Director of Public Prosecutions v Ryland

[2014] VCC 845

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

NESTOR RYLAND (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 June 2014
CASE MAY BE CITED AS:	DPP v Ryland
MEDIUM NEUTRAL CITATION:	[2014] VCC 845

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Finnigan
For the Offender	Mr J. D. Williams

HER HONOUR:

1Nestor Levi Ryland, you have been found guilty by a jury of one charge of incest, one charge of common assault and two charges of indecent act, one with a child under 16 and the other with a child aged 16 or 17 who was within your care and control.   You also pleaded guilty before the jury to two charges of producing child pornography.

2The maximum penalty for each of the charges is as follows:  in relation to the charge of incest, 25 years' imprisonment; in relation to the charges of indecent act with or in the presence of a child under 16, 10 years' imprisonment; for the charge of indecent within the presence of a child aged 16 or 17 years under your care, control or authority, 10 years' imprisonment; the charge of common assault, five years' imprisonment; and for the charge of producing child pornography, 10 years' imprisonment.

3This offending occurred in the family home which you shared with your wife, your step-daughter, the complainant in these matters, and your twin children, a boy and girl, who were some eight years younger than the complainant.  The context of your offending was a rigidly disciplined and controlled family environment with enforcement involving physical punishment or fear of physical punishment. 

4You frequently swore at the complainant and hit her with your hands or anything else that you could have within your reach.  These violent outbursts would occur regularly through the complainant's childhood.  You used a black belt for disciplinary purposes, which you called Mr Black.  You used it also to threaten the children and it was left in evidence hanging over the door of the younger children's bedroom. 

5You ransacked the complainant’s bedroom on a number of occasions, pulling everything out of her cupboards, desk and book case on to the floor.  She was not allowed to have anything to do with boys, nor was she permitted to have a mobile phone, and when in Year 11 you discovered that she did have a mobile phone you removed the door from her bedroom and put it in a shed.  From that time on she had no privacy and she was not permitted to have a key to the house.  That meant that when she arrived home from school, she would have to wait in the back yard until somebody who had the privilege of the right of entry could let her in.

6Her windows were screwed shut from the outside after she went to the pictures with a boy from school when they were in Year 8 or 9, having told your wife that she was going with a girlfriend.  The actions which you took in relation to that outing form the context for Charges 2, 3 and 4 on the indictment. 

7You also attended her school at various times to check up on her, and on one occasion you ransacked her locker, having demanded to know the combination of the padlock which secured it.  You then threw everything out on the floor from her locker in front of a number of fellow students because she had shared her homework with another student.  That incident caused her a great deal of stress due to the public nature of it.

8When in Year 11 your step-daughter had an interest in a Muslim boy and obtained literature in relation to the Muslim faith which she had sent to a friend of hers. You, on discovering that her mail had been going to her friend's house, gathered the literature, drove to the friend's house and burnt it publicly on the driveway in front of their house and in front of the friend's father.

9In addition to these excessive disciplinary matters, you also secretly photographed the complainant when she was 17 years old sunbathing naked in the back garden - that relates to Charge 8 on the indictment - and you also persuaded her, with the assistance of your wife, to pose for photographs in various states of undress for you in your makeshift studio in the shed at the rear of your property.  That relates to Charge 6, and it occurred when your step-daughter was aged 15 or 16.

10It is in that context that the incident when the complainant went to the pictures with her male school friend occurred, and you committed the acts which form the basis of Charges 2, 3 and 4, having discovered your step-daughter walking towards home in broad daylight hand in hand with her friend who was a school companion.  You demanded that she get into the car and you drove her home immediately.  You took her into the house where a confrontation ensued involving you, her mother, Layla Ryland[1], and the complainant herself.

[1] A pseudonym

11Ms Ryland called her a liar.  She was sent into her bedroom and Ms Ryland then obtained an electrical cable and went into her room and struck her repeatedly with the cord repeating, "You are a liar."  Ms Ryland pleaded guilty to assault before this court.  Following that incident, Ms Ryland left the room, left the complainant in her bedroom and had a conversation with you.  The complainant could not hear what was said but she understood that there was some agreement reached about what was to happen.  You then re-entered the room and told her to get on the bed, which she did.  You then told her to pull down her pants, and when she refused to do so, you began to punch and hit her to the arms and chest, at which point she gave in to your wishes; she pulled down her pants but left them at her ankles and remained on the bed.

12You indicated to the complainant that you had your wife's agreement for what you were to do, and you told her that you were going to inspect her vagina for signs that she had engaged in sexual intercourse.  You pulled her legs apart and proceeded to examine her vagina using your index and third fingers.  You pressed on the inside of the outer lips of the vagina to open the vagina further, which caused her pain.  At some point you realised that she was menstruating, which satisfied you that she had not been having sexual intercourse, as, "No one would fuck a dirty bitch on their rags."  That examination is the basis of the charge of incest, which is Charge 3.

13You then made her sit on the bed.  You approached her, you pulled out your penis, and you stood so it was about afoot in front of her face. You masturbated and lectured her that there was no need to be curious, that "all cocks are the same."  At that time, the complainant was 14 or 15 years old, and that is the factual basis for the charge of indecent act with a child under 16, which was Charge 4.

14When she was 16 or 17, the complainant finished her last year of school, and in the summer before she was going to university in Bendigo, you suggested that she watch "The Lord of the Rings" with her, and you set out to watch the entire three movies in one night.  This occurred in the complainant’s bedroom.  During the film you began to talk to her about going away from home and that she would meet lots of boys and she would be having sex, and you wanted to know about her masturbatory habits.  You encouraged her and eventually persuaded her to show you how she masturbated.  She put her hands over the area of her vagina on top of her cotton pyjamas and showed you how she masturbated.  That incident represents the facts which constitute Charge 7, indecent act with a child of 16 or 17 under your care or authority.

15During this period of time, the complainant continued to attempt to have a friendly relationship with you in certain areas, as you both had an interest in art, and on occasions you assisted her with drawing and matters involved with her studies.

16I am to sentence you for the two charges to which you pleaded guilty before trial; the three charges which result from the complainant going to see a film with her school friend; and the charge in which you asked her to masturbate not long before she left home.  I say that to clarify that I do not sentence you in relation to the physical punishment, abuse and excessive control which forms the background to the family life in which the complainant was brought up.  It was a background which consisted of a demolition of her self-esteem in the family and in front of her friends at school from which she is still recovering.

17This is indeed serious offending which has had a devastating effect on the complainant.  She read her victim impact statement to the court, and the original document was tendered as Exhibit B on the plea.  She eloquently expressed her feelings of degradation and humiliation and her regret at having no relationship with her brother or sister or, indeed, her mother. 

18She described her inability to complete her university studies, as she was studying art, as I indicated, and every time she hears the sound of a camera shutter, it brings back memories of posing naked for you and you secretly photographing her sunbaking in the back garden.

19The complainant spent years feeling ashamed and blaming herself for the abuse and beatings and for being disowned by her mother but she ends her victim impact statement with a note of acceptance and optimism.  She indicates that testifying against her own parents has and will likely be the most difficult and defining choice she will ever have to make in her life.  She writes that she has chosen to change and decided to let go of the hurt and suffering of the past and to move on with her life, and she indicates she feels she has been given the gift of closure and she will now be able to continue.

20I take those matters, that is the effect that your offending had on the complainant, into account, and I do hope that she will indeed be able to move on with her life and out of the shadow of the events that bring you before this court.

21I now turn to matters personal to you.  You are now 50 years old and you have had a difficult childhood and upbringing.  You were born in Richmond, the eldest of three children, and you grew up in the Doncaster area.  You are not on good terms with your two younger siblings, but I note that your parents are both still alive but I do not know what your relationship is with them. 

22You were the subject of a care and protection application when you were eight or nine because of your behaviour, and that result in you becoming a State ward at Travencore for about three years during your primary school education, where you were subjected to both physical and sexual abuse.  You completed Grade 6 at Travencore and you then went on to the Essendon Technical College.  During your Form 1 year, you ran away and camped out near a river, as I understand it, before you were apprehended and placed in Baltara in your early teens.  You were then transferred to the Collingwood Educational Centre and then to Brunswick Technical College.  You were making progress towards home release and you did have a reunion with your family, which unfortunately failed, and you were again made a ward of the State. 

23When you were 14 or 15 you were sent to Turana and escaped several times.  You were then sent to the Mitcham Technical College and you lived at St John's Home for Boys.  When you were 15 you obtained employment at a record company and you then moved to St John's Working Boys Hostel.  Your work with the record company consisted of pressing vinyl records.  You also worked at a local supermarket but life was still difficult, and you eventually absconded from St John's at the age of 16 and found yourself independent accommodation.  At that time, you were involved in shoplifting and other minor crime and some case workers became involved with you. 

24Despite this very difficult beginning, which one can only imagine the difficulties that you encountered at that time, you gradually moved to live independently and work at another supermarket in the city for about two to three years until you were made redundant.  You always managed to find employment and eventually you started cleaning at night, and you started your own business.  At one time, you took about a year travelling around Australia and you remained in Mildura at some stage for about nine years.  You often worked as a disk jockey and you were always able and willing to obtain employment. 

25You returned to Melbourne in your late 20s and you again obtained cleaning work.  You started at a school, and you then became doorman at a bar for a period of time.  Following that, you started your own cleaning business in the early 90s which at one stage employed some 15 workers.  However, eventually you wound up your business as bigger cleaning contractors were impinging on your market.

26You then worked with a company, which involved you obtaining quotes for maintenance work, and during that employment, in 1999, you were asked as a one-off request to assist in cleaning for one night.  This had a disastrous effect because you were electrocuted, which resulted in you being thrown against a wall and causing serious injuries.  You were temporarily blinded in one eye, and the injuries to the left side of your body resulted in you suffering pain and loss of feeling.  You also developed post-traumatic stress disorder, and since that time you have not worked and have been on WorkCover payments, then Newstart allowance. 

27You have also not had good general health since that time and you suffered a heart attack some three years ago.  You had a stent inserted in 2011, and in early 2014, as I understand it, you suffered another heart attack.  You are therefore on medication for your heart, asthma and workplace injuries.  I take those health matters into account.

28I note that you have the continued support of your wife, and that you have been in custody since 11 April 2013, when you were arrested in respect of a charge of stalking your biological son.  You were given a good behaviour bond for a period of 12 months in relation to that matter and you remained on bail in respect of these matters for which I am sentencing you today until, as I understand it, you were committed to stand trial on 7 May 2013, and I will be corrected on those dates, if they are - - -

29MR WILLIAMS:  The bail was in fact revoked on the first day of the committal, which was 6 May.  That was an error in my - - -

30HER HONOUR:  The 6 May.  Sorry, until you were committed to stand trial on 6 May 2013.

31I note that you have spent the entire period of your remand in protection both at the Metropolitan Remand Centre and at Port Phillip Prison, which clearly renders any time that you have spent in prison to this point more difficult than you would find in normal circumstances.

32You have had a number of appearances before the courts of this state during the period between 1980 and 1990.  There are number of dishonesty offences, escape, assault and damage to property.  None of those appearances resulted in the imposition of any term of imprisonment to be served, and there is little in those previous appearances which would indicate that you would be before this court on such serious matters.

33In relation to your two younger children, I note that they were subject to Department of Human Services intervention and lived in foster care for some time. They are now 18, and as I understand it there are no proceedings pending.

34Your counsel made submissions that I should take into account in mitigation your pleas in relation to Charges 6 and 8 and, though this occurred at the start of the trial, you are entitled to some discount in relation to those two matters.  Your counsel further made submissions in relation to your bad health, in relation to the medication and the workplace injuries to which I referred earlier, and I note you also injured your hand while you were working in the custodial environment.

35Your wife, as I understand it, remains supportive and visits you in gaol, and of course you have by now spent a considerable time in prison, which will be taken into account and deemed as time served when I sentence you.

36Your counsel submitted that I should take into account the following factors in mitigation: your difficult background; your prospects of rehabilitation;, your pleas of guilty in relation to the pornography charges; your good employment record; your health and your age; and also the fact that the sexual offending involved your step-daughter and is therefore situational. 

37Counsel submitted you would not represent a risk to the community at large, thus increasing your prospects of rehabilitation if you attend to your anger management issues.  However, I also note that you have shown not a shred of remorse at any time in relation to this offending or to the fate of the complainant.

38I take into account all those matters, and I now turn to the matters I am required to take into account in sentencing people in this State.  Firstly, the principle of general deterrence; that is that anyone in this community who takes advantage of a child placed in their care and abuses them sexually, physically and/or emotionally must understand that the consequences for them will be serious.  Secondly, the principle of specific deterrence; that is that you must be deterred from committing such offences against anyone else.  I am also required to denounce your conduct on behalf of the community, and I do so.  That children growing up in a family situation should be subjected to such punitive parenting involving aggressive and invasive sexual interference is something this community will not tolerate.

39Having taken those matters into consideration, I am also required to impose just punishment in the circumstances.  I weigh up the matters that have been put on your behalf against the seriousness of the offending, the trauma suffered by the complainant and your lack of remorse.  In so doing I have reached the conclusion that the only appropriate penalty in these matters is one of a term of imprisonment to be served immediately. 

40I consider you to have had a total lack of empathy towards an adolescent girl on the threshold of her life, who it appears has been crushed by your treatment of her.  It is to be hoped that she will find the strength to live a fulfilling life despite the trauma that she has been subjected to.

41I have also taken into account the principles of cumulation and totality in deciding on an appropriate sentence, and one which reflects the total criminality involved in this offending.

42Also you will, as a result of being sentenced, be subject to reporting in relation to the Serious Sexual Offenders legislation, and I will hand you down documentation informing you of your obligations when I have sentenced you.  So could you please stand for me now, Mr Ryland.

43I am taking Charge 3 as a base sentence.  On Charge 3, which was the charge of incest, you are convicted and sentenced to five years' imprisonment. 

44On Charges 2 and 4 which occurred in the same time as the initial sentence for which I sentence you, the initial Charge 3, on Charge 2, assault, you are convicted and sentenced to 12 months' imprisonment, and I order that four months of that be served cumulatively on the five years. 

45In relation to Charge 4, which was the indecent act with a child under 16, you are convicted and sentenced to 18 months' imprisonment, and six months of that is to be served cumulatively on the base sentence and the sentence in Charge 2. 

46In relation to Charge 6, which was produce child pornography, you are convicted and sentenced to 18 months, and I order that three months of that be served cumulatively on the base sentence and other charges. 

47Charge 7, which was the indecent act in the presence of a child aged 16 or 17, you are convicted and sentenced to 18 months' imprisonment, and I order that four months of that be served cumulatively on the base sentence and other sentences. 

48On Charge 8, which was also produce child pornography, you are convicted and sentenced to 12 months.  I order that three months of that be served cumulatively on the base sentence and other sentences.

49That is a total effective sentence of six years and eight months.  I order that you serve five years and three months before being eligible for parole.

50Just take a seat now for a moment.  The total days of presentence detention to today?

51MR WILLIAMS:  395 days, Your Honour.

52HER HONOUR:  I declare that 395 days presentence detention be deemed time served, and that that fact be entered into the records of the court. 

53In relation to s.6AAA I declare that in relation to Charges 6 and 8, which were the pornography charges, but for your plea of guilty, on Charge 6 I would have sentenced you to two years' imprisonment, and on Charge 8 I would have sentenced you to 15 months' imprisonment.  That completes the sentence.

54I understand there are some ancillary orders.

55MS FINNIGAN:  Yes, Your Honour.  There was a disposal order under s.464ZF, order for retention.

56HER HONOUR:  Yes, I couldn't lay my hands of that.  So I will make the section - - -

57MS FINNIGAN:   I may have a copy.

58HER HONOUR:  Have you got a copy there?

59MS FINNIGAN:  I may, Your Honour, yes.

60HER HONOUR:  I make those orders.  The disposal order will be made of property listed in the schedule.

61MS FINNIGAN:  They were handed up on previous occasions, Your Honour.

62HER HONOUR:  Yes, they were.

63MS FINNIGAN:  So there may need to be an amendment made to the date on the draft order.

64HER HONOUR:  Right.  In relation to the s.464ZF(2) application, Mr Ryland, I am going to make an order in relation to that section, that is that you undergo a forensic procedure for taking a scraping from the mouth for obtaining for placement on the database.  I do that having considered the seriousness of the circumstances of this offending, and I am satisfied that in the circumstances the making of the order is justified for the following reasons:  the seriousness of the circumstances of the offending warrant the order.  I don't know whether it's opposed.  I think it was opposed, was it?

65MR WILLIAMS:  No, it wasn't, Your Honour.

66HER HONOUR:  The order is not opposed, and the granting of the order is in the public interest.  I also have to inform you that if at the time of a request to be able to take that sample under the supervision of an authorised police member, an authorised member of the Police Force may use reasonable force to ensure that it is conducted if you do not consent at the time.

67So I will make that order.  The disposal order relates to the matters set out in the schedule, which are photographs, hard drives, a DVD and  computers. 

68OFFENDER:  May I speak to (indistinct)?

69HER HONOUR:  Yes.  You go and talk to your client.  In relation to the s.6AAA, I haven't said what the non-parole period would be, because it all becomes too convoluted.

70MS FINNIGAN:  Yes, Your Honour.

71HER HONOUR:  And I'm not going to enter into that mathematical exercise.  But it would suffice to say it would have been more.  I think I informed Mr Ryland that his reporting obligations would be for life.

72MR WILLIAMS: Yes, Your Honour.

73HER HONOUR:  If I didn't, that's what they are.  Is there anything that I have failed to address?

74MR WILLIAMS:  Not in relation to the sentence, Your Honour.  There was an application for an Appeals Costs Fund certificate when the plea was first listed, and my client had suffered an injury in the prison, and Your Honour reserved your decision.

75HER HONOUR:  Yes.

76MR WILLIAMS:  So I would seek a ruling in relation to that application.  If Your Honour requires further evidence, there was a certificate faxed through to the court form St Vincent's as I understand it on the day.

77HER HONOUR:  Yes.

78MR WILLIAMS:  That is 16 April.  I do have the notification of emergency presentation from my client's medical prison file if Your Honour wants to see that, but that's the application.

79HER HONOUR:  All right.  This matter is legally aided, is it?

80MR WILLIAMS:  It is.

81HER HONOUR:  I'll grant that application.

82MR WILLIAMS:  If Your Honour pleases.

83HER HONOUR:  Just for the day of the plea that had to be deferred.

84MR WILLIAMS:  Yes, Your Honour.

85HER HONOUR:  I think that completes everything.  We'll just get Mr Ryland to sign these documents. 

86Ms Ryland, there is nothing else I am going to say.  I just hope that you are able to now get on with your life.  Thank you.

87MS RYLAND:  Thank you.

88MS FINNIGAN:  Perhaps if the link could be terminated, Your Honour.

89HER HONOUR:  Yes, we'll terminate the link now.  You can take Mr Ryland now, thank you.

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