Paul Ward v The Queen - [2017] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0058

PAUL WARD	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2017
DATE OF JUDGMENT:	29 August 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 222
JUDGMENT APPEALED FROM:	DPP v Ward (Unreported, County Court of Victoria, Judge Saccardo, 14 December 2016) (Conviction); [2017] VCC 226 (Judge Saccardo) (Sentence)

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CRIMINAL LAW – Application for leave to appeal against conviction – Attempted armed robbery (one charge) – Armed robbery (one charge) – Reckless conduct endangering life (one charge) – Identity of offender in issue – Prosecution led evidence from telecommunications officer as to geographic location of mobile phone at certain times - Whether trial judge erred in allowing evidence to be given by reference to statistical likelihood - Leave to appeal granted.

CRIMINAL LAW – Application for leave to appeal – Sentence – Theft (four charges) – Burglary (one charge) - Cumulation - Whether cumulation ordered renders total effective sentence manifestly excessive or as breach of totality principle – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood	Papa Hughes Lawyers
For the Respondent	Mr B Kissane QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:

This application concerns convictions and sentences on three separate indictments, which for ease of reference I will refer to by their final numbers, being 6.1, 6.2 and 6.3.

On indictment 6.1 the applicant pleaded guilty to one charge of theft of a BMW motor vehicle on 18 February 2015.

Indictment 6.2 contained further charges also allegedly committed on 18 February 2015. The applicant pleaded not guilty to those charges. He was found guilty after a trial on one charge of attempted armed robbery (charge 1), one charge of armed robbery (charge 3), and one charge of reckless conduct endangering life (charge 4).

On indictment 6.3 the applicant pleaded guilty to charges of theft of a registration plate, theft of a Ford motor vehicle, burglary, and theft.

On 10 March 2017 the applicant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
Indictment 6.1
1.	Theft (BMW)	10 years	1 years’ imprisonment	6 months
Indictment 6.2
1.	Attempted armed robbery	20 years	2 ½ years’ imprisonment	1 year
3.	Armed robbery	25 years	6 ½ years’ imprisonment	Base
4.	Reckless conduct endangering life	10 years	2 years’ imprisonment	1 year
Indictment 6.3
1.	Theft (registration plate)	10 years	2 months’ imprisonment	N/A
2.	Theft (Ford)	10 years	1 years’ imprisonment	6 months
3.	Burglary	10 years	2 years’ imprisonment	12 months
4.	Theft (cold and flu tablets)	10 years	1 years’ imprisonment	N/A

Total Effective Sentence:	10 years and 6 months’ imprisonment
Non-Parole Period:	7 years and 6 months’ imprisonment
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:	734…

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 Paul Ward v The Queen

Details

AGLC: Paul Ward v The Queen [2017] VSCA 222
Case: [2017] VSCA 222
Decision Date: 29 August 2017

CaseChat Overview and Summary

The case of Paul Ward versus The Queen involved a defendant appealing against both his conviction and the sentence imposed by the trial court. Ward was convicted of attempted armed robbery, armed robbery, and reckless conduct endangering life. Additionally, he was convicted of theft (four charges) and burglary (one charge). The crux of the appeal was twofold: firstly, Ward sought leave to appeal against his conviction on the basis that the trial judge had erred in allowing the prosecution to present evidence from a telecommunications officer concerning the geographic location of a mobile phone at specific times, particularly through the use of statistical likelihood. Secondly, Ward sought leave to appeal against his sentence, arguing that the cumulative effect of the sentences imposed rendered the total effective sentence manifestly excessive and a breach of the totality principle.

The High Court was tasked with determining whether the trial judge had erred in admitting the telecommunications officer's evidence and, if so, whether this constituted a ground for leave to appeal. Additionally, the court had to consider whether the cumulative effect of the sentences imposed resulted in a manifestly excessive total effective sentence that breached the principles of sentencing totality. The High Court found that the trial judge had indeed erred in allowing the evidence of the telecommunications officer to be presented by reference to statistical likelihood, as this constituted an impermissible inference. However, concerning the sentence, the court concluded that the cumulative effect did not render the total effective sentence manifestly excessive or a breach of the totality principle.

Accordingly, the High Court granted leave to appeal against the conviction but refused leave to appeal against the sentence. The decision underscores the importance of strict evidentiary rules in criminal trials and the need for courts to carefully consider the proportionality and fairness of cumulative sentences.

Orders