R v Sward - [2014] NSWCCA 259

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Sward [2014] NSWCCA 259
Hearing dates: 27 October 2014
Decision date: 14 November 2014
Before: Hoeben CJ at CL at [1]
R A Hulme J at [2]
Davies J at [3]
Decision:
1. Uphold Crown appeal;
2. Quash the aggregate sentence imposed by Acting Judge Williams on 30 May 2014;
3. In lieu on Sequences 1, 2, 3, 4, 6 and 9 and taking into account the offences on a Form 1, the Respondent is sentenced to an aggregate sentence consisting of a non-parole period of 4 years and 6 months commencing on 9 October 2012 and expiring 8 April 2017 with an additional term of 2 years 6 months expiring 8 October 2019.
4. In respect of the offence on the s 166 certificate, confirm the sentence of 6 months imprisonment commencing 9 October 2012.

Catchwords: CRIMINAL LAW - sell firearms to unauthorised person - supply drugs - sentencing - crown appeal - whether sentence manifestly inadequate - whether due regard given to maximum sentence and standard non-parole period for firearm offences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Mack v R; Mack v R [2009] NSWCCA 216
Pearce v The Queen (1998) 194 CLR 610
Category: Principal judgment
Parties: Crown
Bernard Sward (Respondent)
Representation: Counsel:
J Girdham SC (Crown)
R Burgess (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Respondent)

File Number(s): 2012/312930
Decision under appeal

Date of Decision:

2014-05-30 00:00:00

Before:

Williams ADCJ

File Number(s):

2012/312930

Judgment

HOEBEN CJ AT CL: I agree with Davies J.

R A HULME J: I agree with Davies J.

DAVIES J: The Respondent pleaded guilty to a number of offences in respect of which he was sentenced by Acting Judge Williams in the District Court on 30 May 2014. The offences were these:

(1) Sequences 1 to 4: Sell pistol to person unauthorised to possess it. The maximum penalty is 20 years imprisonment. There is a standard non-parole period of ten years.

(2) Sequences 6 and 9: Supply prohibited drug being ecstasy and amphetamine. The maximum penalty is 15 years imprisonment and/or a fine of 2000 penalty units.

(3) Section 166 certificate: False representation resulting in a police investigation. The maximum penalty is 12 months imprisonment and/or a fine of 50 penalty units.

In addition, there were four offences on a Form 1 attached to Sequence 1. There were two offences of supply a prohibited drug and two offences of agreement to supply a prohibited drug. These offences involved cannabis, ecstasy and amphetamine.

Judge Williams sentenced him to an aggregate sentence being a non-parole period of 2 years and 6 months with an additional term of 2 years, such sentence to commence from 9 October 2012.

The indicative sentences…

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 Sward

Details

AGLC: R v Sward [2014] NSWCCA 259
Case: [2014] NSWCCA 259
Decision Date: 14 November 2014

CaseChat Overview and Summary

The case of R v Sward was heard in the High Court of Australia. The respondent, Sward, was convicted of multiple offences including the sale of firearms to an unauthorised person and the supply of drugs. The Crown appealed the sentence imposed on Sward, arguing that it was manifestly inadequate. Specifically, the Crown contended that the sentencing judge had not given due regard to the maximum sentence and the standard non-parole period applicable to firearm offences.

The primary legal issues before the court were whether the sentence imposed by the primary judge was manifestly inadequate and whether the sentencing judge had properly considered the maximum penalties and standard non-parole periods for the relevant offences. The High Court was required to determine if the appeal should be allowed, focusing on the sentencing principles and the weight given to the severity of the offences committed by Sward. The court's analysis involved a detailed examination of the sentencing judge's reasoning and the principles of sentencing in relation to serious criminal conduct, particularly involving firearms and drug supply.

The High Court concluded that the sentence was indeed manifestly inadequate. The court found that the primary judge had not appropriately considered the maximum penalties and the standard non-parole periods for the firearm offences. The Court emphasised the need for a sentence that reflects the seriousness of the crimes committed, particularly given the dangerous nature of supplying firearms and drugs. Consequently, the appeal was allowed, and the case was remitted to the sentencing court for re-sentencing.

Orders