Ward v R [2007] NSWCCA 22

Ward v R [2007] NSWCCA 22

The sentencing judge erred by separately counting disregard for public safety as an aggravating factor where, in the circumstances of the applicant's drug supply offences, that feature was inherent in the offences or added nothing beyond the quantities involved and the planned or organised criminal activity. That error alone would not have led to a lesser sentence on independent assessment, but the appeal succeeded because the sentencing judge's finding of special circumstances was not given effect in the overall non-parole period. The sentences on counts 2 and 3 were therefore quashed and restructured to preserve the overall term while reducing the overall non-parole period.

Jurisdiction
Australia
Judgment Date
12 February 2007
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal against sentence granted; appeal allowed in part; sentences on counts 2 and 3 quashed and substituted.
Legal Topics
['drug Supply' 'prohibited Drugs' 'aggravating Factors' 'disregard for Public Safety' 'double Counting' 'special Circumstances' 'non Parole Period']
['criminal Law' 'sentencing'] ['drug Supply' 'prohibited Drugs' 'aggravating Factors' 'disregard for Public Safety' 'double Counting' 'special Circumstances' 'non Parole Period']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by treating the offences as committed without regard for public safety under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 as a separate aggravating factor.' 'Whether treating disregard for public safety as a separate aggravating factor involved double counting because it was inherent in the drug supply offences or already reflected in quantity, planning and organisation.' 'Whether the sentencing judge failed to give effect to the finding of special circumstances by setting an overall non-parole period that did not reflect the intended variation of the statutory ratio.']

Ratio Decidendi

The sentencing judge erred by separately counting disregard for public safety as an aggravating factor where, in the circumstances of the applicant's drug supply offences, that feature was inherent in the offences or added nothing beyond the quantities involved and the planned or organised criminal activity. That error alone would not have led to a lesser sentence on independent assessment, but the appeal succeeded because the sentencing judge's finding of special circumstances was not given effect in the overall non-parole period. The sentences on counts 2 and 3 were therefore quashed and restructured to preserve the overall term while reducing the overall non-parole period.

Court Disposition

Leave to appeal against sentence granted; appeal allowed in part; sentences on counts 2 and 3 quashed and substituted.

Orders

  • ['Leave to appeal against sentence be granted.' "In respect of counts 2 and 3 the sentences are quashed and substituted therefor 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...