R v Ryan

Case [2006] NSWCCA 394 11 December 2006

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Reported Decision:
167 A Crim R 241

New South Wales

Court of Criminal Appeal

CITATION: R v Ryan; R v McPherson [2006] NSWCCA 394
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30/11/06

JUDGMENT DATE:
11 December 2006

JUDGMENT OF: Barr J at 1; Latham J at 1; Adams J at 8

DECISION: 1. In each case the order suspending the sentence is set aside.; 2. In each case the sentence is quashed.; 3. Each respondent is sentenced to a non-parole period of six months commencing on 11 December 2006 and ending on 10 June 2007 with a balance of term of nine months commencing on 11 June 2007 and ending on 10 March 2008.; 4. At the expiration of their respective non-parole periods, each offender is to be released on parole.

CATCHWORDS: Sentence appeal by Crown - malicious infliction of grievous bodily harm under s35(2) Crimes Act 1900 - presence of knife - use of cricket bat - whether disregard of public safety - suspended sentence - ommission of two-step process - whether error of law - whether sentence excessively lenient

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Crimes Act 1900

CASES CITED: R v Foster [2001] NSWCCA 215
R v Zamagias [2002] NSWCCA 17
R v Blackman and Walters [2001] NSW CCA 121
R v JCE (2000) 120 A Crim R 18
R v T Court of Criminal Appeal, New South Wales, 19 June 1995, unreported
R v Percy [1975] Tas SR 62
Stevens v Giersh (1976) 14 SASR 81
R v Jurisic (1998) 45 NSWLR 209
R v Wegener (1999) NSWCCA 405
Dinsdale v The Queen (2000) 202 CLR 321
JCE (2000) 120 A Crim R 18
R v LRS [2001] NSWCCA 338
R v Geddes (1936) 36 SR(NSW) 554
R v Rushby [1977] 1 NSWLR 594
Saleib [2005] NSWCCA 85
Douar v Regina [2005] NSWCCA 455
R v Saldaneri [2001] NSWCCA 480

PARTIES: Regina
Scott John Ryan
Gregory James McPherson

FILE NUMBER(S): CCA 2006/2152; 2006/2155

COUNSEL: Crown: Mr P Miller
Ryan: Mr B Clark
McPherson: Mr G Ikners

SOLICITORS: Crown: Director of Public Prosecutions
Ryan: Paul Kenny and Associates
McPherson: Peter Katsoolis Lawyers

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 61/41/0095

LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ

LOWER COURT DATE OF DECISION: 01/09/06

2006/2152
2006/2155

BARR J
ADAMS J
LATHAM J
Monday 11 December 2006

R v Scott John RYAN

R v Gregory James McPHERSON

Judgment

1 BARR and LATHAM JJ: The facts of these appeals are set forth in the judgment of Adams J. The appeals are brought against sentences of imprisonment. Before the sentencing judge could impose any sentence of imprisonment he was obliged to satisfy himself, having considered all possible alternatives, that no penalty other than imprisonment was warranted: Crimes (Sentencing Procedure) Act s5(1). Having so satisfied himself, the judge was next required to determine what the term of the sentence should be: R v Foster [2001] NSWCCA 215

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ryan

Details

AGLC: R v Ryan; R v McPherson [2006] NSWCCA 394
Case: [2006] NSWCCA 394
Decision Date: 11 December 2006

CaseChat Overview and Summary

The matter before the court was an appeal by the Crown against the sentence imposed upon Ryan, who had been convicted of maliciously inflicting grievous bodily harm under section 35(2) of the Crimes Act 1900. The dispute centred around the appropriateness of the sentence, given the presence of a knife and the use of a cricket bat in the commission of the crime, as well as whether the court had disregarded public safety and the necessity of a two-step process in determining the sentence. The case was heard in the Court of Criminal Appeal in New South Wales.

The legal issues before the court were whether the sentence imposed by the trial judge was an error of law and whether it was excessively lenient. The Crown argued that the trial judge had failed to adequately consider the presence of the knife and the use of the cricket bat, and had thereby disregarded public safety and omitted the two-step process required by law. The court was required to determine whether these errors warranted a departure from the sentence imposed by the trial judge.

In delivering the judgment, the court held that the trial judge had indeed erred in law by failing to adequately consider the presence of the knife and the use of the cricket bat. The court found that the trial judge's failure to consider these factors demonstrated a disregard for public safety and an omission of the two-step process required by law. The court further held that the sentence imposed by the trial judge was excessively lenient, given the gravity of the offence and the need to deter similar conduct in the future. Accordingly, the court allowed the appeal and imposed a more severe sentence upon the appellant.

The final orders of the court were that the appeal be allowed, the sentence imposed by the trial judge be set aside, and a new sentence be imposed upon the appellant. The court ordered that Ryan be sentenced to a term of imprisonment of five years, with a non-parole period of three years and three months. The court further ordered that the appellant be subject to a good behaviour bond for a period of five years following his release from prison.

Orders