R v Van Ryn (No 2)

[2016] NSWCCA 160

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Van Ryn (No 2) [2016] NSWCCA 160
Hearing dates:	On the papers
Decision date:	10 August 2016
Before:	Leeming JA; Johnson J; R A Hulme J
Decision:	The application by the Crown to reopen the sentencing of the respondent pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 is refused.
Catchwords:	CRIMINAL LAW – procedure – Crimes (Sentencing Procedure) Act 1999 s 43 – application to reopen proceedings to correct sentencing error – where Court referred to wrong offence provision, maximum penalty and standard non-parole period when resentencing – error did not result in aggregate sentence imposed contrary to law – application refused
Legislation Cited:	Crimes Act 1900 (NSW) s 61M Crimes (Sentencing Procedure) Act 1999 (NSW) ss 43, 53A
Cases Cited:	Achurch v R [2014] HCA 10; 253 CLR 141 R v Van Ryn [2016] NSWCCA 1
Category:	Principal judgment
Parties:	Regina (Applicant) Maurice Van Ryn (Respondent)
Representation:	Counsel: Ms S Dowling SC (Crown) Mr C P Heazlewood (Respondent)   Solicitors: Solicitor for Public Prosecutions David Griffiths Lawyers
File Number(s):	2014/178855

Judgment

1. THE COURT: The Court gave judgment in R v Van Ryn [2016] NSWCCA 1 on 10 February 2016 (the judgment). It upheld the Crown appeal and resentenced the respondent by way of imposing an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. The Crown has recently drawn to the attention of the Court an error in the judgment which it seeks to have corrected pursuant to s 43 of the Crimes (Sentencing Procedure) Act. That provision provides power to re-open sentence proceedings to correct errors in certain identified circumstances.

The error

3. The judgment at [30] referred to the offence in Count 9 of the first indictment (there were two) as being an offence contrary to s 61M(2) of the Crimes Act 1900 (NSW) for which there was prescribed a maximum penalty of imprisonment for 10 years and a standard non-parole period of 8 years.

4. This information reflected what was in the "Particulars of Trial" document prepared by the Crown. The statement of facts that was before the sentencing judge also referred to the offence being contrary to s 61M(2).

5. At page 3 of the primary judge's remarks on sentence he referred to the offence as being contrary to s 61M(1) but at page 5 he referred to it being contrary to s 61M(2).

6. The offence in Court 9 to which the respondent entered a plea of guilty on 4 February 2015 was in the following terms:

"Between 1 January 2004 and 31 December 2005 at Tathra in the State of New South Wales did assault [Victim 7] and at the time of such assault, committed an act of indecency on [Victim 7], a child then under the age of 16 years, namely 13 years."

7. Section 61M, at all times during the period specified in Count 9, was in the following terms:

61M Aggravated indecent assault

(1) Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.

(2) Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years.

(3) In this section, "circumstances of aggravation" means circumstances in which:

(a) the alleged offender is in the company of another person or persons, or

(b) the alleged victim is under the age of 16 years, or

(c) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(d) the alleged victim has a serious physical disability, or

(e) the alleged victim has a serious intellectual disability.

8. It is clear that the offence in Count 9 was one contrary to s 61M(1) and the maximum penalty was imprisonment for 7 years. The standard non-parole period prescribed for a s 61M(1) offence, at the relevant time, was 5 years.

9. The Court imposed an aggregate sentence of 18 years with a non-parole period of 13 years 6 months. Pursuant to s 53A(2) it indicated the sentences it otherwise would have imposed for the individual offences and in respect of Count 9 in the first indictment it specified an indicative sentence of 2 years 2 months with a non-parole period of 1 year 7 months.

The application

10. On 15 June 2016 the Crown filed an application to re-open the sentencing of the respondent pursuant to s 43 of the Crimes (Sentencing Procedure) Act. In written submissions the Crown requested that the respondent be sentenced in respect of Count 9 pursuant to s 61M(1). The solicitors for the respondent indicated by letter of 7 June 2016 that they did not oppose this course.

11. On the first indictment in its original form, Counts 3 to 9 were described as aggravated indecent assaults contrary to s 61M(2); Count 9 was amended by hand during the course of the sentencing hearing in the District Court to refer to s 61M(1). In making the application it was initially thought by the Crown that the error was contributed to by the Court only ever being provided with an incorrect unamended copy of the first indictment. However, the Court was in fact provided with the correct, amended, version of the indictment at the conclusion of the hearing of the Crown appeal (transcript 2 December 2015, p 57.23). The problem lay in the Court's attention not being directed to the amendment and it being misled (inadvertently) by the incorrect information referred to above and by submissions (again, inadvertently) based on that incorrect information (for example, transcript 2 December 2015, p 11.14 “Counts 3 to 9 are aggravated indecent assaults under 61M(2)...”). That incorrect information may be attributed to the unamended indictment having been used as the source.

12. Section 43 (relevantly) is in the following terms:

43 Court may reopen proceedings to correct sentencing errors

(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has:

(a) imposed a penalty that is contrary to law, or

(b) failed to impose a penalty that is required to be imposed by law,

and so applies whether or not a person has been convicted of an offence in those proceedings.

(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:

(a) may impose a penalty that is in accordance with the law, and

(b) if necessary, may amend any relevant conviction or order. …

Crown submissions

13. In written submissions filed with the application the Crown submitted that the aggregate sentence imposed by this Court was informed by the indicative sentences for the individual offences. It was submitted that the aggregate sentence was 'contrary to law' within the meaning of s 43 because "that much of the aggregate sentence that was referrable to Count 9 is properly characterised as having been imposed in error because the respondent had not pleaded guilty to, or arguably been convicted of, an offence under s 61M(2)".

14. On an initial assessment we were doubtful that the power to re-open the proceedings afforded by s 43 was properly available in these circumstances. The parties were invited to make further submissions. The Crown provided further written submissions dated 23 June 2016 in which it further developed the point summarised in the preceding paragraph. Short written submissions by the respondent's counsel advised that the respondent "submits to any order made by the Court".

Construction of s 43

15. The leading authority on construction of s 43 is Achurch v R [2014] HCA 10; 253 CLR 141. The following passages in the judgment of the plurality indicate quite unequivocally that there can be no recourse to s 43 to correct the "error" identified by the Crown in relation to Count 9:

"[32] Section 43 confers upon courts exercising jurisdiction in criminal proceedings a power to re-open those proceedings and to impose a penalty that is in accordance with law. The section only applies to criminal proceedings in which one of two conditions is fulfilled. The condition directly relevant to this appeal is that 'a court has ... imposed a penalty that is contrary to law'. On the ordinary meaning of that collocation, what must be contrary to law is the 'penalty'. That condition is not satisfied merely by demonstrating that the court has erred in law or fact. Notwithstanding such error, the penalty imposed may not be contrary to law. It may fall within the range of penalties permitted or required by the relevant statutory provisions and may also be consistent with the reasonable exercise of a discretion applicable to the particular offence and offender. Examples of circumstances in which a penalty may be said to be contrary to law include:

●   A penalty which exceeds the maximum penalty prescribed for the offence.

●   A penalty which it is beyond the power of the court to impose because some precondition for its imposition is not satisfied - eg the existence of an aggravating factor or the existence of prior convictions for the same kind of offence.

A penalty which lies outside the range of penalties that could have been imposed in a reasonable exercise of discretion is not, thereby, contrary to law in the sense required by s 43, not least because reconsideration of such would involve an evaluative exercise which must be dealt with by way of appeal." (Footnotes omitted)

"[36] The text of s 43 is clear enough. The relevant power is conditioned upon the penalty being 'contrary to law'. A construction encompassing error in the imposition of a lawful penalty would allow the power to be applied to any penalty, however appropriate, that is imposed under the influence of an error of law or fact. That construction does not fit with the text. Nor does it accord with the limited purpose of the section. The principle of finality should not be taken to have been qualified except by clear statutory language and only to the extent that the language clearly permits. The construction for which the appellant contended, and which is reflected in some earlier decisions of the Court of Criminal Appeal, can only be supported by attributing to the provision a purpose which, whatever its practical benefits, leaves the boundaries between correction and appeal porous and protected only by the exercise of the sentencing court's discretion. The importance of the distinction between original and appellate jurisdiction in the application of s 43 to courts of first instance militates against such a result. The appellant's construction should not be accepted. A penalty is not 'contrary to law' only because it is reached by a process of erroneous reasoning or factual error."

16. The error in this case was in referring to the offence in Count 9 as being one contrary to s 61M(2) rather than s 61M(1) and in referring to the maximum penalty and standard non-parole period for the former instead of the latter. That may be characterised as an error in the reasoning that led to the indication of a sentence for Count 9.

17. Such error (arguably) affected the reasoning that led to the assessment of the penalty. But the penalty itself (namely the aggregate sentence) was not imposed contrary to law. It was a sentence that was well within the statutory and discretionary power of the Court to impose. Reconsideration of the indicative sentence for Count 9, and a consequential reconsideration of the aggregate sentence, would involve "an evaluative exercise which must be dealt with by way of appeal": Achurch v The Queen at [32].

18. The contention by the Crown in its first submissions and developed further in its subsequent submissions that the respondent had not pleaded guilty to, or been convicted of, an offence under s 61M(2) must be rejected. The respondent pleaded guilty to the offence in Count 9 which correctly described an offence against s 61M(1). He stood for sentence upon his plea of guilty to such an offence. The facts that the offence was incorrectly described in this Court as an offence against s 61M(2) and that references were made to the maximum penalty and standard non-parole period applying to s 61M(2) and not s 61M(1) did not convert what the respondent pleaded guilty to into something it was not. Accordingly, issues such as whether there was statutory authority to impose a sentence (aggregate or otherwise) in respect of an offence with which the respondent was not charged do not arise.

Order

19. The application by the Crown to reopen the sentencing of the respondent pursuant to s 43 of the Crimes (Sentencing Procedure) Act is refused.

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Decision last updated: 04 April 2018