R v Ball - [2021] NSWCCA 314

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Ball [2021] NSWCCA 314
Hearing dates: 8 December 2021
Decision date: 17 December 2021
Before: Simpson AJA at [1];
Rothman J at [2];
Button J at [75]
Decision:
Appeal dismissed

Catchwords:
CRIME – Sentence appeal – Crown appeal – manifest inadequacy – error in classification of objective seriousness – aggravated break and enter – no error in particular circumstances of offence and offender, particularly non-exculpatory provocation – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) s 112(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5; 9(1)(b); 10(1)(b)
Criminal Appeal Act 1912 (NSW) s 5D

Cases Cited:
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
House v The King (1936) 55 CLR 499 at 105; [1936] HCA 40
Lovell v R [2006] NSWCCA 222
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Marshall v R [2007] NSWCCA 24
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Williams v R (2012) 203 A Crim R 172; [2012] NSWCCA 172

Category: Principal judgment
Parties: Regina (Applicant)
Jessie Clarance Ball (Respondent)
Representation:
Counsel:
G Newton (Applicant)
Z Khan (Respondent)
Solicitors:
Office of the Director of Public Prosecution (NSW) (Applicant)
Hounsell Cunningham Lawyers (Respondent)

File Number(s): 2020/307291
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

19 August 2021

Before:

Jeffreys DCJ

File Number(s):

2020/307291

Judgment

SIMPSON AJA: I agree with Rothman J.
ROTHMAN J: On 19 August 2021, his Honour Judge Jeffreys at the District Court in Port Macquarie sentenced the respondent, Jessie Clarance Ball, for the offence of aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty under the Crimes Act for such an offence is 20 years’ imprisonment and there is prescribed a standard non-parole period of 5 years’ imprisonment.
The respondent was sentenced to a conditional release order for 2 years to date from 19 August 2021 with the standard conditions and the respondent was otherwise discharged pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Director of Public Prosecutions (NSW) (hereinafter “the DPP”) appeals the sentence imposed by his Honour, pursuant to the terms of s 5D of the Criminal Appeal Act 1912 (NSW).
The grounds relied upon by the DPP are:

Ground 1: His Honour erred in his assessment of the objective seriousness of the offence; and

Ground 2: The sentence pronounced is manifestly inadequate.

Facts

As a consequence of the respondent’s plea of guilty at the earliest possible opportunity, the respondent was committed for sentence in the Kempsey Local Court on 30 June 2021 and, as has been stated, was sentenced in the District Court on 19 August 2021. The offence with which the respondent was charged was that, between 8 PM and 9:30 PM on…

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 R v Ball

Details

AGLC: R v Ball [2021] NSWCCA 314
Case: [2021] NSWCCA 314
Decision Date: 17 December 2021

CaseChat Overview and Summary

The case of R v Ball involved an appeal against sentence by the Crown, challenging the adequacy of the sentence imposed on the defendant for an aggravated break and enter offence. The appeal was heard in the Court of Appeal, where the primary issue was whether the sentence imposed by the trial judge was manifestly inadequate. The Crown argued that the trial judge had erred in the classification of the objective seriousness of the offence, leading to an insufficient sentence.

The legal issues before the court included whether there was an error in the classification of the objective seriousness of the offence, and if the sentence imposed was manifestly inadequate. The court examined the particular circumstances of the offence and the offender, including whether there was any non-exculpatory provocation. The court considered the totality of the circumstances, including the severity of the crime and the defendant's criminal history.

The Court of Appeal found that, while there was an error in the classification of the objective seriousness of the offence, this did not result in a manifestly inadequate sentence. The court determined that the trial judge had appropriately considered the particular circumstances of the offence and the offender, including the absence of any exculpatory provocation. The appeal was dismissed, and the original sentence was upheld. The court concluded that the sentence imposed was not manifestly inadequate and did not require any adjustment.

Orders