R v Ryan

[2000] NSWCCA 5

Reported Decision: 110 A Crim R 262

New South Wales

Court of Criminal Appeal

CITATION:	R v Ryan [2000] NSWCCA 5
FILE NUMBER(S):	CCA 60629/98
HEARING DATE(S):	25/11/99
JUDGMENT DATE:	24 February 2000
PARTIES :	Regina Jodie Ann RYAN
JUDGMENT OF:	Sully J at 1; Hulme J at 2; Hidden J at 40

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

COUNSEL :	RA Hulme - Crown In person
SOLICITORS:	SE O'Connor In person
DECISION:	Leave to appeal granted; Appeal dismissed

- 18 -

IN THE COURT OF
CRIMINAL APPEAL

No: 60629 of 1998

SULLY J
HULME J
HIDDEN J

Thursday, 24 February 2000

REGINA -v- Jodie Ann RYAN
JUDGMENT

1    SULLY J: I agree with Hulme J.

IN THE COURT OF
CRIMINAL APPEAL

No: 60629 of 1998

SULLY J
HULME J
HIDDEN J

Thursday, 24 February 2000

REGINA -v- Jodie Ann RYAN
JUDGMENT

2    HULME J: On 13 October 1998 this Applicant for leave to appeal, who had been convicted by a jury of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, was sentenced by Her Honour Judge Latham to penal servitude for 6 years comprising a minimum term of 3 years commencing on 19.2.98 and an additional term of 3 years commencing on 19.2.2001. Her Honour strongly recommended that a condition of parole be the Applicant’s attendance at a residential drug rehabilitation place such as Guthrie House.

3    The offence for which this sentence was imposed occurred on 23 November 1997 when the Applicant apparently under the belief that the victim, a Mrs Childs, had stolen from her drugs and some $500, hit the victim very heavily on the head with a wheel lock. The victim suffered a large and deep laceration and a depressed skull fracture which required surgery. The Applicant denied that it was she who struck the blow, a denial she has maintained to the present. In light of this approach the sentencing Judge, inevitably, found the Applicant demonstrated a complete lack of contrition.

4    Also on 13 October 1998 Her Honour dealt with an appeal by the Applicant against a sentence, earlier imposed by a Magistrate, of a minimum term of imprisonment of 10 months and an additional term of 3 months. There is relatively little information before this Court concerning the offence which led to that sentence. It appears to have been a violent assault on another female, apparently in the context of a dispute over money and drugs. The offence which led to that sentence, apparently occurred in early 1998, (sometime before 19 February), and while the Applicant was on bail for the offence against Ms Childs.

5    Judge Latham vacated the orders of the magistrate, and in lieu thereof sentenced the Applicant to a fixed term of 10 months’ imprisonment, also dating from 19 February 1998. Her Honour’s reasons for her decision in this regard are not before this Court. Neither is there an appeal from that decision.

6    The Applicant originally appealed against both her conviction and her sentence in respect of the offence against Ms Childs; but the former appeal was abandoned and need not be further referred to. In support of her claim that the sentence imposed was excessive, the Applicant criticised certain aspects of Judge Latham’s remarks; and, to appreciate both the criticism and her Honour’s reasons, it is appropriate to quote from them.

7    What Her Honour said in that part of her reasons which is the subject of complaint was:-

“The entries recorded against her as an adult offender date from 1989 and continue throughout every year in between with the exception of 1997. On the whole they are property offences and minor drug offences…
In the last 2 years, however, there has been a disturbing trend emerging in the Prisoner’s criminal history which is characterised by this offence and by another offence of malicious wounding which is the subject of the severity appeal also before me today…
As I said, she has a long-term drug addiction, although there had been in the past some partial success at rehabilitation. Such evidence as I have with respect to rehabilitation arises out of a report under the hand of Anita Duffy dated 30 September 1998. That report refers to the Prisoner’s past attempts at rehabilitation and such lapses as there have been which, according to the Prisoner and Ms Duffy, appear to be associated with episodes of post natal depression…
I do not discount the possibility that the Prisoner’s personal circumstances have been the source of a long standing depression, perhaps aggravated from time to time by the depression which the care of young children often brings.
Perhaps one of the only hopeful signs in terms of the Prisoner’s willingness and commitment to overcome her personal circumstances is the fact she has in the past taken steps to further her education through courses at various TAFE colleges.
The Prisoner left school in year 10, but has since remedied that deficiency by completing year 10 and has expressed a desire to, at some stage, acquire the higher school certificate.
I accept also that the Prisoner is at an age when she may turn a corner and reject the lifestyle which she has so far lived by. Whether or not the Prisoner is sincere in that regard only time will tell. But I am satisfied that a longer than usual additional term is justified in light of the prospects of rehabilitation.
…

The offence was nonetheless a very serious manifestation of that particular crime. … this was a vicious attack aimed at the victim’s head where serious, and sometimes long term, injuries are inevitable inflicted by heavy blunt instruments …”

8    It was submitted that the finding of a “disturbing trend” was wrong and that the Applicant’s criminal record during the last 4 years was in fact better than at any prior time. Other criticisms were that her Honour had given inadequate recognition to efforts towards rehabilitation and improvements which had occurred over that period, and inadequate weight to psychological factors. It was also submitted that the finding that the blow was aimed at the victim’s head was wrong.

9    The Applicant was born in March 1971 and for much of the last 12 years has been a drug addict. The record of her antecedents which was before the Court reveals the following:-

1987	1 offence.
1988	11 offences including 2 charges of assault female and one of malicious wounding. On the latter charge, the Applicant was placed on recognisance and later in the year committed to an institution for 6 months on one of the assault charges.
1989	14 offences including assault occasioning actual bodily harm;. Assault; and assault and rob. On the first of these the Applicant was committed to an institution for 12 months; and on the last was sentenced to 18 months’ imprisonment with a non-parole period of 6 months from 17 July 1989. Later, periods of 4 months’ imprisonment from 31 December 1989 for dishonesty offences were imposed.
1990	2 offences.
1991	9 offences including one of common assault. For that and a number of other offences, sentences including minimum terms of 9 months from 20 June 1991 were imposed.
1992	6 offences. Fixed terms of imprisonment including some of 3 months seem to have been imposed on 3 March 1992.
1993	2 offences.
1994	11 offences including two of assault police and one of assault. The sentences imposed on those offences were fixed terms of 3 months from 20 August 1994. Other sentences imposed that year included minimum or fixed terms of 6 months from 20 August 1994.
1995	5 offences. These included three of self administration and 1 of possession of a prohibited drug in June, October and November. The fifth was of malicious wounding. That matter was dealt with in November 1996 and the sentence imposed was until the rising of the court.
1996	5 offences dealt with on 16 May and said to have occurred on 3 May. Three were of stealing and two were of assault, beat and ill-treat. On each charge the Applicant was sentenced to 75 hours’ community service.
1997	1 offence - that for which the Applicant stood for sentence.
1998	3 offences - one of which was the malicious wounding under appeal to Judge Latham.

10    It must be acknowledged that antecedent reports are not absolutely reliable in their detail. Particularly does this apply to the dates of offending. Furthermore, some offences may, in effect, be counted twice - once when a penalty is imposed or a warrant issued, and again when recording a failure to appear. However as an indication of the pattern of the Applicant’s offending, the above table is sufficient. The offences included in the number of offences, but not otherwise mentioned, were largely administration of drugs or relatively small offences of dishonesty.

11    A consideration of this record and the terms of the second paragraph quoted suggests that the “trend” to which her Honour referred was an increase in the seriousness of the Applicant’s offences of violence. Though there had been prior offences of that nature, if one puts aside, as I am inclined to do, the malicious wounding offence which occurred in 1995 - and which was in retaliation for assaults on her by a Darryl Christian who the Applicant met at about the time she was released from prison in about February 1995 and who introduced her to cocaine - the two offences to which Her Honour referred in that second paragraph would seem to have been substantially more serious. Thus I do not see any error merely in her Honour’s reference to “a disturbing trend”.

12    I turn to the claim that the Applicant’s record during the past 4 years has been better than at any prior time. Certainly there seem to have been fewer offences. On the other hand, the summary of the Applicant’s antecedents set forth above indicates that the longest period during which the Applicant may have been drug free was between 3 May 1996 and sometime before 23 November 1997, by which date the Applicant was, according to the evidence in her trial, again addicted to drugs. Even if one puts aside the offence of malicious wounding in November 1995, the offences in June, October, and November 1995 and those of May 1996 argue against the view that there had been much, if any, rehabilitation prior to May 1996.

13    Prior to May 1996, the longest period since 1987 apparent on the antecedent report when the Applicant was not in prison or committing offences is the period of 10 months from August 1993, although the evidence does not indicate whether this period was due to the absence of offending or to the absence of detection. It may therefore be said that the period of about 18 months between May 1996 and about November 1997 is of some significance. However, when one has regard to the third of the paragraphs I have quoted from the reasons of her Honour, it cannot be said that, at least in what she said, her Honour gave inadequate recognition to what was “partial success at rehabilitation”.

14    It was submitted that Judge Latham’s phraseology “perhaps one of the only hopeful signs”, and her reference to education through courses at TAFE colleges and not through anything else, indicated that her Honour did not have regard to the addressing by the Applicant of drug issues, and what is said to be a continuing commitment in that regard. However, the Applicant did not give evidence on sentence; and her Honour was conscious of Anita Duffy’s report which, with 5 certificates as to attendance at courses during the Applicant’s incarceration prior to trial, was the totality of evidence on these matters. Those certificates meant that a statement by Her Honour that Ms Duffy’s report was “such evidence as I have with respect to rehabilitation” was not strictly accurate; but most of the counselling reflected in the certificates was referred to by Ms Duffy, and I would not regard this error as significant.

15    Her Honour’s later reference to the issue of whether the Applicant is sincere in rejecting her previous lifestyle, and the making of the additional term a relatively large proportion of the Applicant’s total sentence, satisfy me that her Honour adequately addressed the topic of the Applicant’s efforts and approach towards rehabilitation.

16    Ms Duffy’s report was also the only source her Honour had as to the Applicant’s history, and the psychological factors which may have been causes of, or contributed to, her offending. In the report Ms Duffy refers to emotional scars the Applicant bears in consequence of treatment she received at the hands of her mother; post natal depression; and the fact that the birth of the Applicant’s latest child may have been the cause of her relapse into drugs in 1997; and opines that the Applicant suffered from “ a depressed personality construct with accompanying low feelings of self worth …”. However, again there is sufficient reference to these matters in her Honour’s reasons to satisfy me that her Honour was fully cognisant of those of them as may have tended to mitigate the Applicant’s criminality.

17    Another submission advanced by the Applicant was that her Honour’s involvement in the trial may have led to bias on her part when she came to deal with the appeal from a magistrate. It may be noted that although the Applicant was represented at the hearing of that appeal, no such complaint was then made. However, I do not need to rely on that fact. There is no more basis for concluding that Judge Latham was biased in consequence of sitting on the Applicant’s trial than there is for concluding that a Court is biased because, at the time of sentence, it knows of an offender’s antecedents or, as often happens, has occasion to sentence an offender for more than one offence. Nor is there any greater basis for thinking that hearing the appeal from the magistrate led her Honour to be biased when she came to imposing the sentence now under appeal.

18 A further basis upon which the Applicant sought to challenge the sentence imposed upon her was by reference to a number of prior decisions of this Court and of the Victorian Supreme Court. One decision relied on was R v Hampton [1999] NSWCCA 341.

19    In that case this Court dismissed an appeal from sentences imposed by Judge Latham comprising a minimum term of 2 years 3 months and an additional term of 9 months’ penal servitude on a charge of assault occasioning actual bodily harm; and of a fixed term of 1 year’s penal servitude on a second such offence. A third charge of common assault was taken into account. The offender had a bad record. One of the principal offences involved the punching, scratching and bruising of one victim. The second was constituted by two stab wounds to the back of a second victim. The knife had been obtained by the offender at a nearby house at some stage after the altercation between the victims and the offender had commenced.

20    Ms Hampton’s record was comparable with that of the Applicant; but a significant distinguishing feature is the nature of the offences with which Ms Hampton was charged. I was a member of the Court in that case; and in the course of delivering judgment, I indicated some surprise that the matter had not proceeded on the basis of a more serious charge, but the fact remains that it had not. The maximum penalty which could be imposed for an assault occasioning actual bodily harm, the principal offence with which Ms Hampton was charged, is penal servitude for 5 years. The decision in R v Hampton is of no assistance to the Applicant.

21 Reliance was also placed on R v Baker [1999] NSWCCA 227. Ms Baker was convicted of armed robbery with wounding, an offence which carries a maximum term of imprisonment of 25 years. She and a male acquaintance had approached their victim, against whom Ms Baker apparently had some animosity and made demands on him. Ms Baker stabbed the victim in the buttock and then robbed him of methadone. Ms Baker had a lengthy criminal history; and the sentencing Judge had observed that she had learnt nothing from the leniency which Courts had extended to her in the past. Ms Baker had some family factors operating in her favour; although, at least as appears from the report, these were not obviously stronger than those of the Applicant here. This Court expressed the view that the sentence, of a minimum term of 2 years and 3 months and an additional term of 9 months “extended a considerable degree of leniency … and was towards the lower end of the appropriate range”.

22    While there certainly is an argument that the disparity between the total sentence of 3 years imposed on Ms Baker and the 6 years imposed on the Applicant is not justified, one must recognise that there is not a great difference in the minimum terms; that part of the sentence imposed on the Applicant was concurrent with that imposed for another offence; and that a blow to the head causing a depressed skull fracture could well be regarded as more serious than a stab wound to the buttock, (which wound did not prevent the victim from walking around for some time thereafter).

23 In Fernando (1992) 76 A Crim R 58, the prisoner had pleaded guilty to a charge of malicious wounding of his sometime de facto partner. The maximum penalty provided for was 7 years. The prisoner had chased the victim from his bedroom and then stabbed her a number of times around the neck and leg with a butcher’s knife. She was fortunate to survive. The prisoner had been so heavily intoxicated at the time that apparently the view was taken that he could not have had the mental intent to justify the laying of a more serious charge. He had an extensive criminal history, including offences of or involving assault. At the time of the subject offence he was subject to a recognisance to be of good behaviour, one of the conditions of which was that he not consume intoxicating liquor to excess. The sentence imposed was of a minimum term of 9 months and an additional term of 3 years and 3 months.

24    Wood J had found what he obviously regarded as compelling subjective circumstances. His Honour listed 12. Some are echoed in the circumstances of the Applicant, but a number are not. And there are few additional ones that the Applicant can pray in aid. Probably they are limited to the circumstances of her children; and the fact that it was post-natal depression which caused or contributed to her resumption of drug taking prior to the offence with which this Court is concerned. Among the factors which Wood J referred to and which are not present in the Applicant’s case are:-

“(c) the fact that he was exposed to a very significant gaol sentence when a young man for an offence which today in the case of an offender in his position would not have justified such an outcome which was then followed by numerous brushes with the criminal law for conduct which today would not have attracted such attention.

(d) His favourable record for gainful work …

(g) His obvious remorse and contrition.

(i) His early plea of guilty …”

25    In R v Smith (unreported, CCA, 28 October 1993) the offender had pleaded guilty to an offence of assault occasioning actual bodily harm, an offence which carried a maximum sentence of 5 years penal servitude. Following an argument, Mr Smith went to the place where he was staying, took possession of a knife and returned to the scene of the argument. He recommenced the argument and was asked to leave. The person who made that request then sought to walk away. Smith then grabbed him, took hold of the knife from behind his own back and plunged it into the victim’s stomach. The evidence was that the victim was not permanently injured although he was still experiencing some difficulties at the time of the sentencing proceedings.

26    Smith was 26 at the time of the offence. He had a substantial criminal record, which included armed robbery. He had had for a long time a problem with alcohol and cannabis and seems to have been affected by these drugs at the time of his offence. Operating in his favour were the facts that he pleaded guilty, albeit on the second day of proceedings against him on a more serious charge, that he had expressed profound remorse; and that he had had a most disturbed childhood.

27    The sentence imposed at first instance was of a minimum term of 3 years and an additional term of 1 year. This Court took the view that various considerations relevant to the existence of special circumstances had not been brought home to the sentencing Judge; and varied the sentence so as to make both of the minimum and additional terms, periods of 2 years, leaving the total sentence as it was.

28    Not surprisingly, the report does not make clear the totality of the evidence available to the Crown on the question of Mr Smith’s intent. Such information as there is suggests that Mr Smith was indeed fortunate that the Crown was willing to accept a plea to the charge that it did. However, that having occurred, the sentence imposed has to be judged by the penalty prescribed for the offence charged.

29 In R v Caracaleanu (unreported, CCA, 27 September 1995), after reviewing a number of cases where knives had been used to inflict harm, this Court dismissed an appeal against a sentence comprising a minimum term of 2 years and an additional term of 2 years imposed on an offender found guilty of an offence of malicious wounding with intent to cause grievous bodily harm. Under s33 of the Crimes Act, that offence carried a maximum penalty of 25 years’ penal servitude.

30    The offence, which included the infliction of 4 very serious knife wounds, occurred without premeditation in the kitchen of the offender’s home during the course of an altercation immediately following the victim biting Mr Caracaleanu. At the time the latter was very drunk. The altercation arose out of concern Mr Caracaleanu had in connection with the relationship between the victim, a homosexual, and a youth to whom Mr Caracaleanu felt affection or duty. At the time of the offence Mr Caracaleanu was 39 and had no prior convictions. He expressed no contrition.

31    The final decision to which I think it necessary to refer is the decision of this Court in R v Pakalani (unreported, CCA, 12 November 1996) Mr Pakalani was drinking on the footpath outside a hotel. A bouncer told him he could not do so. Mr Pakalani and friends commenced to attack the bouncer, who escaped by re-entering the hotel. Mr Pakalani then found a side entrance, entered, obtained a broken beer bottle and smashed it into the victim’s face, doing very serious damage and nearly costing the victim an eye. Mr Pakalani confessed early in the piece. He was under the influence at the time and the report records that “there were various other mitigating factors” albeit they are not identified.

32    The charge faced by Mr Pakalani was malicious wounding with intent to do grievous bodily harm, an offence which carried a maximum penalty of 25 years penal servitude. This Court allowed a Crown appeal and imposed a sentence of imprisonment for 4 years including a minimum term of 3 years. McInerney J, with the concurrence of at least Dunford J, said that but for the element of double jeopardy that results where an appeal by the Crown succeeds, a sentence well in excess of that should have been imposed.

33    What conclusions should be drawn form these decisions? Certainly, judged solely by the circumstances of the offences, the Applicant has been treated more harshly than some other offenders. However, once the differences between those cases and the Applicant’s are recognised, it does not seem to me that they demonstrate that the sentence imposed by Judge Latham was outside the proper exercise of her Honour’s sentencing discretion. In that regard it must be remembered that sentencing is not an exact science; and before this Court can intervene, it must appear that there was either error in the process of arriving at the sentence imposed, or that it falls outside a legitimate range.

34 I have also considered the statistics kept by the Judicial Commission in respect of offences under s33 of the Crimes Act, the section under which the Applicant was charged. Offences under that section cover a wide variety of circumstances including shooting or any manner of inflicting grievous bodily harm with intent to do grievous bodily harm. In this situation the statistics provide limited guidance. However, it may be noted that of the 171 cases included in those statistics, which cover the period January 1990 to December 1998, 150 offenders were subjected to full time custodial sentences. 28% had full terms greater than the Applicant; 11% had full terms between 5 and 6 years; and 61% of such offenders had full terms of 5 years or lower. 34% of such offenders had minimum terms greater than that imposed on the Applicant; and 19% had sentences of between 2½ and 3 years.

35    I have previously expressed my reservations as to the use of sentencing statistics. It is sufficient in the instant case to say that the statistics, also, do not demonstrate that her Honour erred.

36    Having regard to the cases in this Court, and to the statistics to which I have referred, I do not find it necessary to review the cases in the Victorian Supreme Court to which the Applicant directed our attention.

37    The offence of which the Applicant was convicted carries a maximum penalty of 25 years. A penalty of that order is, of course reserved for a worst case, and there is no suggestion that the Applicant’s offence falls into that category. However, neither was the penalty imposed close to the top of the range.

38    The total term of imprisonment imposed on the Applicant was 6 years. Even putting aside the fact that 10 months was concurrent with another sentence, this is less than 25% of the maximum. The minimum term was about one sixth of that which might have been expected had a maximum sentence been imposed, and broken up as envisaged by s5 of the Sentencing Act. When regard is had to the circumstances of the offence, let alone when regard is also had to the Applicant’s record, these proportions do not seem to me so excessive, when judged by the statutory provisions, that they can be said to be outside the proper exercise by Judge Latham of her sentencing discretion.

39    In my view, the applicant should be given leave to appeal but her appeal should be dismissed.

IN THE COURT OF
CRIMINAL APPEAL

No: 60629 of 1998

SULLY J
HULME J
HIDDEN J

Thursday, 24 February 2000

REGINA -v- Jodie Ann RYAN
JUDGMENT

40    HIDDEN J: I agree with Hulme J.