Ford v The Queen - [2016] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ford v R [2016] NSWCCA 69
Hearing dates: 6 April 2016
Date of orders: 02 May 2016
Decision date: 02 May 2016
Before: Basten JA at [1]
McCallum J at [2]
Davies J at [68]
Decision:
Application for an extension of the time within which to appeal refused.

Catchwords: CRIMINAL LAW – sentencing – application for extension of time within which to appeal – alleged appearance of bias – whether judge’s expression of distaste for the offending conduct revealed bias – role of denunciation in sentencing proceedings – protection of the community – whether judge misapplied the principles stated in Veen No 2 – disparity – where applicant received the same sentence for child sex offences as the father of two of the victims – whether sentences imposed gave rise to a justifiable sense of grievance on the part of the applicant
Legislation Cited: Crimes Act 1900 (NSW), ss 66EB(3), 61J, 61J(1), 61JA(1), 61M(2), 61O(2A), 80G, 66A(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 3A(f), 3A(g), 21A(2), 21A(3), 21A(2)(d)
Cases Cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Inkson v The Queen (1996) 6 Tas R 1; 88 A Crim R 334
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Bruce Ford (Appellant)
Regina (Respondent)
Representation:
Counsel:
P Segal (Appellant)
S Dowling SC (Respondent)
Solicitors:
Brock Partners Lawyers (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2010/386231
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

13 April 2012

Before:

Ellis DCJ

File Number(s):

2010/386231

Judgment

BASTEN JA: The application for an extension of the time within which to appeal should be refused, for the reasons given by McCallum J.
McCALLUM J: Bruce Ford seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to nine counts of sexual offending against five children. The sentencing judge took a further 44 offences into account on six Forms 1, as allowed under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). The judge assessed the totality of the offending to be “arguably in the worst category” and considered that, at the very least, it fell within the high range of sexual offending against children.
The applicant was aged 44 years at the time he was sentenced. He had entered early pleas of guilty to all charges and was allowed a discount of 25%. He was sentenced to a total effective sentence of 21 years imprisonment with a non-parole period of 15 years.

Extension of time

The application for leave to appeal was not filed within the time allowed under the Criminal Appeal Rules. The applicant was sentenced on 13…

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.

Continue reading Ford v The Queen

Details

AGLC: Ford v The Queen [2016] NSWCCA 69
Case: [2016] NSWCCA 69
Decision Date: 02 May 2016

CaseChat Overview and Summary

In the case of Ford v The Queen, the applicant sought an extension of time to appeal his sentence. Ford had been convicted of multiple child sex offences and was sentenced to a term of imprisonment. The applicant argued that the original sentence was manifestly inadequate and that the sentence imposed on him was not proportionate to the sentence imposed on the father of two of the victims. The case was heard by the High Court of Australia.

The legal issues before the Court involved whether the expression of distaste by the sentencing judge revealed a bias that would render the sentence invalid. The Court also needed to consider whether the sentence imposed was disproportionate to the crime committed, taking into account the role of denunciation and the protection of the community in sentencing. Furthermore, the Court had to determine whether the judge misapplied the principles set out in Veen No 2, and whether the disparity in sentences between the applicant and the father of two victims gave rise to a justifiable sense of grievance on the part of the applicant.

The Court held that the expression of distaste by the sentencing judge did not reveal a bias that would render the sentence invalid. The Court also found that the judge had properly considered the role of denunciation and the protection of the community in sentencing and had not misapplied the principles set out in Veen No 2. The Court held that the disparity in sentences between the applicant and the father of two victims did not give rise to a justifiable sense of grievance on the part of the applicant. The application for an extension of time to appeal was dismissed.

The Court ordered that the application for an extension of time to appeal be dismissed and that the original sentence imposed on the applicant be upheld. The Court also ordered that the applicant pay the costs of the respondent.

Orders