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
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
BEAZLEY JA: I agree with the reasons and orders proposed by Harrison J.
HALL J: I agree with Harrison J.
HARRISON J: The applicant pleaded guilty on 30 September…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.