Director of Public Prosecutions v Ryan (No 2)
[2024] ACTSC 94
•8 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Ryan (No 2) |
Citation: | [2024] ACTSC 94 |
Hearing Date: | 25 March 2024 |
Decision Date: | 8 April 2024 |
Before: | Christensen AJ |
Decision: | See [58]. |
Catchwords | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated act endangering health (choking, suffocating, or strangling another person) – aggravated assault occasioning actual bodily harm – family violence – offending in breach of good behaviour order made under a suspended sentence – Drug and Alcohol Treatment Order had been declined as unsuitable – cancellation of good behaviour order – imposition of suspended sentence – Bugmy considerations – term of imprisonment and nonparole – rehabilitation through a parole order |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24(1), 28(2)(a), 63 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 34B, 35, 65, 80T Family Violence Act2016 (ACT) Preamble |
Cases Cited: | DPP v Jewell [2023] ACTSC 348 DPP v Ryan [2024] ACTSC 75 Elyard v The Queen [2006] NSWCCA 43 Mammoliti v Callaghan [2022] ACTSC 259 R v Bugmy [2013] HCA 37 R v Henry (1999) 46 NSWLR 346 |
Parties: | Director of Public Prosecutions ( Crown) Karl William Ryan ( Offender) |
Representation: | Counsel A Brown ( Crown) G Le Couteur ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 265 of 2023 |
CHRISTENSEN AJ:
Introduction
Karyl William Ryan is to be sentenced in respect to two family violence offences involving his then partner, who will be identified by the pseudonym “Bella Brown”. The offending occurred in April 2023 and involved two charges –
(a)Aggravated act endangering health (choking, suffocating, or strangling another person) contrary to s 28(2)(a) of the Crimes Act 1900 (ACT); and
(b)Aggravated assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT).
In summary, the acts of family violence involved Mr Ryan strangling Ms Brown and striking her a number of times to the head, causing her to lose consciousness, and occasioning injuries to her face and lip.
The Offences
These acts were committed in the home of Ms Brown. At the time of the offending, Mr Ryan and Ms Brown had been in a relationship for approximately 12 months.
On 22 April 2023 at about 10:15am, Mr Ryan and Ms Brown were in the loungeroom of the house. Conversation arose between them which included Mr Ryan saying to Ms Brown, “why are you so aggressive towards me” and she replied, “stop talking shit”. There was conversation about money that Mr Ryan believed Ms Brown owed him. This led to Ms Brown saying to Mr Ryan, “have you gambled it, like last time?”
During his conversation, Mr Ryan walked into the spare bedroom to get dressed. Ms Brown followed and came to be in the hallway off the bedroom. Mr Ryan said to her, “are you telling me to get out again”.
Before Ms Brown could respond, Mr Ryan entered the hallway and pushed her against the wall. He then forcefully placed his hand on her neck, which caused her to experience difficulty with breathing. The pressure to the neck caused redness, minor abrasions and bruising.
Mr Ryan then struck Ms Brown in the face with a closed fist. As a result of this strike, she felt “everything spinning” and she lost consciousness. When she regained consciousness, she was on her back in the middle of the hallway. Mr Ryan then jumped on top of Ms Brown and proceeded to punch her with a closed fist. The punches made contact with her head and face. The force of the closed fist punches was an eight out of ten, with ten being the most force she had ever felt before.
Ms Brown covered her face and screamed “get off me”. She could feel blood coming from her face as a result of the punches. She grabbed Mr Ryan’s penis and squeezed it tight to get him off her. Mr Ryan said, “let my dick go” and Ms Brown replied, “get off me and get the fuck out”.
Mr Ryan got off Ms Brown, allowing her time and space to rush to the main bedroom and barricade herself against the door to prevent any further assaults. She called triple zero. While on the phone, Mr Ryan forced his way past the door and gained access to the bedroom. Ms Brown told him to “get out” and he complied and left the house. Ms Brown then sent a text message to her mother whilst she was on the floor of the bedroom.
Police arrived at about 10:52am and assisted Ms Brown. They observed her to have sustained a severe cut to the left side of her lip, which was actively bleeding. This cut has since healed into a minor scar. Ms Brown also had red marks and cuts to the right side of her neck and severe swelling to the left side of her forehead. Police observed blood smeared on the wall and multiple pictures mounted on the wall were askew. A large amount of hair believed to have come from Ms Brown was located on the rug on the floor in the middle of the hallway.
Police conducted enquiries to locate Mr Ryan. On 24 April 2023 at about 1:00pm, he was located at an address in Narrabundah and he was arrested. He was remanded in custody from this date and has remained in custody since then.
Impact on Ms Brown
In addition to the physical injuries, Ms Brown has experienced significant emotional harm. The extent of this is set out in a statement that was tendered on sentence, and it is a powerful expression of the immediate and longer term impacts she has experienced from this offending.
Ms Brown describes that the scars on her face are a permanent reminder, with which she is faced every time she looks in the mirror. This makes it a struggle for her to move on. She is also reminded when asked to explain the scar and she experiences responses and opinions from others that are disrespectful. Ms Brown is left feeling “naked, frightened, judged, and vulnerable”.
Ms Brown further describes that she is trigged by yelling and frightened to speak up for herself because she is afraid. There are days she feels unable to go outside to the shops or work, that she is ashamed and wants to hide. She forces herself to as she needs to get dinner or to work. She does this knowing that she is heightened and believing that others will see through the mask that she wears to stay safe in her mind.
Ms Brown concludes:
I want to go back to a time where I was okay, where I could talk to my partner or about him without judgment from everyone, but I can’t. I want to not be afraid, but I can’t. I just wish it would all go away, but [it] can’t.
So I’m stuck between worlds – the past were I was hopeful and happy, and reality. [Domestic violence] impacts very aspect of your life in every way and I don’t see it changing any time soon.
I’m sorry I couldn’t go into more detail but I shouldn’t have to. Why? Because it shouldn’t have happened […] I’m sorry I don’t want to be labelled a victim because hearing or reading that word alone takes what little strength I have left.
This statement suggests that Ms Brown has a way to go in fully appreciating that it is Mr Ryan who is solely responsible for his violent conduct. However, the courage and strength Ms Brown demonstrates suggests that she is someone who will not allow Mr Ryan’s conduct to define her.
Nature and Circumstances of the Offences
These acts of family violence by Mr Ryan were serious examples of such offending. It was a protracted incident that came only to an end by Ms Brown forcing Mr Ryan to stop, and even then, once he desisted from the physical assault, he pursued Ms Brown to the bedroom. He did, however, then leave the house when requested by Ms Brown.
The act of strangling was not, relatively, lengthy in duration, but it was sufficient to cause more than an experience of breathing difficulties. There were physical impacts caused to Ms Brown’s neck. The act was not isolated, and it was a rapid escalation in responding with family violence during a conversation with his then partner.
The act of assault involved multiple forceful applications of force to a vulnerable part of the body. Ms Brown was particularly vulnerable, having been attacked unexpectedly, and while she was on the floor with Mr Ryan on top of her. The assault resulted in not insignificant bodily harm that involved bleeding and a scar, and, as shown in the photographs, multiple areas to the head that sustained a level of harm.
There are aspects of the offending that might typically be regarded as being of aggravation, in particular that it involved a breach of trust. But I am cautious to avoid the issue of “double counting” by treating these characteristics as aggravating factors where they merely reflect the policy underlying family violence offences: see Elyard v The Queen [2006] NSWCCA 43 at [10] and Mammoliti v Callaghan [2022] ACTSC 259. Rather, the aspects of seriousness that inherently inform family violence offending are reflected in the higher maximum penalty that applies: DPP v Jewell [2023] ACTSC 348 at [46].
Subjective Circumstances
Personal Background
Mr Ryan is now aged 28 years. He was aged 27 years at the time of the offending.
He reports a difficult childhood, with his father passing away when he was aged 10 years and having a strained relationship with his mother. He has had limited contact with his mother and two siblings in the past five years. However, in recent times he has reconnected with his mother and has spoken to her occasionally while being incarcerated.
Mr Ryan disclosed that there was alcohol abuse and family violence in his family. This led to him becoming homeless at 12 years of age. As a result, he was unable to complete schooling beyond year 9. He did gain several online qualifications later and he is interested in obtaining a Year 12 certificate equivalent to pursue a career in architectural engineering.
As an adolescent, Mr Ryan began to engage in drug use. I accept that the dependency he now experiences was not reflective of ‘personal choice’ but was attributable to early addiction: R v Henry (1999) 46 NSWLR 346 at [273]. Mr Ryan has smoked cannabis since he was 14 years old and began using heroin at age 16. He used methamphetamines sporadically throughout his 20s, and he also reports a period of alcohol misuse and use of Valium. His drug use continued until periods in custody where he has been mostly abstinent. A urinalysis test from February 2024 returned a negative result for all illicit substances.
Mr Ryan has engaged in sporadic short-term positions of employment but has been unemployed for approximately four years. A physical injury he sustained in a violent attack has impacted on his ability to engage in employment. He also reports having epilepsy and is recorded as receiving medication for this. He is undergoing medical assessments as to the seizures he experiences.
Mr Ryan also has challenges with his mental health. He has been diagnosed with complex post-traumatic stress disorder and receives medication for this. He reports having been diagnosed with schizophrenia, although a doctor considers that his symptoms are related to illicit substance use. Health services describe Mr Ryan as having had a family history of significant mental health disorders.
Mr Ryan informed a report writer for the pre-sentence report prepared for a previous sentence proceeding that he had “found some success in reducing his drug use by engaging in interventions during his early 20s, [but] he believed that he would not benefit from any further interventions in relation to his drug use”.
More recently, Mr Ryan has recognised the need to address his drug use, as well as his mental health challenges. During the assessment for an intensive correction order, Mr Ryan expressed a motivation to complete a number of specific interventions, including engagement with drug rehabilitation, a men’s behaviour change program, and engagement with a psychologist. However, he was enrolled in a drug rehabilitation program while in custody and reportedly refused to attend. His ability to engage with other custodial programs has not been possible due to limited availability of places.
However, Mr Ryan has positive goals for his future, stating to the report writers that he wants to address his unresolved issues and stop taking his feelings out on others who do not deserve it. He also shows willingness to deal with his past traumas because he knows that is where “the anger comes from”. Mr Ryan expresses that he wants to “get off everything and start fresh”.
It is also relevant to observe that Mr Ryan is socially isolated. He is considered at high risk of general reoffending and community corrections indicated “concerns regarding victim safety should Mr Ryan be released to the community”. Mr Ryan is described as requiring significant community-based support to reduce his future risk of general
re-offending. Community corrections did provide that, overall, Mr Ryan presented as insightful regarding many of his risk factors and motivated to obtain support in these areas.
Bugmy Principles
It was submitted on behalf of Mr Ryan that the court would find his moral culpability reduced on account of his childhood exposure to extreme violence and alcohol abuse: R v Bugmy [2013] HCA 37 at [43] and [44]. The prosecution made no submissions against such a finding.
I am satisfied that the material establishes on the balance of probabilities that Mr Ryan experienced a background of deprivation and social disadvantage. There is an explanation for the offending behaviour such that his moral culpability is reduced. Accordingly, the weight which would ordinarily be given to punishment, denunciation and general deterrence will be moderated in favour of other sentencing purposes such as rehabilitation.
Criminal History
Mr Ryan’s criminal history commences with offending in April 2019 involving family violence acts committed in NSW. In relation to those offences, Mr Ryan was placed on a community correction order.
Mr Ryan was then convicted of the offences of reckless threat to kill, choke, suffocate or strangle another person and common assault in July 2022. Concerningly, these acts of family violence were committed on Ms Brown, the same partner as in the current offending. These acts of family violence were committed in July 2022.
These previous convictions disentitle Mr Ryan to any leniency for current offences and raise for concern that the previous community-based orders, and periods of imprisonment, did not seemingly lead to Mr Ryan gaining insight as to the seriousness of his family violence offending, nor achieve rehabilitation.
Breach
The current offending was in breach of a 24 month good behaviour order imposed with a 6 month term of imprisonment that was suspended after 3 months and 1 day. This was for the offence of choke, suffocate or strangle committed in July 2022.
Applying s 110 of the Crimes (Sentence Administration) Act2005 (ACT), the court is obliged to cancel the good behaviour order and to either impose the suspended sentence attached to the good behaviour order or resentence the offender for the offence: DPP v Hagen (No 2) [2023] ACTSC 386 at [18].
The original offending also occurred in Ms Brown’s bedroom, at a time when they had been in a relationship for approximately five months. During the course of an argument, Ms Brown came to be braced on a window frame and positioned on her knees. Mr Ryan sat down on the edge of the bed and wrapped his legs around her neck and then squeezed them together. His legs got tighter and tighter and Ms Brown asked him to stop two times before her voice started to change and she would not speak. Mr Ryan said he was just trying to hug her, and she asked him to leave her alone.
The offending in breach of the order was committed some five months after the order was imposed and after the release from custody on the partially suspended term. It was a breach by reoffending of similar behaviour that occurred a relatively short time into the suspended term of imprisonment and good behaviour order.
Mr Ryan’s compliance with the order otherwise is described as mostly unsatisfactory, involving failing to report for supervision as directed. I also observe that the information provided in the pre-sentence report provides that Mr Ryan did not successfully complete the NSW community-based sentence. Mr Ryan’s explanation is that he could not attend appointments due to COVID-19 border restrictions. Overall, the previous engagement with community-based orders in ACT and NSW does not give confidence as to a commitment to comply with such orders.
I conclude that the suspended sentence must be imposed. This was, appropriately, conceded by the defence representative.
Other Relevant Sentencing Considerations
The maximum penalty for the offences, being offences statutorily aggravated by family violence, is 7 years imprisonment.
The Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) also sets out particular matters that the court must consider in sentencing this offender for family violence offences: s 34B. Relevantly here, in respect to the Preamble to the Family Violence Act2016 (ACT), I observe that the considerations include that family violence is best addressed through such things as promoting the accountability of perpetrators of family violence.
Plea of guilty: ss 33(1)(j) and 35 of the Sentencing Act
A plea of guilty was entered in the Magistrates Court, although this was after an initial plea of not guilty and a brief of evidence having been prepared. A hearing date was never set and the plea of guilty arose as a result of negotiations between the parties. The matter came to be committed for sentence to the Supreme Court for the purposes of consideration of a Drug and Alcohol Treatment Order.
While not the earliest plea of guilty, it is one that had utilitarian value. I assess the appropriate discount as being approximately twenty percent.
Demonstrated Remorse: s 33(1)(w) of the Sentencing Act
In the reports, Mr Ryan is described as appearing to somewhat minimise the offending and as someone who did not appear to demonstrate victim empathy. He attributed the offending to general escalating conflict and illicit substance use by both parties. Mr Ryan said that he used illicit substances after waking up on the morning of the offending and that he became “angry, defensive and violent” under the influence of cannabis. He did though acknowledge that “I was in the wrong and should not have done what I did”.
In a letter provided to the court, the weight of which is to be considered in a context of it being unsworn and in the context of the other information as to Mr Ryan’s insight and intentions, Mr Ryan does describe having gained a level of insight and remorse during his period in custody. He says:
I would like to start by saying I’m profusely sorry to the courts and [Ms Brown] and the community for my actions […] I feel deeply ashamed and guilty for allowing my actions and my emotional instability to get the better of me.
I wish with all my heart and every fibre of my being that I could undo what I have done. But I can’t, I can only learn from my mistakes.
[…]
From an early age I have struggled with drugs, addiction and mental health issues and have never had the strength to seek rehabilitation however until now. Being in here has forced my getting clean and sober for which I am genuinely thankful for.
[…]
I know I still have a long way to go but I want you to know I have made a start and will not stop until I am healed as can be both mentally and emotionally.
[…]
I promise that from henceforth I will do all I can to be the best I can be.
Pre-Sentence Custody
Mr Ryan was remanded in custody from the date of arrest on 24 April 2023 and has remained in custody since then: see above at [11]. A total of 350 days, or 11 months and 15 days, is to be taken into account: s 63 of the Sentencing Act.
Determination
I am readily satisfied that there is no penalty other than imprisonment that is appropriate. Appropriately, no submission contrary to this conclusion was made. The penalty for offences of family violence, particularly of the nature that were committed here, must be met with condign punishment that reflects denunciation of such conduct, and that serves as a deterrence to both the offender and, typically, others who engage in this insidious form of conduct.
The determination in respect to Mr Ryan becomes one of how the total term of imprisonment is to be served. Here, there are distinct acts of violence for which terms of imprisonment are to be imposed, as well as a period of imprisonment to be imposed arising from the imposition of the suspended sentence. The totality of the aggregate sentence is to be just and appropriate, with an order that meets the other purposes of sentencing: s 7 of the Sentencing Act.
Mr Ryan had sought that the term of imprisonment, if eligible in terms of the length of the term, be served by way of a Drug and Alcohol Treatment Order. Assessments occurred for the purposes of this, however, it has been determined by this Court that Mr Ryan was not suitable for a Treatment Order in accordance with s 80T of the Sentencing Act:DPP v Ryan [2024] ACTSC 75. Mr Ryan did not seek remittal for sentence in the Magistrates Court, but rather, sought that the Supreme Court proceed to determine the sentence.
An assessment was also undertaken in respect to Mr Ryan’s suitability to undertake an intensive correction order. Mr Ryan was found unsuitable for such an order due to not having suitable accommodation and his significant dependency with a controlled drug. Community corrections expressed concern that the strict conditions of an intensive correction order would be likely setting Mr Ryan up to fail.
There is seemingly an unjustness to the situation Mr Ryan finds himself in. He is not suitable for a Treatment Order to address his illicit substance abuse as appropriate accommodation is not available or able to be provided, and he is not suitable for an intensive correction order because of his illicit substance abuse.
The intentions Mr Ryan has to engage with rehabilitation to address a core criminogenic risk are regrettably not able to be provided for, at least by way of a Drug and Alcohol Treatment Order or an intensive correction order. The court is limited in its ability to give effect to the legislated purpose of sentencing to promote the rehabilitation of the offender in the circumstances: s 7(1)(d) of the Sentencing Act.
Having said that, a sentencing disposition that enables for lengthy community-based supervision involving requirements of rehabilitation is available through a parole order. The court must set a nonparole period if sentencing the offender to two or more terms of imprisonment that total one year or longer: s 65 of the Sentencing Act.
I have given consideration as to whether a recommendation as to a drug rehabilitation program condition be made for Mr Ryan’s parole, but I have decided against this. That is not to say that Mr Ryan should not seek to engage in such a rehabilitation if he has a commitment to it. Rather, it is apparent that Mr Ryan requires support in a broad range of areas, and it will be a matter for the sentence administration board to determine the rehabilitation and support needs to be targeted upon and during parole.
Mr Ryan, please stand.
Orders
For those reasons, the Court makes the following orders:
(1)In the proceeding of CC 7105/2022, the breach of the Good Behaviour Order entered on 22 November 2022 is proven.
(2)In the proceeding of CC 7105/2022, the Good Behaviour Order entered on 22 November 2022 is cancelled.
(3)The conviction of Karl William Ryan of chokes, suffocates, strangles another person (CC 7105/2022) is confirmed and a sentence of 2 months 29 days imprisonment is imposed to commence from 24 April 2023 and end on 22 July 2023.
(4)Karl William Ryan is convicted of intentionally and unlawfully choke, suffocate or strangle another person (Family Violence) (CAN 4035/2023) and he is sentenced to 36 months imprisonment, reduced from 45 months on account of the plea of guilty, to commence from 23 July 2023 and end on 22 July 2026.
(5)Karl William Ryan is convicted of aggravated assault occasioning actual bodily harm (Family Violence) (CAN 4036/2023) and he is sentenced to 18 months imprisonment, reduced from 22 months on account of the plea of guilty, to commence from 23 January 2026 to 22 July 2027.
(6)The total sentence is 4 years 2 months 29 days imprisonment, commencing from 24 April 2023 and ending on 22 July 2027.
(7)A nonparole period of 28 months is set to commence on 24 April 2023 and end on 23 August 2025.
[Her Honour then spoke directly to the offender]
Mr Ryan, it is a matter for you if you want to engage in rehabilitation programs upon your release, you will have the opportunity to engage with them whilst you are in AMC, but those options are there for you.
You have recently gained insight into what areas you need to look at. It is not only obviously the drug offending but the matters that happened in your childhood and other things related to that. You have made a promise to the Court, which is also to the community, that you are going to address those matters and so I hope that is what you will do.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Christensen Associate: J Liu Date: |
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