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

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).
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

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.
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).
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).
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."

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

61M Aggravated indecent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Van Ryn (No 2)

Details

AGLC: R v Van Ryn (No 2) [2016] NSWCCA 160
Case: [2016] NSWCCA 160
Decision Date: 10 August 2016

CaseChat Overview and Summary

In the case of R v Van Ryn (No 2), the respondent, Van Ryn, sought to have the Court of Criminal Appeal reopen his sentencing proceedings to correct what he claimed was an error by the sentencing court. The Court of Criminal Appeal was required to determine whether the error made by the sentencing court warranted reopening the proceedings under section 43 of the Crimes (Sentencing Procedure) Act 1999. The Court of Criminal Appeal noted that the sentencing court had referred to the wrong offence provision, maximum penalty and standard non-parole period when resentencing Van Ryn. However, the Court of Criminal Appeal held that the error did not result in the aggregate sentence imposed being contrary to law. As such, the application to reopen the proceedings was refused.

The Court of Criminal Appeal considered whether the error made by the sentencing court was sufficient to warrant reopening the proceedings. The Court of Criminal Appeal noted that while the sentencing court had made an error, it did not result in the aggregate sentence imposed being contrary to law. The Court of Criminal Appeal held that the error did not have any impact on the sentence imposed and therefore did not warrant reopening the proceedings. The Court of Criminal Appeal further held that the sentence imposed was lawful and that the error did not result in a miscarriage of justice.

The Court of Criminal Appeal refused the application to reopen the proceedings. The Court of Criminal Appeal held that the error made by the sentencing court did not result in the aggregate sentence imposed being contrary to law. The Court of Criminal Appeal further held that the error did not have any impact on the sentence imposed and therefore did not warrant reopening the proceedings. The Court of Criminal Appeal noted that the sentence imposed was lawful and that the error did not result in a miscarriage of justice.

No further orders were made by the Court of Criminal Appeal. The Court of Criminal Appeal held that the application to reopen the proceedings was without merit and therefore refused the application. The Court of Criminal Appeal noted that the sentence imposed was lawful and that the error did not result in a miscarriage of justice. The Court of Criminal Appeal did not make any further orders in relation to the matter.

Orders