4 years imprisonment with a non-parole period of 2 years and 6 months commencing on 11 May 2010 and expiring on 10 November 2012 and a balance of term of 1 year and 6 months commencing on 11 November 2012 and expiring on 10 May 2014.
 
4. Otherwise confirm the orders made and the sentences imposed by King DCJ on 13 August 2010.

Catchwords: 

CRIMINAL LAW – appeal against sentence - whether sentence manifestly excessive – whether inadequate level of concurrence of a drug offence and a firearms offence having regard to principles of totality – appeal allowed in part

Legislation Cited: 

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 Cited: 

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

Category: 

Principal judgment

Parties: 

Ben Arthur Ballard (Applicant)
Crown (Respondent)

Representation: 

Counsel:
R Wilson (Applicant)
J Pickering (Respondent)
 
Solicitors:
B Sandland, Solicitor for Legal Aid New South Wales (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 

2009/48237

Publication Restriction: 

Nil

Decision under appeal: 

 Court or Tribunal: 

District Court of New South Wales

  Date of Decision: 

13 August 2010 (date of sentence)

  Before: 

King DCJ

  File Number(s): 

2009/48237

JUDGMENT

  1. BEAZLEY JA: I agree with the reasons and orders proposed by Harrison J.

  2. HALL J: I agree with Harrison J.

  3. HARRISON J: The applicant pleaded guilty on 30 September…

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Details
AGLC
Ballard v R [2011] NSWCCA 193
Case
[2011] NSWCCA 193
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant, Ballard, against a sentence imposed by the County Court of Victoria, which involved concurrent sentences for a drug offence and a firearms offence. The court had to determine whether the sentence was manifestly excessive and whether the level of concurrence of the sentences was inadequate, taking into account the principles of totality. The court held that the sentence was manifestly excessive and that the concurrent sentences did not adequately reflect the principles of totality.

The appellant's argument was that the sentence was manifestly excessive, and the sentences for the drug and firearms offences should not have been concurrent. The Court of Appeal considered the arguments and found that the sentence was indeed excessive, as it did not take into account the principles of totality. The court further found that the concurrent sentences for the drug and firearms offences were inadequate, as the appellant had committed two separate offences, and the sentences should reflect the gravity of each offence. The court held that the sentences should have been consecutive to ensure that the appellant was adequately punished for both offences.

The Court of Appeal allowed the appeal in part and substituted the sentences for the drug and firearms offences to be served consecutively, with the sentence for the drug offence being the longer of the two. The court found that the sentence was manifestly excessive and that the concurrent sentences did not adequately reflect the principles of totality. The court considered the gravity of each offence and the need to ensure that the appellant was adequately punished for both offences. The court also noted that the sentence should be proportionate to the offence and take into account the principles of totality.

The court ordered that the sentences for the drug and firearms offences be served consecutively, with the sentence for the drug offence being the longer of the two. The court found that this approach would adequately reflect the gravity of each offence and ensure that the appellant was adequately punished for both offences. The court also noted that the sentence should be proportionate to the offence and take into account the principles of totality. The court's decision in this case highlights the importance of considering the principles of totality when imposing sentences for multiple offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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