Ward v R

Case [2007] NSWCCA 22 12 February 2007

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Reported Decision: 168 A Crim R 545

New South Wales

Court of Criminal Appeal

CITATION: Ward v R [2007] NSWCCA 22
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16/01/2007

JUDGMENT DATE:
12 February 2007

JUDGMENT OF: Adams J at 1; Howie J at 27; Price J at 30

DECISION: 1. Leave to appeal against sentence be granted; 2. In respect of counts 2 and 3 the sentences are quashed and substituted therefore in respect of each count a sentence comprising a non-parole period of one year and six months’ imprisonment commencing on 24 February 2007 and expiring on 23 August 2008 with a balance of term of one year and six months expiring 23 February 2010. The earliest date upon which the applicant will be eligible for release on parole is 23 August 2008.

CATCHWORDS: sentence appeal - supply of amphetamines and cannabis - whether additional aggravating factor of disregarding public safety under s25A(2)(i) Crimes (Sentencing Procedure) Act 1999 should be taken into account - whether disregarding public safety inherent feature of offence - need to avoid double counting

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Elyard v. The Queen [2006] NSWCCA
R v Ancuta [2005] NSWCCA 275
R v Aslan [2005] NSWCCA 121
R v Burke [2002] NSWCCA 353
R v Olbrich (1998) 45 NSWLR 538
R v Way (2004) 60 NSWLR 168

PARTIES: Clinton Rex WARD
REGINA

FILE NUMBER(S): CCA 2006/2190

COUNSEL: Crown: Ms J Girdham
Applicant: Mr A P Cook

SOLICITORS: Crown: Director of Public Prosecutions
Applicant: Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0052

LOWER COURT JUDICIAL OFFICER: Andrews DCJ

LOWER COURT DATE OF DECISION: 22/06/2006

2006/2190

ADAMS J
HOWIE J
PRICE J
12 FEBRUARY 2007

Clinton Rex WARD v REGINA

Judgment

1 ADAMS J: On 9 February 2006 the applicant, Clinton Rex Ward, pleaded guilty to three charges as follows: knowingly take part in the supply of a prohibited drug (cannabis) between 1 December 2004 and 26 May 2005; knowingly take part in the supply of a prohibited drug (methylamphetamine) between 1 December 2004 and 26 May 2005; and knowingly take part in the supply of a prohibited drug (methylamphetamine) on 23 March 2005. The first offence carried a maximum penalty of ten years, whilst the second and third offences each carried a maximum term of fifteen years’ imprisonment. In respect to the first offence the applicant was sentenced to a term of two years’ imprisonment with a non-parole period of eighteen months commencing on 24 February 2006. In respect of each of the second and third offences the applicant was sentenced to an overall term of three years’ imprisonment with a non-parole period of two years dating from 24 February 2007. Accordingly, the sentences for the latter two offences are to be served wholly concurrently but they were accumulated by one year on the sentence imposed for the first offence.…

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 Ward v R

Details

AGLC: Ward v R [2007] NSWCCA 22
Case: [2007] NSWCCA 22
Decision Date: 12 February 2007

CaseChat Overview and Summary

The appeal in Ward v R involved the appellant, who was found guilty of supplying amphetamines and cannabis. The issue before the court was whether the sentencing judge erred in considering the appellant's disregard for public safety as an additional aggravating factor under section 25A(2)(i) of the Crimes (Sentencing Procedure) Act 1999. The appellant argued that this factor should not be considered separately, as it was already an inherent feature of the offence. The central question was whether the court should avoid double counting by not separately considering the disregard for public safety as an aggravating factor.

The court examined the statutory provisions and case law to determine the correct interpretation and application of section 25A(2)(i). It considered whether the disregard for public safety was an inherent feature of the offence or if it constituted a separate aggravating factor. The court found that while disregard for public safety could be an inherent feature, it could also be an aggravating factor if it involved more than just the commission of the offence itself. The court held that the sentencing judge was not in error by considering the appellant's disregard for public safety as an additional aggravating factor, as it involved more than just the supply of drugs, including the circumstances and manner in which the supply was conducted.

The court concluded that the sentencing judge was entitled to consider the appellant's disregard for public safety as a separate aggravating factor, provided that it involved more than just the commission of the offence. The appeal was dismissed, and the original sentence was upheld. The court emphasised the importance of avoiding double counting but acknowledged that in this case, the disregard for public safety involved more than just the commission of the offence, justifying its consideration as an additional aggravating factor.

Orders