R v Ryan

[2024] NSWDC 434

District Court

New South Wales

Medium Neutral Citation:

R v Ryan [2024] NSWDC 434

Hearing dates:

2/7/24-8/7/24, 12/7/24

Date of orders:

12 July 2024

Decision date:

12 July 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a term of imprisonment of 2 years with a NPP of 16 months (6/4/23-5/8/24). I find special circumstances.

Catchwords:

Crime – Sentence – Fail to comply with reporting obligations under the Child Protection (Offender’s Registration) Act 2000

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

NSW DPP – Crown
Robert David Ryan - Offender

Representation:

Mr T Buckingham for Crown
Ms B Kennedy for Offender

File Number(s):

22/328682

Publication restriction:

Statutory non-publication of the identity of the victim

remarks on sentence

1. The offender, Mr Robert Ryan, was found guilty by me on Monday of this week after a judge alone trial for an offence of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000, that being an offence under s 17(1). The maximum penalty for that offence is five years’ imprisonment or a large fine. The maximum penalty is, of course, a matter which is an important guidepost in the sentencing exercise to which I have had regard. The full facts are set out in my reasons for verdict of 8 July 2024 but, in short form, the facts are as follows.

FACTS

2. The offender was a registered person under the Act. That was by reason that he had previously been convicted and sentenced to imprisonment for offences that included aggravated indecent assault of a person under 16 years and sexual intercourse with a person under 16 years under authority. As a result of his status as a registrable person, the offender had reporting obligations. These included that he report to the Commissioner of Police any contact with a child, child meaning anybody under 18, where that contact occurred in certain situations.

3. The relevant obligation in this matter was that he report any contact with a child if, in having that contact, he was attempting to befriend the child. In my judgment and verdict of 8 July 2024, I found that the offender had had contact with a child and that, in doing so, he was attempting to befriend her. The child in question I have referred to as Donna, which is not her real name but a pseudonym. The offender met Donna when she, her mother and baby sister, in March 2022, moved into a unit in Liverpool, which was next to the unit occupied by the offender. Thereafter there was frequent contact between the offender and Donna and her mother.

4. This occurred on an almost daily basis and was in the form of a neighbourly-type arrangement, but soon developed into one where the offender became quite familiar with and friendly towards Donna and her mother. The contact extended over the period from early March 2022 until at least 10 October 2022. It included frequent conversations with Donna, giving her chocolate, and giving or lending her money, being alone in his apartment with her on three occasions, and also three occasions where the contact was physical, involving touching her on the back in a hugging sort of fashion.

5. As I indicated in my reasons for verdict, while I am satisfied that there was a lot of contact between the offender and Donna between March and October 2022, I could not be satisfied beyond reasonable doubt that the entirety of that period involved contact where the offender was attempting to befriend her. Although I am highly suspicious that he had that intention at an early stage and, in fact, shortly after meeting Donna, I considered that I was only able to form that view beyond reasonable doubt from a point in time near the end of the contact and no later than 11 October 2022.

6. I therefore approach the offence before the Court on the basis that it was shortly before 11 October 2022 that the offender’s contact with Donna had progressed to a point where he was attempting to befriend her, and that in failing to inform the Commissioner of Police within seven days of that contact, he was in breach of his reporting obligations. Those are the relevant facts in summary.

OBJECTIVE SERIOUSNESS

7. The offence must be taken seriously because the obvious object of the legislation is to protect children. The legislation is aimed at doing that by keeping a record of and monitoring persons who have been convicted of serious child sexual offences and, in particular, monitoring contact that they have with children.

8. In this particular instance, the offence involved a breach of reporting obligations in relation to actual contact with a child that the offender was attempting to befriend. That makes the offence more serious than certain other potential breaches of reporting obligations, such as failing to update a person’s residential address or phone number.

9. The age of the subject child is also relevant given that a “child” is defined as being anyone under 18 years. In this case, the child was only 12 and so she was significantly under that 18 year age and, therefore, more vulnerable than if she had been older.

10. While I have not been able to find that all of the accused’s contact with Donna involved attempting to befriend her, I am satisfied that this form of contact occurred on more than one occasion. Also, this was not an accidental or reckless offence, as I have found that it was deliberate or intentional, and especially so given my findings that the offender had been reminded of his reporting obligations on the very day or, at best, the day after his last contact with the child. On the other hand, based on my findings of fact as to the point in time by which the offender had contact that he should have reported, the period of offending was not exceedingly long.

11. Having regard to all of these matters, I assess the offence as being within the mid range of objective seriousness.

12. In terms of aggravating matters, I note that the offender was on parole at the time of the offence, and this is an aggravating matter on sentence because it increases the importance of punishment, deterrence and protecting the community.

SUBJECTIVE MATTERS

13. Turning then to subjective matters, the offender is now aged 74. In 2014 he was sentenced to imprisonment for 11 years with a six year seven month non parole period for offences of assault occasioning actual bodily harm, sexual intercourse without consent, aggravated indecent assault of a person under 16 years, three counts of that, and sexual intercourse with a person above ten but under 16 years.

14. Furthermore, in 2016 he was sentenced for an offence of recruiting another to assist in carrying out criminal activity, to a term of imprisonment of 18 months with a non parole period of 12 months. The offender was released to parole on 2 October 2021 and it was on 6 October 2021 that he attended Liverpool Police Station to make his initial report under the Act. At that time, he indicated that he was not employed and he indicated that he was still unemployed upon his annual review on 11 October 2022. I was informed in the sentence hearing that the offender’s trial was initially listed to be heard in September 2023 but that it had to be postponed due to medical issues, although I have not been told what those issues were or whether they have a lasting impact on the offender.

15. Beyond this information, I have little by way of subjective background. Suffice to say that I accept that the offender’s advancing age and associated likely medical issues have made his time in custody more difficult.

REMORSE AND RISK OF REOFFENDING

16. There is no remorse in this case as the offender apparently maintains his innocence. A lack of remorse, as well as the offender’s criminal history and the fact that this offence was committed while he was on parole, are matters that suggest the offender remains a risk of reoffending, especially in relation to children. Against this, however, is his advancing age and presumably his limited opportunities for contact with children, given especially that he will continue to be monitored upon his release. Overall, I assess his prospects of rehabilitation as being uncertain and his risk of reoffending to be moderate.

DETERMINATION

17. In determining the appropriate sentence, I have had regard to the terms of s 3A of the Crimes (Sentencing Procedure) Act 1999. It seems to me that, in relation to those, there is an obvious need for adequate punishment, as well as a need to protect the community, make the offender accountable, and denounce his conduct. Furthermore, it seems to me that general deterrence is important and personal deterrence is particularly important. But I have also had regard to the importance, if possible, of promoting the rehabilitation of the offender.

18. I am satisfied that the s 5 threshold in that Act is crossed, in other words, that no penalty other than imprisonment is appropriate.

19. In determining the ultimate penalty, I have had regard to sentencing statistics relating to the same type of charge involving cases both in this Court and the Local Court. There are only limited numbers of such offences dealt with in this Court because most of them are dealt with summarily in the Local Court, which is another matter I have taken into account.

20. The offender was arrested on this offence on 2 November 2022 and has been in custody since then. However, this period has not been solely due to his refusal of bail on the offence before the Court because on 16 November 2022, his parole was revoked due to his being charged with the offence before the Court. That parole revocation was backdated to the date of arrest.

21. I have given consideration to the extent to which the sentence I am about to impose ought to be backdated so as to acknowledge all of the purposes of sentencing but also to avoid double punishment. I have also take into account that the offender’s trial was originally listed to be heard in 2023 and that, if it had been heard at that time, he would, had he been convicted, by now have served a large part of the non parole period. It would not be appropriate, in my view, for the sentence to be backdated to the date of arrest given that the offender has also, since that date, been serving part of his revoked parole period for an existing sentence. However, I do intend to backdate the sentence by approximately 75% of that period.

22. Mr Ryan, if you just stand up and I will announce the sentence, please. I impose a head sentence of two years’ imprisonment. I have made a finding of special circumstances based on the offender’s advancing age and medical issues. I impose a non parole period of 16 months. Each of those will date from 6 April 2023. The head sentence, therefore, will expire on 5 April 2025. The non parole period will expire on 5 August 2024. All right, thank you, Mr Ryan, you can take a seat.

23. HIS HONOUR: Nothing to be raised about any of those dates or anything else?

24. BUCKINGHAM: No, your Honour.

25. HIS HONOUR: Thank you. Ms Ngo?

26. NGO: No, your Honour.

27. HIS HONOUR: All right, thank you.

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Decision last updated: 19 September 2024