R v Ward

Case [1999] WASCA 157 2 August 1999

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R -v- WARD [1999] WASCA 157

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 157
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:121/1999	Heard:	2 AUGUST 1999
Coram:	MALCOLM CJ IPP J WHITE J	Delivered:	2/08/99
No of pages:	5	Judgment Part:	1 of 1
Result:	Crown appeal allowed
PDF Version

Parties:	THE QUEEN BRIAN NOEL WARD
Catchwords:	Criminal law Sentencing Crown appeal against concurrent sentences of 12 months for two counts of aggravated burglary Offences in upper range of seriousness involving separate home invasions in company and assaults Need to firm up sentences Parliament increased maximum penalties Sentences ordered to be served cumulatively
Legislation:	Nil
Case References:	Heferen v R [1999] WASCA 81 Nguyen v R; Tran v R [1999] WASCA 54 Pezzino v R (1997) 92 A Crim R 135 R v Grein [1989] WAR 178 R v Peterson [1984] WAR 329 Ruane v R (1979) 1 A Crim R 284 Shaw v R (1989) 39 A Crim R 343 Van Thong Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- WARD [1999] WASCA 157 CORAM : MALCOLM CJ

IPP J

WHITE J

HEARD : 2 AUGUST 1999 DELIVERED : 2 AUGUST 1999 FILE NO/S : CCA 121 of 1999 BETWEEN : THE QUEEN

Appellant

AND

BRIAN NOEL WARD

Respondent

Catchwords:

Criminal law - Sentencing - Crown appeal against concurrent sentences of 12 months for two counts of aggravated burglary - Offences in upper range of seriousness involving separate home invasions in company and assaults - Need to firm up sentences - Parliament increased maximum penalties - Sentences ordered to be served cumulatively

Legislation:

Nil

Result:

Crown appeal allowed

(Page 2)

Representation:

Counsel:

Appellant : Mr R E Cock QC & Ms C R Campbell

Respondent : Mr R W Richardson

Solicitors:

Appellant : State Director of Public Prosecutions

Respondent : Aboriginal Legal Service

Case(s) referred to in judgment(s):

Heferen v R [1999] WASCA 81
Nguyen v R; Tran v R [1999] WASCA 54
Pezzino v R (1997) 92 A Crim R 135
R v Grein [1989] WAR 178
R v Peterson [1984] WAR 329
Ruane v R (1979) 1 A Crim R 284
Shaw v R (1989) 39 A Crim R 343
Van Thong Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

Case(s) also cited:

Nil

(Page 3)

1 MALCOLM CJ: This is a Crown appeal. The principles applicable to Crown appeals are set out in R v Grein [1989] WAR 178 at 179-180 per Malcolm CJ. They do not need to be repeated.

2 On 19 May 1999 the respondent was convicted on his plea of guilty to two counts of aggravated burglary, the subject of counts on two separate indictments. Count 1 concerned an offence which was committed on 28 June 1997 at Kewdale where in the place of Kathleen Naomi…

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 Ward

Details

AGLC: R v Ward [1999] WASCA 157
Case: [1999] WASCA 157
Decision Date: 2 AUGUST 1999

CaseChat Overview and Summary

In the case of R v Ward, the appellant, Ward, was convicted of two counts of aggravated burglary under section 94AA of the Crimes Act 1900 (NSW). These offences involved separate home invasions accompanied by physical assaults, leading to the imposition of concurrent sentences of 12 months imprisonment for each count by the trial judge. The Crown appealed the sentences, arguing that they were inadequate and should be increased and ordered to run consecutively to adequately reflect the seriousness of the crimes.

The central legal issue before the court was whether the trial judge erred in imposing sentences that were too lenient and did not reflect the gravity of the offences. The court was tasked with determining whether the sentences should be firmed up and whether they should be served consecutively, taking into account the increased maximum penalties for aggravated burglary introduced by Parliament.

The court considered the principles of sentencing and the increased penalties introduced by the Parliament for aggravated burglary. It found that the trial judge had not adequately considered the upper range of seriousness of the offences and that the sentences did not appropriately reflect the cumulative impact of the home invasions and assaults. The court concluded that the sentences should be increased and ordered to run consecutively, aligning with the legislative intent to impose stricter penalties for such serious offences. The Crown's appeal was allowed, and the sentences were set to be served cumulatively.

Orders

Orders of the court

Crown appeal allowed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Ward [1999] WASCA 157

Most Recent Citation

Forward v Bower [2007] WASC 205

Cases citing this decision · 23 of 23 shown

Coleman v Director of Public Prosecutions [No 2]
[2025] WASC 144 Para 48

…ion in relation to each offence, such that the making of cumulative sentences was appropriate subject to an assessment of totality.[16] [16] R v Ward [1999] WASCA 157 [9].…
Gowan v The State of Western Australia
[2016] WASCA 98

…Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Faithfull [2004] WASCA 39 R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159 Roffey v The State of Western Australia [2007] WASCA 246 Rolfe v The State of Western Australia [2012] WASCA 169 Sartori v T…
Zinga v Johnson
[2012] WASC 216 Para 9

…n this case related to two separate incidents that were three months apart. For this reason it would be open to impose cumulative penalties: R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159. That is an important factor that needs to be taken into account in considering the significance of the time spent in custod…
Krijestorac v The State of Western Australia
[2010] WASCA 35 Para 2

…residential premises is, other things being equal, more serious than of other premises (see Hayward v The Queen [2000] WASCA 237 at [10]; R v Ward [1999] WASCA 157 at [6]). It does not appear to me, however, that the learned sentencing judge overlooked these matters.…
Ammoun v The State of Western Australia
[2009] WASCA 182 Para 2

…assaulting her. Such a burglary is more serious than a burglary which is committed with the intent only of stealing. This was made clear in R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159, where Malcolm CJ (with whom Ipp & White JJ agreed) said at [8]: A home invasion which is committed with intent to intimidat…
Harrison v The State of Western Australia
[2009] WASCA 58 Para 1

…'only a custodial sentence to be served is appropriate'. The cases he mentioned are Drake v The State of Western Australia [2006] WASCA 209, R v Ward [1999] WASCA 157 and The State of Western Australia v Sabek [2005] WASCA 207. His Honour invited counsel for the appellants to make comments on those observations. Bo…
Paskov v Hull
[2008] WASC 163 Para 7

…separate transactions, the sentences should as a rule be imposed cumulatively unless the totality principle would require another approach: R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159.…
Forward v Bower
[2007] WASC 205

…g v Western Australia (2006) 32 WAR 246 Lowndes v The Queen (1999) 195 CLR 665 Pop v The Queen [2000] WASCA 283 R v Foster (2001) 33 MVR 565 R v Ward [1999] WASCA 157 R v Zamagias [2002] NSWCCA 17 Ratcliff v The Queen (Unreported, WASC Library No 980651, 3 November 1998)…
Ashworth v The State of Western Australia
[2006] WASCA 36

…sonment were "well within the range of sentences that could have been imposed". His Honour added that in light of what had been said by Malcolm CJ in R v Ward (1999) 109 A Crim R 159 at 160 about the need to firm up sentences for the offence of burglary committed on people's homes, it was difficult to see how a se…
Wong v The State of Western Australia
[2004] WASCA 286

…Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Everett (1994) 73 A Crim R 550 R v Smith (1988) 33 A Crim R 95 R v Ward [1999] WASCA 157 Samuel v State of WA [2004] WASCA 154 Schlenka v The Queen [2004] WASCA 142…
Downey v The Queen
[2002] WASCA 59

…The Queen (1993) 20 WAR 201 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Ward [1999] WASCA 157 Wade v The Queen [2001] WASCA 252…
Hintz v The Queen
[2002] WASCA 38

…665 Nevermann (1989) 43 A Crim R 347 R v Duff [1999] WASC 124 R v VC (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999 R v Ward [1999] WASCA 157 Taylor v The Queen, unreported; CCA SCt of WA; Library No 990091; 16 February…
Eastley v The Queen
[2001] WASCA 355

…Crim R 83 Osland v The Queen (1998) 197 CLR 316 Pearce v Stanton [1984] WAR 359 R v Latham [2000] WASCA 338 R v Liddington (1997) 18 WAR 394 R v Ward [1999] WASCA 157 Skrajnic (1994) 71 A Crim R 347 The Queen v Ward [1999] WASCA 157…
Eades v The Queen
[2001] WASCA 205

…CLR 665 Miles v The Queen (1997) 17 WAR 518 Mill v The Queen (1988) 166 CLR 59 Puls v The Queen [2000] WASCA 11 R v Peterson [1984] WAR 329 R v Ward [1999] WASCA 157 Ruane v R [1979] 1 A Crim R 284 Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996 Trescuri v R [1999] WASCA 172…
Longley v The Queen
[2001] WASCA 71

…0 A Crim R 41 R v Evans, unreported; CCA SCt of WA; Library No 920616; 24 November 1992 R v Lomax [1998] 1 VR 551 R v Miceli [1998] 4 VR 588 R v Ward [1999] WASCA 157 R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 RHMcL v The Queen (2000) 174 ALR 1 Shaw v R (1989) 39 A Crim R 343 Wagen…
Moro v The Queen
[2001] WASCA 44

…ing offences. They had occurred on separate occasions some 42 days apart and they were of a totally different character from the driving offences. In R v Ward (1999) 109 A Crim R 159 (at [9]) Malcolm CJ said in relation to sentences for aggravated burglary which were separated in time:…
Byrns v The Queen
[2000] WASCA 246

…7) 17 WAR 518 Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997 Postiglione v The Queen (1997) 189 CLR 295 R v Ward [1999] WASCA 157 Thorp v The Queen, unreported; CCA SCt of WA; Library No 970584; 5 November 1997 Urquhart v The Queen, unreported; CCA SCt of WA; Library No 950484;…
Maniaci v The Queen
[2000] WASCA 195

…SCt of WA; Library No 980475; 27 August 1998 Poole v The Queen [1999] WASCA 46 R v Langridge (1996) 87 A Crim R 1 R v Storey [1998] 1 VR 359 R v Ward [1999] WASCA 157 Van Thong Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Veen (No 2) (1988) 164 CLR 465…
LUMAI v The Queen
[2000] WASCA 193

…0 September 1997 Nguyen v R [1999] WASCA 54 Pezzino v The Queen (1997) 92 A Crim R 135 R v King [2000] WASCA 130 R v Peterson [1984] WAR 329 R v Ward [1999] WASCA 157 Smith v The Queen, unreported; CCA SCt of WA; Library No 960742; 20 December 1996 Verschuren v The Queen (1995) 17 WAR 467 Wroblewski v The Queen (19…
R v CW
[2000] WASCA 81

…60153; 22 March 1996 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 72 ALJR 1416 Podirsky (1989) 43 A Crim R 404 R v Richards [1999] WASCA 105 R v Ward [1999] WASCA 157 R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 Shaw v R (1989) 39 A Crim R 343 Smedley v R; R v Smedley, unreported; CC…
McColl v The Queen
[1999] WASCA 306

…AR 196 R v Halliday, unreported; CCA SCt of WA; Library No 980143; 3 April 1998 R v Liddington (1997) 18 WAR 394 R v Peterson [1984] WAR 329 R v Ward [1999] WASCA 157 Richards v R [1999] WASCA 105 Scognamiglio (1991) 56 A Crim R 81 Weng Keong Chan (1989) 38 A Crim R 337…
Oldham v The Queen
[1999] WASCA 304

…x parte Attorney General [1997] 2 Qd R 277 R v Mitchell (1994) 72 A Crim R 200 R v Richards [1999] WASCA 105 R v Ruane (1979) 1 A Crim R 284 R v Ward [1999] WASCA 157 R v Weng (1989) 38 A Crim R 337 Symonds v The Queen, unreported; CCA SCt of WA; Library No 980616; 28 October 1998 Tsagaris v The Queen, unreported;…
"W" (A Child) v The Queen
[1999] WASCA 235

…55 CLR 499 M (A Child) v R [1999] WASCA 111 R v Chan (1989) 38 A Crim R 337 R v Ruane (1979) 1 A Crim R 284 R v Shaw (1989) 39 A Crim R 343 R v Ward [1999] WASCA 157 Smedley v R, unreported; CCA SCt of WA; Library No 990146; 23 March 1999…

View all 23 citing cases →

Cases cited in this decision · 2 of 2 shown

Heferen v The Queen
[1999] WASCA 81

…Heferen v R [1999] WASCA 81 Nguyen v R; Tran v R [1999] WASCA 54 Pezzino v R (1997) 92 A Crim R 135 R v Grein [1989] WAR 178 R v Peterson [1984] WAR 329 Ruane v R (1979) 1 A Crim R 284 Shaw v R (1989) 39 A Crim R 343 Van Thong Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Nil…
Nguyen v R
[1999] WASCA 54

…Heferen v R [1999] WASCA 81 Nguyen v R; Tran v R [1999] WASCA 54 Pezzino v R (1997) 92 A Crim R 135 R v Grein [1989] WAR 178 R v Peterson [1984] WAR 329 Ruane v R (1979) 1 A Crim R 284 Shaw v R (1989) 39 A Crim R 343 Van Thong Dao v R, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Nil…

Legislation cited in this decision · 0

No legislation cited in this case.