Ballard v R [2017] NSWCCA 310

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ballard v R [2017] NSWCCA 310 Hearing dates: 22 November 2017 Decision date: 13 December 2017 Before: Macfarlan JA at [1] Fullerton J at [2] Button J at [28] Decision: 1. Leave granted to amend the grounds of appeal. 2. Leave to appeal refused. Catchwords: CRIMINAL LAW – appeal against sentence - four offences of supply of a prohibited drug contrary – whether sentence is manifestly excessive Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Category: Principal judgment Parties: Lee Allen Ballard (Applicant) The Crown (Respondent) Representation: Counsel: P Lange (Applicant) N Adams (Crown)

Solicitors: Bannisters Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/364217 Decision under appeal Court or tribunal: District Court Date of Decision: 27 May 2016 Before: English DCJ File Number(s): 2013/364217

Judgment 1. MACFARLAN JA: I agree with Fullerton J. 2. FULLERTON J: On 27 May 2016, after being committed for sentence to the District Court for four offences of supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), the applicant was sentenced by English DCJ to an effective term of imprisonment of 6 years comprised of a non-parole period of 3 years, 10 months and 24 days. 3. The drug offences were committed on various dates between January 2013 and August 2013 as follows: * Count 1 – On 25 January 2013 at Jilliby, New South Wales, supply of a prohibited drug, namely 100 grams of methylamphetamine, with a total purchase price of $20,000. This offence attracts a maximum penalty of imprisonment for 15 years. * Count 2 – Between 4 May 2013 and 8 May 2013 at Ramsgate, supply of a prohibited drug, namely 100 grams of methylamphetamine. This offence attracts a maximum penalty of imprisonment for 15 years. * Count 3 – Between 7 June and 14 June 2013 at Lithgow, supply of a prohibited drug, namely 28.4 grams (1 ounce) of MDMA, with a total purchase price of $2,500. This offence attracts a maximum penalty of imprisonment for 15 years. * Count 4 – Between 9 August 2013 and 19 August 2013 at Moorebank, supply of more than the indictable quantity of a prohibited drug, namely 1,000 pills (between 200 and 300 grams) of Methorphan, with a total purchase price of $10,000. This offence attracts a maximum penalty of imprisonment for 15 years. 1. In respect of Count 4, her Honour took into account a further offence on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that on 3 December 2013 at Frenchs Forest, New South Wales, he knowingly dealt with proceeds of crime, being $10,800 in cash, contrary to s 193B(2) of the Crimes Act 1900 (NSW). 2. The following sentences were imposed: * Count 1 – Imprisonment for 3 years and 9 months, commencing 10 February 2016 and expiring 9 November 2019, with a non-parole period of 2 years and 3 months expiring 9 May 2018. * Count 2 – Imprisonment for 3 years and 9 months, commencing 10 May 2016 and expiring 9 February 2020, with a non-parole period of 2 years and 3 months expiring 9 August 2018. * Count 3 – A fixed term of 18 months, commencing 10 November 2015 and expiring 9 May 2017. * Count 4 – Imprisonment for 5 years and 3 months, commencing 10 August 2016 and expiring 9 November 2021, with a non-parole period of 3 years, 1 month and 24 days expiring 3 October 2019. 1. After orders for partial accumulation of the sentence of all counts and a finding of special circumstances, an effective sentence of 6 years with a non-parole period of 3 years, 10 months and 24 days was imposed. 2. The application for leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), initiated by the filing of a notice of appeal on 15 March 2017, has had a chequered history in this Court. There have been multiple breaches of orders made by the Registrar for the filing and serving of materials in support of the application on what was, at that time, the sole ground of appeal, namely that by reason of the applicant's medical condition his incarceration has proved more onerous than was appreciated at the time of sentence. There have also been multiple applications before the Registrar for adjournments and an application to vacate the hearing of the appeal before this Court, pending what was said to be the need to obtain updated medical evidence to be relied upon as fresh evidence on the hearing of the appeal. 3. As recently as 9 November 2017, the applicant applied to the Registrar to vacate the hearing date of 22 November 2017. That application was refused. The applicant was advised that he should be ready to proceed on 22 November 2017 and that any application to vacate the date should be made to the Court at the hearing. 4. On the afternoon of 21 November 2017, the applicant's newly retained counsel advised the Crown and the Court that he intended to abandon the sole ground of appeal upon which leave was to be sought and that he would not be relying upon the detailed written submissions that had been filed by his predecessor. He further advised that on the hearing of the appeal he proposed to seek leave to amend the grounds of appeal and substitute a fresh ground of appeal, namely that the sentence imposed on Count 4 was manifestly excessive. 5. On the hearing of the appeal, the Crown did not oppose leave being granted to amend the grounds of appeal but submitted that leave to appeal should be refused and the appeal dismissed. 6. The Court resolved to permit the applicant's counsel to advance the arguments foreshadowed in his written submissions filed in support of the contention that the sentence imposed on the fourth count was manifestly excessive, being "unreasonable and plainly unjust", and to reserve the question whether leave should be granted to amend the notice of appeal until the Court had the opportunity to consider the merits of the application. 7. With some considerable reluctance, I have resolved that leave should be granted to permit the applicant to challenge the sentence on the fourth count as manifestly excessive. I would, however, refuse leave to appeal, there being in my view insufficient merit in the submissions advanced in support of the contention that the sentence on the fourth count is "unreasonable or plainly unjust". I am of that view irrespective of whether the focus is on the sentence for that discrete drug supply or on the total effective sentence imposed which comprehends the overall criminality constituted by that offending and the three drug supply offences that preceded it in time.