R v Ryder & Ryan

[2001] QCA 60

[2001] QCA 60

COURT OF APPEAL

THOMAS JA
WILSON J
DOUGLAS J

CA No 224 of 2000
CA No 229 of 2000

THE QUEEN

v.

KELVIN CHARLES RYDER and
STEVEN JAMES RYAN

BRISBANE

..DATE 23/02/2001

JUDGMENT

WILSON J:  This is an application for leave to appeal against sentence brought on behalf of Kevin Charles Ryder and Steven James Ryan.  The sentences were imposed in the District Court in Townsville on 10 August 2000.

They were charged under section 539 of the Criminal Code with having attempted to procure one Mark Smith, a correctional officer, to supply a dangerous drug within a correctional institution. Both pleaded guilty.

By section 536 the maximum penalty for such an offence was seven years. The sentencing Judge imposed a sentence of 18 months imprisonment on each of them. At the time the sentences were imposed Ryan was in prison, serving a term for other offences. Pursuant to section 156A of the Penalties and Sentences Act the 18 months imposed on him was necessarily made cumulative upon the other sentence.

At the time the offence was committed the applicants were inmates of the Townsville Correctional Centre.  On 9 July 1998 they approached Smith and asked him whether he smoked dope.  When Smith replied that he did not know what they were talking about, Ryan said, "I have two grand in my bank account that says you do, and we know everything about where you live."  They then asked Smith how much he earned and tried to guess the amount.  He replied, "You're nowhere near it," and walked away from the applicants.

Later that day Smith approached a security intelligence adviser at the prison and informed him of the conversation.  Arrangements were put in place for Smith to wear a hidden cassette recorder if approached by the applicants in the future.  The next day, when Smith was walking towards the officers' station, Ryder looked at him and made a chopping motion with his hands.  Ryder said, "I only want a pound.  I still have that grand."  Later in an interview Ryder said that he had said he only wanted a point.

Five days later Ryder approached Smith, asking him to bring him a pair of sunglasses into the prison.  Smith replied, "No, it's not worth it."  The next day, 16 July 1998, Smith was approached by the prisoners during the day.  They proposed a plan with which Smith pretended to agree.  Arrangements were made for $200 to be deposited by Ryan's mother into a bank account in the name of Ryder's mother.  $100 was for the purchase of cannabis and $100 was payment for Smith.  It was arranged that Smith should meet Ryder's brother at a shopping centre to collect the cannabis.

On 21 July 1998 a police officer pretending to be Smith met Ryder's brother and took possession of approximately 10.5 grams of cannabis and a $100 note. 

On 22 July 1998 Ryder was interviewed by police at the prison.  He admitted his involvement in the offence.  Ryan declined to be interviewed. 

The sentencing Judge commented, and rightly so, on the seriousness of offences of this kind because of their potential impact on prison security and prison discipline.

There was another aspect of seriousness commented upon by counsel for the Crown before this Court, and that was the attempt to involve a prison officer.  The offence was instigated by the applicants by their approach to Smith.  They were persistent in their endeavours to achieve their desired end.  As the sentencing Judge found, Smith's failure to withdraw from the enterprise was because of the need to obtain sufficient evidence.

The sentencing Judge went on to say:

"The amount of marijuana involved and the amount of money involved are not the important factors in a charge such as this committed in the circumstances in which it was.  The seriousness of the offence is not to be determined solely by reference to the relatively small amount of marijuana involved or the relatively small amount of money involved.  The offence had the potential to strike at the very root of the prison system.  It had potential for corruption and there is need for Courts to impose deterrent sentences in these circumstances so that other like-minded offenders do not even think about doing what you tried to do."

I endorse those observations.

Ryan was born on 1 December 1978.  He has a criminal history from the time he was aged 14.  It consists of offences of dishonesty, property offences, assaults, drug offences for which he was dealt with in Magistrates Courts and the supply of a dangerous drug to a minor.

At the time of the offence presently under consideration he was in prison serving time for burglary and for supplying a dangerous drug to a minor.  Subsequently, he was released from prison. 

Whilst he was on bail for the present offence he committed  further offences including breaking and entering and committing an indictable offence and further drug offences.  He was serving a term of four months when he was sentenced for this offence. 

Ryder was born on 26 April 1973.  He has a criminal history from the age of 18.  It is not an attractive history, consisting of offences of dishonesty, property offences, breaches of domestic violence orders and minor drug offences.  But it is not as serious a history as that of Ryan.  At the time of the present offence he was imprisoned for breach of a domestic violence order.  By the time he was sentenced for the present offence, he had been released from prison and he had prospects of employment.

There were some respects in which Ryder's position was different from that of Ryan.  His criminal history was somewhat less serious.  He cooperated with the police when he was interviewed by them.  Both differences were sufficient to warrant different sentences. 

In my view, the sentencing Judge erred when he said the differences were sufficiently recognised by the fact that Ryan's sentence would be cumulative on the one then being served, whereas Ryder's sentence would not.  The fact is that Ryder was not serving any term of imprisonment at the time and there was nothing upon which his term could be made cumulative.

It has been submitted that the head sentence was manifestly excessive. I have come to the conclusion that in all the circumstances it was. As I have said, the maximum penalty for this offence was seven years. Had they been charged with the supply of a schedule 2 drug within a correctional institution under section 6 of the Drugs Misuse Act, the maximum penalty would have been 20 years.

I am aware of the sentence imposed on Scott Alick Mackenzie by a single Judge of this Court on 19 March 1999.  He was a prisoner serving a term for an offence of violence.  He procured another, a young woman, to bring 68.1 grams of green plant material into the prison.  He was charged with procuring another to supply the drug to him.  That is an offence for which the maximum term was 20 years.  He received a sentence of one year, cumulative on the term then being served.

Then there is the matter of Cole, a decision of the Court of Appeal on 26 June 1998.  Ms Cole was a young woman charged with the supply of cannabis sativa to an inmate in a correctional institution.  She pleaded guilty.  She had previously been sentenced by the District Court for the offences of burglary, assault causing grievous bodily harm and stealing.  In the District Court she had been sentenced to 18 months' imprisonment, suspended after three months with an operational period of three years.

With respect to the charge of supplying cannabis to an inmate of a correctional institution, the sentencing Judge imposed a sentence of three months' imprisonment, and he activated the remaining 15 months of the suspended sentence.  That sentence was upheld by the Court of Appeal.

In all the circumstances, I consider that the head sentence for each of the present applicants ought to have been 12 months. 

There ought to have been some recognition of Ryder's different circumstances.  In the normal course he would be eligible for consideration for parole at the half-way point of his sentence, that is after six months, and in the normal course I would be inclined to make an early recommendation for eligibility for parole.  However, more than six months have already passed since he was sentenced. 

This issue was canvassed with counsel during the course of the present application and counsel for the applicant Ryder expressed a preference for a suspended sentence, the sentence to be suspended after 197 days, being the calculation of the days already served. 

In all the circumstances, I would grant the application for leave to appeal. 

In the case of Ryan, I would set aside the sentence and I would substitute a sentence of 12 months' imprisonment cumulative upon the term he was serving at the time the sentence was imposed.

In the case of Ryder, I would set aside the sentence.  I would substitute a term of 12 months' imprisonment to be suspended after 197 days with an operational period of two years.  In other words, in the case of Ryder it would be my intention that he be released forthwith.

DOUGLAS J:  I agree.

THOMAS JA:  I also agree.  I think that the learned sentencing Judge in this case made a mistake in his sentencing of Ryder.  His assumption that Ryder was being more leniently dealt with because his sentence was not made cumulative was fallacious because no concurrent sentence was in existence which could lead to any benefit of that kind.
It therefore becomes necessary for this Court to reconsider at least Ryder's sentence.

As to the level of sentences imposed on both offenders, it has been difficult to find any reliable guidance in past cases as to the appropriate level in the present matter. One difficulty, and a matter I think of some importance, is the fact that these offenders were charged under section 539 of the Code with an attempt to procure the commission of a criminal act. As Justice Wilson has observed, the maximum sentence available on that charge is seven years, whereas the maximum sentence in the charge usually brought in relation to the supply of drugs within prisons under the Drugs Misuse Act is one of 20 years. There would be unwarranted disadvantage to the applicants in making direct comparisons with completed offences which were subject to a much higher maximum penalty. Some downward adjustment therefore seems necessary in the present matter.

The obtaining of a relatively small amount of cannabis was the objective here and whilst there are aggravating features which Justice Wilson has outlined, it is well removed from the more serious end of offences of this nature.  I agree with Justice Wilson that 12 months is the appropriate level of response in the present circumstances. 

I also agree, having regard to the submissions of Mr Chowdhury for Ryder that the sentence that should be imposed in this case is one that will secure his immediate release and I agree with the sentences that have been proposed.

The order of the Court will therefore be the application is allowed.  The sentences below are replaced with the sentences which have been stated by Justice Wilson.

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