R v Ryall

[2002] NSWCCA 168

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Ryall [2002]  NSWCCA 168

FILE NUMBER(S):
60261/01

HEARING DATE(S):               7 May 2002

JUDGMENT DATE: 07/05/2002

PARTIES:
Regina v Richard John Ryall

JUDGMENT OF:       Kirby J Smart AJ    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          00/41/0223; 00/41/0236

LOWER COURT JUDICIAL OFFICER:     Goldring DCJ

COUNSEL:
(A)  S J Odgers SC
(C)   P G Ingram      

SOLICITORS:
(A)   Graham W Howe & Co
(C)   S E O'Connor

CATCHWORDS:
Sentencing - malicious wounding and detain for advantage - accumulation of sentences - proportionality of sentences with those of co-offenders - applicant's dominant role and greater criminality justifying much heavier sentence

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted - Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

Tuesday, 7 May 2002

REGINA      V      RICHARD JOHN RYALL

JUDGMENT

1. KIRBY J:  I will ask Smart AJ to give the first judgment.

1. SMART AJ:  Richard John Ryall seeks leave to appeal against the asserted severity of a sentence of imprisonment for two years commencing on 28 April 2000, with a non-parole period of fifteen months on a charge of malicious wounding, and a sentence of imprisonment for five years, commencing on 28 July 2001 with a non-parole period of three years on a charge of detain for advantage.

1. The head sentences total, in effect, six years and three months and the non-parole periods four years and three months. The maximum penalty for malicious wounding is seven years imprisonment and that for detain for advantage under the repealed s 90A of the Crimes Act 1900 is twenty years, reducing to fourteen years if it is proved to the judge that the person was liberated without having sustained any substantial injury.  The judge was not satisfied that there was substantial injury, and proceeded on the basis that the maximum penalty was fourteen years.

Malicious Wounding

1. In early March 2000 the applicant befriended the victim, Alan Coady, and allowed him to live in the garage at the rear of the applicant’s premises in Parkes Street, Oak Flats.  The Crown case was that on 20 March 2000 the victim’s car had mechanical problems, so the victim was allowed by the applicant to borrow his car and drive to Campbelltown to see his children.  The victim did so, being accompanied by another person.

1. While the victim was visiting his family the travelling companion took the applicant’s vehicle, leaving the victim behind.  The victim had a relative drive him back to the applicant’s premises, where he was met by the applicant and some co-offenders.  The applicant ordered the victim to leave his premises and sought the return of the applicant’s car, which the victim denied having, and explained what had happened.  The applicant contended that his car was stolen by the victim.

1. The victim was set upon by a co-offender and assaulted a number of times.  The applicant assaulted the victim severely, kicking and punching him in the head area.  It was a merciless attack.  The applicant stabbed the victim through his ear lobe, twisting the knife.  The victim was assaulted further by the applicant, who had put gloves on because his hands were too sore.  Eventually the co-offenders told the applicant to stop.  They feared that he was going to kill the victim, who was bleeding from the stab wound to his ear, his eyes, his nose and inside his ears.

1. The victim was conveyed to Shellharbour Hospital by two co-offenders, with strict orders not to let him out of their sight and to bring him straight back to the applicant’s premises upon release from hospital.  The victim was admitted to Shellharbour Hospital and later transferred to Wollongong Hospital, where he was kept in overnight for observation.  He was too scared to say anything to anybody until he read that the applicant was in custody on another matter.

1. The Surgical Registrar who attended the victim in Wollongong Hospital has written:

   “Examination revealed bilateral peri-orbital haematomae, grazed right ear and forehead.  No evidence of facial fracture or closed head injury.

   Normal CT scans and x-rays.

   Treated with observation, ADT, simple analgesia and wound dressing.

   ... these injuries were of a serious nature and consistent with blunt trauma to the head – both eye sockets and face – such as from a blunt instrument or fist.”

   While there was some dispute about the background facts, there was no dispute about the assault and its severity.

Detain For Advantage

1. The victim, David Bagster, first came into contact with the applicant in the latter part of 1999.  On Saturday 22 April 2000 he was alone at his parents’ residence in Kiama when, at about 7 pm, five offenders, including the applicant, gained entry to that residence, assaulted the victim to the head and body, and forcibly drove him to the applicant’s premises at Oak Flats.  The victim escaped down the road, but he was pursued by the applicant and co-offenders, caught, and returned to the applicant’s premises.

1. He was taken to the rear of the garage, where his clothing was stripped from him, a rag jammed in his mouth, and his hands and feet tied with nylon rope.  He was stood up on a chair.  He was seriously assaulted a number of times by the applicant and others to the head and body.  The applicant tied half a Besser block of concrete to the victim’s penis.  The block was dropped but it did not touch the ground.  This particular torture continued for thirty to forty-five minutes.

1. During this time, neighbours of the applicant visited and were shown the victim strung up in the garage.  The applicant said, “This is what we do to rapists”.  The neighbours were distraught.

1. Eventually the victim was untied and ordered to shower. Whilst in the bathroom the victim held his head and a handful of hair came out. Upon completion of his shower, the applicant gave the victim some clothes to wear. Around 7 pm on Monday 24 April 2000 the applicant had some visitors arrive. He instructed one of the co-offenders to take the victim out to the garage and tie him up. This occurred. However, after a short time, the victim was able to untie himself and escape. He contacted his mother on the morning of 25 April 2000, and she collected him from Albion Park.

1. On 26 April 2000 he reported the matter to the police.  On 27 April 2000 the applicant consulted Dr Healey, who has written:

   “On the 27 April 2000 I attended a male, David Bagster, following an alleged abduction/assault.

   On examination the patient was suffering tenderness over the sternum.

   The injuries were abrasion to the left wrist, burns to the left foot, superficial laceration right forearm and abrasion to shaft of penis.

   No treatment was required.”

2. The applicant’s account in his record of interview, particularly from Q and A 225 to Q and A 359 of what was done to the applicant and what the applicant did to the victim is chilling.  It is apparent that the applicant was the principal moving party in the offence.  He directed the proceedings.  He was assisted by four others;  namely, Wayne Anthony Davey, Michael Patrick Barnett, Toni Goodwin and Shane Sonter.

1. In his evidence the applicant agreed that he had taken the law into his own hands on the two occasions in question.  On 19 March 2000 he went to Warilla Police Station and reported that his service medals, some of his mother’s jewellery, his motor vehicle and his wallet had been stolen.  Subsequently he reported to Warilla police that David Bagster had stolen his car.  The applicant said that at the time he was frustrated because he had informed the police at all times what was going on.  He went to Tenterfield with his lines of inquiry.  The officer in charge there tracked his vehicle down and telephoned him, saying that his vehicle had been found in The Rocks.  The applicant organised with the police there to retrieve his vehicle, which had been trashed.

1. The applicant said he experienced a lot of frustration and at that time believed he was justified in what he did to the two young men.  The applicant said that he now realised he was not justified in doing what he did.  He said that he was full of remorse and regretted his actions.  In future, even if the system worked slowly, he would leave matters to the law enforcement authorities.

1. The applicant said that he was told that a young lady whom he knew had been raped by Mr Bagster.  As a result, the applicant said that he made inquiries to find out where Mr Bagster was.  A number of people in two vehicles went to his house.  The applicant said that he was angry.

1. The applicant was born on 14 September 1948.  His previous convictions comprised one offence in 1980 and one in 1981 of driving whilst exceeding the prescribed concentration of alcohol, and malicious injury in 1986.  He was also subjected to an Apprehended Violence Order for six months in 1986 in respect of a lady.  The applicant’s record is thus one which entitles him to a measure of leniency.  He has had nothing since 1986 and the previous matters were well spaced, and at the lower end of the scale.

1. The judge took into account that the applicant had pleaded guilty.  The judge said that the sentence in respect of the offence of take and detain for advantage would be six years:

   “... but because of the plea of guilty it will be reduced to five years.

   ... it is not the maximum discount available because Mr Ryall did not plead guilty at the first opportunity on these matters and there was an exceptionally strong case against him
   ... “

2. The judge did not purport to give a separate discount in respect of the offence of malicious wounding.  He gave a discount for the pleas on both counts in respect of the charge of detain for advantage.  Theoretically, that is open to objection.  Each offence and each sentence should be correct in itself.  If the judge was going to take the course which he did, which has practical advantages and avoids refinement, he had to consider the question of the discount for facilitating the administration of justice against a total sentence of eight years.  On that basis, the discount granted was about twelve and a half per cent.

1. The applicant was on active service in Vietnam during the Vietnam War.  That has blighted the whole of his subsequent life.  As a result of his war service, he has suffered a serious psychological injury which, despite subsequent treatment, has persisted.  The treating consultant psychiatrist has written:

   “... as a result of his Vietnam War experience Mr Ryall suffers from a chronic post-traumatic stress disorder and that when he is released from gaol on bail he can be admitted to the Eversham Clinic in Cremorne, Sydney, under my care, should this be required.”

2. The particular psychiatrist has extensive experience in dealing with the problems of Vietnam veterans.  The applicant said in his evidence that the Vietnam Veterans’ Association, which had been his lifeline, had arranged a place for him at the Eversham Clinic when he was released and that he would gratefully take up the offer of treatment, which would involve both the disorder mentioned and anger management. 

1. The applicant had an extensive employment record.  However, since 1994 he has been in receipt of a TPI pension as a result of his incapacity arising from his war service.  He was on daily medication.  During the 1980s he became an alcoholic.  He eventually went to Alcoholics Anonymous and he has not consumed an alcoholic beverage since mid-January 1990.  He has an adverse eye condition arising from a tumour.  He has lost the orbit of an eye.  He has lived in the Oak Flats area for many years and owns his home and the house next door.  He is divorced and has a daughter who is in her late teens.

1. There was some good character evidence.  The detailed letter from Mr C G Rewell is informative and sets out the difficulties which have beset the applicant since his conscientious service in Vietnam.  Mr Rewell mentions the break-up of the applicant's first marriage, about fifteen years ago, his determined effort to overcome his alcoholism, his problems with cancer, his failed and costly second marriage, when he brought out a lady doctor from Russia, his periods of depression, and his struggle to get through the days.  He had become lonely.  Mr Rewell said that the offences were quite alien to the applicant as he knew him. 

1. Mr M Morath, a director of a real estate agency, also knew the applicant well, having served with him in Vietnam.  He had kept in touch since.  He has written of the applicant:

   “He settled into society and achieved a high reputation in the coal mining industry.  He was responsible for the invention and marketing of a unique coal dust suppression machine.  He has travelled and worked in Australia and Africa as a result.

   John was hospitalised with eye problems, which I believe were of the tumour type, some five years ago.  I visited him in Royal Prince Alfred Hospital, Sydney, and met his then wife, who was finishing her training as an ophthalmic surgeon”.

2. Mr Morath also wrote of the applicant raising his daughter mostly on his own, his care of his elderly father, and his help of others less fortunate than himself.

1. The judge did not refer to this material.  It may not have been regarded as important in view of the gravity of the offences and the limited contact the referees had with the applicant.

1. The judge correctly regarded the offences as being high on the scale of criminality for such offences, with their seriousness perhaps heightened by the applicant taking the law into his own hands.  The judge, who had earlier sentenced the co-offenders, was alert to the principles of parity and proportionality as discussed in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1996) 189 CLR 295.

1. On 9 February 2001 the judge sentenced Toni Goodwin and Shane Sonter, consequent upon their plea of guilty to the charge of detaining for advantage in the same incident, to a suspended sentence of six months imprisonment.  The judge sentenced them on a version of the facts somewhat different from that on which he sentenced the applicant.  He had told them that the Warilla detectives wanted Bagster.  They believed that Bagster had raped a young lady.  The applicant demanded to know where Bagster was, and they told him.  He insisted that they accompany him to where Bagster was, and they did.

1. The judge said:

   “Bagster was there, tied up with rope, put in a car and they left the premises driving north, thinking that they were taking Bagster to the Warilla Police Station.

   ...

   Ms Goodwin needed to stop to get petrol and Mr Sonter was in Ryall’s car.”

The judge continued:

“Ryall then said to Ms Goodwin ‘I’ll meet you at my place’ and this was the first time that Mr Sonter knew they were going there.  When they did go there Bagster attempted to escape but was recaptured and taken to a garage where he was tied up.  Ms Goodwin went to the back of the garage.  Mr Sonter had assaulted Bagster at Kiama, although not at Ryall’s premises at Oak Flats.  Ms Goodwin assaulted him at Oak Flats where he was actually tied, in the back of the garage, with rope and apparently a Besser brick had been attached by a cord to his penis and he was being assaulted by Ryall and other persons, but neither Mr Sonter nor Ms Goodwin took part in that or were instrumental in it happening.”

1. The judge had earlier recorded when sentencing them:

   “It appeared that Bagster worked for .... John Ryall and the evidence suggests that Mr Ryall was a significant dealer in amphetamines, and indeed perhaps a manufacturer of amphetamine of some sort.  It is not in contention that Ms Goodwin at one stage did work for him in the drug trade.”

2. When the applicant was dealt with there was no suggestion of any involvement in drugs.

1. Both Sonter and Goodwin had drug problems.  After they saw what the applicant and his associates were doing to Bagster, they left the area.  Both were scared that the applicant would harm them.  When they heard the police wanted to talk to them, both voluntarily reported to the police.  Each had an extensive interview with the police and provided material evidence to be used in the trial of the applicant and Davey.  The judge correctly regarded their assistance as significant.  He described the part they played in the offence as “relatively minor”.  He also accepted that they were very angry about the vicious rape of the young girl with whom they were friendly.

1. The criminality of the applicant and that of Goodwin and Sonter differed significantly.  The applicant roped them in, deceived them and orchestrated the offence.  Goodwin and Sonter played a relatively minor part, whereas the applicant played a major part.  Goodwin and Sonter gave valuable assistance to the authorities.

1. On 16 February 2001 Michael Patrick Barnett received a six month suspended sentence.  He also pleaded guilty to a charge of detain for advantage and asked the judge to take into account a charge of failure to appear.  He gave himself up to the police when he learned that the applicant had been arrested.  Barnett was recruited by the applicant to come to his house and was picked up by Davey.  Barnett became involved with a group of people in going to find Bagster at a house in Kiama, assaulting him there, and forcibly taking him to the applicant’s premises at Oak Flats.  It was not alleged that Barnett took any physical part in the assault at Oak Flats.  He pleaded guilty at the first opportunity and offered to assist the police. The judge regarded the punishment he had imposed on Goodwin and Sonter as appropriate for Barnett.

1. On 6 April 2001, consequent upon a plea of guilty, the judge determined that Wayne Anthony Davey should receive a sentence of two years imprisonment for detaining for advantage, taking into account three other offences;  namely, maliciously wounding Alan Coady, knowingly take part in the supply of amphetamine, and possession of amphetamine.  At the date of sentencing he had served over eleven months in custody.  The judge directed the remainder of the sentence be suspended on his entering into a bond to be of good behaviour for that period.

1. The judge noted that Mr Davey did not plead guilty at the first opportunity and that there was a strong case against him.  In Davey, the judge noted that each of Goodwin, Sonter and Barnett had signed an undertaking to give evidence against the applicant and Davey.  In Davey’s case it was conceded by the Crown that Davey was not a party to the assaults on Bagster at Oak Flats.  He was, however, a party to the taking of Bagster at Kiama and taking him to Oak Flats.  There was evidence before the judge in Davey that the applicant was a supplier or manufacturer, or both, of amphetamines and exercised influence on a number of people in the Lake Illawarra area, including Barnett, Sonter, Goodwin and McKechnie.

1. Davey told the police that Bagster was detained because he owed money to the applicant for drugs and the facts tendered before the judge suggested that Coady was blamed for the same reason.  The applicant denied any involvement with amphetamines and all drug charges against him have, it seems, been withdrawn.  The judge did not take any drug matters into account when sentencing the applicant.

1. The judge thought that Davey was more closely involved in an assisting role than the other offenders.

1. On 7 February 2001 Glenn McKechnie received a six months suspended sentence of imprisonment for maliciously wounding Alan Coady.  He was present and held Coady while the applicant inflicted some very serious injuries on him.  McKechnie claimed that he prevailed upon the applicant to stop.  McKechnie took Coady to hospital for treatment of his injuries.  The judge regarded McKechnie’s role as relatively minor.  He was in custody on other matters when he heard about the charges laid against the applicant and voluntarily spoke to the police about the matter.  He pleaded guilty at the first opportunity.

1. McKechnie had a serious drug problem and serious health problems (epilepsy, serious brain injury, a stroke, other illnesses and depression).  He needed extensive support.  It was his serious medical condition that led to the judge giving McKechnie a suspended sentence.  Otherwise, the judge would have gaoled him for a fairly long period.

1. The applicant submitted that the lack of “due proportion” between the sentences imposed on the co-offenders (in particular, Davey) and that imposed on the applicant was such as to engender in him a justifiable sense of grievance.  The applicant accepted as to Goodwin, Sonter and Barnett that each was not involved in the malicious wounding, that the judge found that the applicant was the instigator, each did not take part in the more extreme tortures, each went voluntarily to the police, each had rendered assistance to the police and offered to give evidence against the applicant and Davey, and each had offered their pleas of guilty at an early date.  I would add that each appeared to be under the influence and domination of the applicant.  Further, Goodwin and Sonter were much younger.

1. The applicant accepted that it was to be expected that each of Goodwin, Sonter and Barnett would receive a lesser sentence than that imposed on the applicant.  However, it was submitted that the difference was too great and that he had a justifiable sense of grievance, due to lack of proper proportion between his sentence and that imposed on each of these three offenders.

1. As to the sentence imposed on Davey, the applicant pointed out that Davey was involved in both offences and that the Form 1 also included two serious drug charges.  Davey’s criminal history included firearms offences and an assault in 1995.  The applicant submitted that there was nothing to distinguish Davey in terms of the timing of the plea of guilty or the extent to which each was entitled to a benefit as a result. 

1. The applicant submitted that, on the judge’s findings in respect of the  offence of malicious wounding and that of detain for advantage, Davey’s total criminality was more serious.

1. The applicant pointed to this passage at page 6 of the judge’s remarks:

   “In respect of that malicious wounding of Mr Cody, (sic) Mr Davey received a sentence of two years and it seems to me appropriate, given the conclusion I have reached about the cumulation of sentences, that Mr Ryall should also be imprisoned for a period of two years with a non-parole period, given the special circumstances resulting from his health, he (sic) war service and the fact that this is first time that he has been in prison, of fifteen months.”

2. The applicant emphasised that the statement that as to the malicious wounding, Mr Davey received a sentence of two years was incorrect.  It was.  That offence was taken into account on the charge of detain for advantage.  Earlier, at page 4 of his remarks, the judge said:

   “Mr Davey pleaded guilty on the same day as Mr Ryall did.  Mr Davey was given I think on each of these charges a sentence of two years imprisonment of which about half was served and the remainder suspended and they were concurrent.”

3. That statement was also erroneous.  It was submitted that the statement made by the judge on page 6 of his remarks bore directly upon the parity/relationship issue.  It is apparent from the mistaken statements of the judge on pages 4 and 6 of his remarks that he became confused and that careful and accurate consideration was not given to the question of due proportion when the judge was reflecting on the sentence of Davey and those to be imposed on the applicant.

1. The applicant complained that the judge inverted the sentencing order suggested in Pearce v The Queen (1998) 194 CLR 610 at 614, when he said at page 5 of his remarks:

   “I am going to defer fixing a term until I have considered the issue of whether or not the sentences I impose should run concurrently.”

2. In Pearce at 624, McHugh, Hayne and Callinan JJ stated:

   “A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

3. The judge does not seem to have proceeded as set out in Pearce.  While I would always apply the approach in Pearce, it is, in some cases, particularly those of ongoing large-scale fraud, sometimes necessary to consider the sentences to be imposed on the various offences along with the question of concurrency.  This is to ensure that the sentences correctly reflect the total criminality and the principle of totality.  That was not a problem in the present case.

1. The judge did not advert overtly to the question of the principle of totality.  The mistakes made by the judge lead me to the view that this Court must reconsider the question of sentence.  Apart from the question of proportionality, the sentences imposed by the judge were the least sentences which could have been imposed having regard to the gravity of the offences and the applicant’s subjective features.  The sentences were rightly made concurrent.  The incidents were quite separate in their nature.  Each involved a different victim.

1. The critical question is whether the principle of due proportionality as explained in Postiglione at pp 301-302 requires a reduction in the applicant’s sentences. I interpolate that the applicant concentrated his attack on the sentence for detain for advantage.

1. The evidence disclosed:

(a)the applicant was the instigator of both offences and was the person who inflicted the severe punishment;

(b)as to the charge of detain for advantage, the applicant set out from his home and searched for the victim;  he recruited the other offenders to assist him;  he stated that the police were looking for the victim;  he determined that the victim should be forcibly seized and taken to the applicant’s home;

(c)the applicant orchestrated and directed the punishment which the victim was to receive.  That was brutal.  It took place in the applicant’s garage, using his equipment; 

(d)he led the group in taking the law into their own hands and in exposing the victim to humiliation;

(e)the applicant directed the victim in his clean-up and recovery from what had been done to him;

(f)the applicant kept the victim at his premises until the latter escaped;

(g)the applicant dominated the others in the group, who appeared to be either younger or dependent upon him, or both;

(h)the applicant was a mature man of resources and ability.  The references tendered by the applicant reinforce those matters.

1. I have not overlooked the particular submissions as to Davey.  While the sentences imposed on the co-offenders were light, that imposed on Davey was exceedingly so.

1. Mr Odgers emphasised that in one aspect Davey’s motives were baser than those of the applicant, in that Davey was motivated to assist in an endeavour to protect what might be described as a drug ring or a drug trade.  That, Mr Odgers submitted, was more blameworthy than a person who was trying to right a wrong.

1. Mr Odgers submitted that the proportionality was plainly wrong, particularly when regard was had to the sentence imposed on Davey.  He also submitted that a finding of special circumstances should be made to reflect the applicant’s post-traumatic stress disorder, and he pointed out that Mr Ryall had never been to prison before.

1. However, having regard to the factors which I have earlier enumerated, including the dominant position of the applicant, I have reached the conclusion that the sentences imposed on the applicant do not offend the principle of proportionality and that he is not entitled to any reduction by reason of the application of that principle  I regard the sentences imposed upon the applicant, including their accumulation and taking into account the principle of totality, as the least sentences which could have been imposed on the applicant, having regard to the exceedingly grave criminality revealed.

1. Accordingly, while I have found that the judge erred and would grant leave to appeal I would dismiss the appeal.

1. KIRBY J:  I agree.  The order of the Court will therefore be as proposed by Smart AJ.

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LAST UPDATED:     13/05/2002