Ward v The The King - [2022] NSWCCA 290

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ward v R [2022] NSWCCA 290
Hearing dates: 16 November 2022
Date of orders: 21 December 2022
Decision date: 21 December 2022
Before: Basten AJA at [1];
Harrison J at [2];
Fagan J at [3]
Decision:
(1) Grant leave to appeal against sentence.
(2) Allow the appeal.
(3) Quash the sentence imposed in the District Court on 7 May 2021 and in lieu thereof sentence the applicant to imprisonment for a term of 5 years and 6 months commencing on 20 August 2020 and expiring on 19 February 2026 with a non-parole period of 3 years and 3 months expiring on 19 November 2023. The earliest date upon which the applicant would be eligible for parole would be 19 November 2023.

Catchwords:
CRIME – sentence appeal – where the applicant pleaded guilty to one count of specially aggravated break and enter – whether error in considering the impact of the applicant’s mental health on his moral culpability – no error shown –manifest excess – consideration of comparable cases committed in a domestic setting – sentence plainly unjust – resentenced

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Harper v R [2017] NSWCCA 159
Hunter v R [2020] NSWCCA 285
Kelly v R [2007] NSWCCA 357
McDonald v R [2014] NSWCCA 127
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Campbell [2014] NSWCCA 102
R v Cheh [2009] NSWCCA 134
R v Ford [2020] NSWCCA 99
R v Primmer [2020] NSWCCA 50

Category: Principal judgment
Parties: Braydin Ward (applicant)
Rex (respondent)
Representation:
Counsel:
S Fraser (applicant)
E Jones (respondent)
Solicitors:
McAneny Lawyers (applicant)
Director of Public Prosecutions (respondent)

File Number(s): 2020/183342
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court Wollongong

Jurisdiction:

Criminal

Date of Decision:

7 May 2021

Before:

Acting Judge Delaney

File Number(s):

2020/183342

JUDGMENT

BASTEN AJA: I agree with Fagan J.
HARRISON J: I agree with Fagan J.
FAGAN J: Braydin Ward applies for leave to appeal against a sentence of imprisonment ordered by Delaney ADCJ in the District Court at Wollongong on 7 May 2021. The applicant pleaded guilty to one count of specially aggravated break, enter and commit serious indictable offence – contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence was committed on 21 June 2020. The circumstance of special aggravation was that the applicant wounded the female occupant of the dwelling. The maximum penalty is 25 years and a standard non-parole period of 7 years is prescribed. After allowing a discount of 25% for the early plea of guilty his Honour imposed a sentence of 8 years with a non-parole period of 4 years and 9 months.
The sentencing judge took into account the following offences on a Form 1:

Intentionally damage property, on 21…

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 The The King

Details

AGLC: Ward v The The King [2022] NSWCCA 290
Case: [2022] NSWCCA 290
Decision Date: 21 December 2022

CaseChat Overview and Summary

The applicant, Ward, appealed against his sentence imposed for a specially aggravated break and enter offence, which involved breaking into a house and committing an indecent act. The case was heard in the High Court of Australia. Ward argued that the sentencing judge had erred by not sufficiently considering his mental health when assessing his moral culpability. The central issue before the court was whether the sentencing judge had correctly assessed the influence of Ward's mental health on his moral culpability and whether the sentence was just and appropriate in light of the circumstances.

The court examined the sentencing judge's approach to Ward's moral culpability and found no error in the consideration of his mental health. The court noted that the sentencing judge had given significant weight to Ward's mental health and its impact on his culpability. The court also emphasised that the offence was of a manifest excess, committed in a domestic setting, which warranted a severe response. After reviewing comparable cases, the court concluded that the sentence was plainly unjust. Consequently, the court allowed the appeal, quashed the original sentence, and ordered a resentencing.

Orders