R v Ryan (No 4)

[2020] NSWSC 1629

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Ryan (No 4) [2020] NSWSC 1629

Hearing dates:

4 December 2020

Decision date:

10 December 2020

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) Convicted of the offence of murder.

(2) Convicted of the offence of breaching an apprehended violence order.

(3) For the latter offence, I impose a fixed term of imprisonment for 18 months, to commence on 12 November 2018.

(4) For the offence of murder, I impose a non-parole period of 17 years, to commence on the same date. That will be followed by a parole period of 6 years, to commence on 11 November 2035 and expire on 11 November 2041.

(5) To express my sentences another way, I have imposed a head sentence of imprisonment for 23 years with a non-parole period of 17 years, with a full backdate, and a wholly concurrent sentence for the breach of the AVO.

(6) The first date upon which it appears that the offender may be eligible for release to parole is 11 November 2035.

Catchwords:

CRIMINAL LAW – sentence – verdict of guilty of murder after judge alone trial – substantial impairment not established – fatal domestic violence – unplanned and frenzied stabbing – intention to kill – contravention of interim AVO imposed on morning of killing – previous threats of violence if deceased refused to terminate new romantic relationship – primary motives of jealousy and anger – brain damage caused by chronic alcoholism – acceptance of brain damage, mood disorder, and loss of control as contributing to offence – minimal criminal record – sentence imposed

Cases Cited:

R v Ryan (No 3) [2020] NSWSC 142

Category:

Sentence

Parties:

Regina (Crown)
Paul Ryan (Offender)

Representation:

Counsel:
B Campbell (Crown)
J Watts (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2018/347939

remarks on sentence

Introduction

1. On 15 October 2020, at the conclusion of a trial by judge alone conducted in Lismore, I returned a verdict of guilty of murder against Paul Ryan (the offender). That verdict resolved an allegation that, on 12 November 2018, the offender had murdered Marie Van Beers (the deceased) in the regional centre of Tweed Heads, on the border between New South Wales and Queensland.

2. The matter was stood over for proceedings on sentence on 4 December 2020 in Sydney, and it is my duty to sentence the offender for that murder today.

3. I provided detailed written reasons for my verdict: see R v Ryan (No 3) [2020] NSWSC 142. They were read out in open court, paper copies were thereafter distributed, they have been posted to NSW Caselaw, they have been promulgated by at least two forms of social media, and the digital copy of these remarks will provide a hyperlink to them. Because of all of those measures, and in order to avoid fruitless repetition, these remarks on sentence will be briefer than otherwise.

4. Murder carries a maximum penalty of imprisonment for life without possibility of parole, and, in the circumstances of this case, a standard non-parole period of 20 years. The learned Crown prosecutor did not submit that this is a case calling for the ultimate penalty, a position with which I agree.

5. A further summary offence, to which the offender pleaded guilty, was placed before me on a certificate; namely, breaching an apprehended violence order (AVO). It was the murder itself that constituted the breach. That wholly summary offence carries a maximum penalty of imprisonment for two years. Because of the vast disparity in those maximum penalties, the summary offence will only be discussed fleetingly in the rest of these remarks.

6. As for my findings of fact for the purposes of sentence, many of them have already been made in my reasons for verdict. Neither party sought to revisit any such finding on sentence, and I maintain them. Speaking generally, I bear in mind that aggravating features on sentence need to be proven beyond reasonable doubt, but mitigating features in favour of the offender need be proven only on the balance of probabilities. Some matters, inevitably, will remain unclear to me.

Objective features

7. To recap briefly: the offender did not deny at trial that he had unlawfully killed the deceased, and indeed he entered a plea of guilty at its commencement to that effect. The issue was whether the partial defence of substantial impairment could be established by him on balance, thereby reducing his culpability from murder to manslaughter, the offence that he admitted.

8. I readily accepted the concession, and the overwhelming evidence, that the offender had indeed killed the deceased in circumstances that, subject to the success of the partial defence, amounted to murder. And although I found that he suffered from two relevant impairments at the time of the homicide, I did not accept that either of them was substantial. Entirely separately, I also did not accept the proposition that community standards warranted reduction from murder to manslaughter. Those were the bases upon which I came to my verdict.

9. To outline the context in which the offender had committed the murder: he and the deceased were both in their 60s, and had been in a romantic relationship that stretched over decades, and had led to the birth of two sons, by then both adults.

10. For many months before November 2018, the intimate side of the relationship had come to an end, not least because of the chronic alcoholism and dependence upon prescription drugs from which the offender suffered, and the distortions they brought to his behaviour. The deceased was pursuing a new romantic relationship with another man, who lived hundreds of kilometres to the south on the mid-North Coast. She was murdered in her own home the evening before she was intending to take the first steps into a new life with that other man.

11. About a month beforehand, the offender had been recorded making threats over the telephone of physical violence against the deceased if she did not bring the new romantic relationship to an end. On a straightforward analysis, the offender simply did to the deceased precisely what he had threatened to do, if she continued to disobey him.

12. Furthermore, one evening two weeks before the murder, the deceased had called police to the apartment that she and the offender shared, because of his threatening and abusive behaviour towards her. The police imposed a provisional AVO upon the offender. It had been extended as an interim AVO by the learned Magistrate in the Local Court at Tweed Heads on the very morning of the day that the offender brought the life of the deceased to an end.

13. The offender effected the murder by stabbing the deceased repeatedly in the kitchen of her own home, disregarding her pleas. The precise details of how the attack commenced are unclear, but it is certainly the case that at least two knives were used. Many of the wounds were inflicted from behind.

14. Prior to or during the fatal ordeal, the offender held a knife to the throat of the deceased; ordered her to telephone her sister and brother-in-law in Menindee, Mr and Mrs Reid; and demanded that Mrs Reid advise the deceased not to leave him. He also spoke of his readiness to slit the throat of the deceased in profoundly contemptuous and vulgar terms; the exact words appear in my reasons for verdict, and there is no need to recount them again. Shortly after that, words were replaced by murderous actions.

15. Neighbours heard the pleas for help of the deceased; the police and emergency services promptly attended; nothing could be done to save the life of the deceased; the offender was arrested at the scene; he has been in custody ever since.

Objective seriousness

16. Although every murder is by its nature a crime of the utmost seriousness, it is necessary for me to make an assessment of the gravity of this particular offence, not least so that I can sensibly apply the maximum penalty and standard non-parole period provided by Parliament.

17. As for the breach of the AVO – constituted by murdering the person whom that court order was intended to protect – it can readily be seen to be in the worst class of case.

18. In accordance with my reasons for verdict, I approach the seriousness of the murder on the basis that it was unplanned and committed in a frenzy. Although weapons were used, they were unsophisticated and were simply those that were available in the kitchen. On the other hand, as I have previously found, it was neither coincidence nor accident that the murder occurred when it did. In other words, it was committed in flagrant breach of a court order, and in order to forestall a woman making her own life choices as she saw fit. Furthermore, the fatal attack was a terrifying and excruciatingly painful death that was inflicted upon an unarmed and defenceless woman who was entitled to feel safe in her own home. Her death was by no means instantaneous. The number and location of the wounds inflicted demonstrate an undoubted intention to kill.

19. In short, both counsel were content with my foreshadowed assessment that, objectively, this example of the offence of murder must be seen as extremely grave.

Subjective features

Approach of offender to allegations

20. Turning from the offence to the offender, as I have said, a trial was conducted, and the outcome was in accordance with the greater allegation of the Crown. Having said that, the offender pleaded guilty to manslaughter at its commencement, he has never denied the homicide, and the trial very much focused on proof or otherwise of the partial defence. Although there can be no utilitarian discount for the plea of guilty arising from that state of affairs, even so the offender deserves some credit for the position adopted by himself and his legal team.

21. As for the certificate offence, I have reduced the sentence for it in accordance with my understanding that it was clear from an early stage that it would not be disputed.

General background

22. The offender was born in February 1954, and accordingly was aged 64 as at the date of the offences, and is now aged 66. He grew up in the Sydney suburb of Camperdown, in circumstances that were neither grossly deprived nor in any way privileged. He was not a good student, and it is possible that he suffered from some undiagnosed condition that made learning difficult, with the result that he left school at the age of 15. Thereafter the offender engaged in a number of unskilled jobs, seemingly successfully. It is noteworthy that alcohol played a negative role in the lives of some of the adults around him when he was growing up, and I think that that fact played its part in the offender becoming a heavy drinker even before he became an adult. There was an early marriage that gave rise to youthful fatherhood, but the marriage came to an end many years ago, and as I understand it the offender has no contact with his firstborn. The offender and the deceased met in about 1980, and although, as I understand it, they never formally married, their romantic relationship was more or less continuous for many years thereafter.

23. The employment of the offender came to an end more than a quarter of a century ago, when he suffered an injury to his feet and legs whilst working as a porter in a hospital. Ever since, I accept on balance that he has been in significant pain, although I also think that that has its psychological aspects. Regrettably, his severe drinking problem combined with a subsequent dependence on prescription drugs, which I infer began with an effort to obtain pain relief. Each of those dependencies was, as I said in my reasons for verdict, completely unaddressed at the time of the murder.

24. Over the years, the offender and the deceased lived modestly, including at one stage in a caravan park in the Northern Rivers region, and, at the time of the murder, in an apartment available to them through the combination of an insurance payout and an arrangement with one of their sons.

25. It was only a few years after his workplace injury that the offender spent three months in a psychiatric unit, having attempted to commit suicide and having been diagnosed as suffering from psychotic depression.

26. Poignantly, in the trial, there was evidence of a period of about a decade in which the offender was able to be abstinent from alcohol and drugs. During that time, one of his sons said, the offender was an excellent father, and there were many happy memories of family holidays and the like. In contrast, by November 2018, the offender was leading a disorganised and dependent and degraded life that featured frequent hospitalisations, declining functioning, and poor physical and emotional health.

Aspects of brain and mind

27. Indeed, by that stage it was not just the chronic and acute effects of intoxication with alcohol and prescription drugs that were damaging the life of the offender. His abuse of alcohol had in fact led to observable, physical brain damage, which had reduced his ability to think. In other words, to express things simply, he had suffered a self-induced chemical injury to his brain that was permanent and untreatable.

28. As well as that, he was suffering from depression, in my opinion perhaps as part of a vicious circle whereby that condition underpinned his abuse of substances, and was also exacerbated by that same abuse.

29. Although, as I have said, I rejected at trial the proposition that any impairment was substantial, I accept the submission of learned defence counsel that each of those factors – one neurological, and the other psychiatric – played some contributing role in the commission of the offence, and they are deserving of some mitigating weight on sentence.

30. Although the offender was more or less constantly affected by drugs or alcohol towards the end of 2018, the evidence placed before me was that, at the time of the murder, he had consumed about nine schooners of mid-strength beer over a period of some hours in a nearby Bowls Club, to which he had travelled after the court appearance on the morning. In my opinion, in light of his undoubted tolerance to alcohol, he was not drunk at the time of the offence, and intoxication has no role to play in this matter, quite apart from the strictures of statute.

31. In short, the primary motivations for the offence were jealousy and anger, underpinned by a refusal to accept reality, not only in the form of the deceased proposing to leave him, but also in the proposition that his former romantic partner was perfectly entitled to lead her life as she chose. But in my opinion, alcohol-induced brain damage, a longstanding mood disorder, and an overarching loss of control played their parts as well.

Paucity of criminal antecedents

32. To the credit of the offender, his criminal record is very sparse, although it is entirely consistent with a longstanding problem with alcohol. In my opinion, despite what the deceased had said about him having physically assaulted her on two occasions over many years, and the very unfavourable assessments of his personality and behaviour that have been made by members of her family, in light of the absence of criminal convictions, he is entitled to be approached by the criminal justice system on the basis that he had generally been a person of good character up until November 2018.

Present and future

33. Since his incarceration, the offender has been in no position to abuse alcohol. Nor, I accept, has he abused prescription or other drugs. I believe that there has been a marked improvement in his functioning as a result, including his ability to think clearly, and to reflect. He is held in a unit specially designed for elderly and frail prisoners, though even that hardly makes imprisonment easy for a man of his age, general ill-health, level of intellectual functioning, and, as I understand it, lack of contact with the outside world.

34. I believe that he is now spending his time as quietly and constructively as he can. Doing the best one can to predict possibilities many years in the future, if the effluxion of time does not prevent the release of the offender, I think that his prospects of rehabilitation are, generally speaking, good. And to the extent that statute speaks of it as a separate consideration, by that stage I think it most unlikely that his state of physical frailty brought on by age would permit him to harm another person again.

Remorse?

35. As for the attitude of the offender to what he has done, in his recorded interview with police reasonably shortly after the offence, he showed few signs of regret, and was equivocal about accepting the obvious fact that he had indeed killed the deceased. Having said that, I think that he may have been in an extraordinary emotional state at that time, perhaps a state of shock or disbelief at what he had done.

36. It is also noteworthy that the offender has made a number of exculpatory or mitigatory claims – for example, that he had tried “ice” for the first time, moments before the offence – that I do not accept as true. But, as defence counsel has said, I think that alcoholic confabulation may have played a role in that regard, as opposed to craftily constructed lies.

37. Finally, in some of the earlier psychiatric reports, there is a flavour of self-pity and focus upon his own predicament, rather than the fate of the deceased. But at least one of those reports was based on an interview very soon after he was imprisoned, and I accept on balance that his thinking and feeling has been developing in the many months since the first shock of arrest and incarceration.

38. As I have said, by the time of the arraignment that commenced the trial, the homicide was solemnly and publicly accepted by way of a plea of guilty to manslaughter. A significant portion of the basis for the denial of guilt of murder was the expert opinion evidence of a psychiatrist. The offender gave evidence neither in the trial nor on sentence, with the result that I certainly approach what he has written to me – about how he now feels about what he has done – with caution. Even so, I do think that the extended process of the trial, the patent suffering that has been occasioned to many, the period of incarceration so far, and the accurate written acceptance by the offender that it is quite likely that he will die in gaol have, on balance, led to an appreciation of the gravity of what he has done that extends beyond a focus upon himself.

Various matters

39. Dealing now with some discrete matters, the offender will be given the agreed benefit of a full backdate to the date of his first arrest and commencement of continuous custody; that is, 12 November 2018.

40. Secondly, these remarks reflect all of the objective and subjective features upon which my sentence is based, and I shall not list them again mechanistically.

41. Thirdly, I do not accept that there are special circumstances here, not least because of the inevitable length of the parole period. I also believe that the non-parole period that I shall shortly impose is the least that would properly reflect the objective gravity of this matter, seen in its context. Having said that, the non-parole period is rounded down very slightly, because the law does not concern itself with trifles.

42. Fourthly, I accept the joint position of counsel that, in light of the close connection between the two offences, and in order to avoid erroneous double counting, it is appropriate to make the sentence for the breach of the AVO entirely concurrent with the sentence for the murder.

43. Fifthly, I was helpfully provided with a number of sentencing judgments, both at first instance and on appeal, pertaining in particular to murders committed against a current or former intimate partner, by way of the use of a knife, and featuring certain psychiatric or psychological conditions. Each case turns on its own facts, and I shall not pause now to recount those judgments in any detail. Even so, I believe that the sentence that I shall impose is in general conformity with the sentences to which my attention was invited.

39. Sixthly, in light of the offence of which he will be shortly convicted, the offender should be aware that it is possible that he will be detained in custody, not only after the complete expiry of his non-parole period, but even after the expiry of his entire head sentence, if it is established that he constitutes a danger to the community at that stage.

Victim impact statements

45. So far I have spoken at some length about the offence, and the offender who will be sentenced for it, as the law requires me to do. But it should not be thought that I have neglected to think about Marie Van Beers as a person, and not just a victim. Nor have I neglected to reflect upon the effect that her death has had upon others. There was no objection by defence counsel to the following being able to be taken into account on sentence, as part of the harm done to the community.

46. Ms Jessica Reid, daughter of Mrs Moya Reid and niece of the deceased, has spoken of the terrible day when her mother, in a hysterical state, telephoned with the news of what had happened. She relied upon her aunt as a rock of support, and is now bereft of her rock as she struggles with her own challenges. She has spoken of the fact that an extended family has been robbed of mother, grandmother, sister, aunt, and great-aunt. She has also spoken of wounds too deep to be repaired.

47. Ms Betty Craddock, sister of the deceased, has spoken of her initial disbelief that her sister had been taken from her in this way. She has spoken of the burden of the many court appearances in this matter, and the fact that the conclusion of the trial many weeks ago was not yet the end of the courtroom ordeal. She recounts a period of lack of contact with her sister that came to an end in 2016, after which there were many happy times, part of an effort to make up for lost time that is now itself cut short. She is incapable of putting from her mind the final moments of suffering and terror of her sister.

48. Finally, Mrs Reid has spoken of the deceased as an earthy, fun-loving person who is terribly missed. She has spoken of the whole family being subjected to a devastating tragedy, and of mental scars that are very deep, and cannot be erased. She has also spoken of her own feelings of guilt about the fact that, from hundreds of kilometres away, she was unable to save her sister during the telephone call. I venture to say to her, respectfully, that her feelings of guilt are completely misplaced, because only one person is responsible for this tragedy.

49. A murder trial very often focuses on the events leading up to and culminating in the homicide, and one hears little during that process of its aftermath. As the tribunal of fact in this trial by judge alone, that was my role. But it is impossible to read and hear the victim impact statements in this matter without coming to an appreciation of the grievous and permanent damage, to many persons, that has been done here. I extend my condolences to all those who are suffering, and express the hope that the conclusion of these legal proceedings today may provide some measure of relief.

Conclusion

50. In short, the life of a woman was savagely brought to an end by a man who was her former intimate partner, in defiance of a court order designed to protect her, made earlier that very day. The motivation was a refusal to accept her right to live her life as she saw fit, romantically and otherwise. The offence had been preceded by threats to harm the deceased if she did not obey. Cognitive impairment, depression, and loss of control played their part, but their roles were secondary ones. The offender has accepted his guilt of homicide, but there can be no utilitarian discount in light of the outcome of the trial. Unusually, the murder was committed in circumstances – brought about by the offender – whereby two persons close to the deceased were tormented by being aware of it as it happened.

51. To be weighed against those markedly adverse factors is the fact that the offender is an older man whose life has been badly damaged by chronic abuse of alcohol and prescription drugs. He has been free of other convictions for virtually his whole life. I think that his prospects for rehabilitation, if released as a very old man, completely free of dependence upon substances, are good. Personal deterrence has little practical role to play. I believe on balance that he has come to appreciate the dreadful enormity of his actions.

52. Patently, despite the favourable subjective matters that I have just summarised, denunciation on behalf of the community of a murder committed in these circumstances, and general deterrence of others who might be considering inflicting harm upon current or former intimate partners who dare to disobey them, loom large in this sentencing exercise. I fully appreciate that the sentence that I shall now impose could well lead to the offender dying in gaol. But that is the inevitable consequence of the immensity of his crime, and the stage of his life at which he committed it.

Imposition of sentence

1. Paul Ryan, you are convicted of the offence of murder.

2. You are also convicted of the offence of breaching an apprehended violence order.

3. For the latter offence, I impose a fixed term of imprisonment for 18 months, to commence on 12 November 2018.

4. For the offence of murder, I impose a non-parole period of 17 years, to commence on the same date. That will be followed by a parole period of 6 years, to commence on 11 November 2035 and expire on 11 November 2041.

5. To express my sentences another way, I have imposed a head sentence of imprisonment for 23 years with a non-parole period of 17 years, with a full backdate, and a wholly concurrent sentence for the breach of the AVO.

6. The first date upon which it appears that the offender may be eligible for release to parole is 11 November 2035.

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Decision last updated: 10 December 2020