R v Van Ryn (No 3) - [2016] NSWCCA 307

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Van Ryn (No 3) [2016] NSWCCA 307
Hearing dates: On the papers
Decision date: 16 December 2016
Before: Leeming JA; Johnson J; R A Hulme J
Decision:
1. Crown appeal allowed.
2. Sentence imposed in the District Court on 9 September 2015 quashed.
3. Sentenced to an aggregate term of imprisonment of 17 years and 9 months with a non-parole period of 13 years and 4 months. The sentence will date from 10 December 2014. The offender will become eligible for release on parole at the end of the non-parole period which will expire on 9 April 2028. The total term will expire on 9 September 2032.

Catchwords: CRIMINAL LAW – sentence – child sexual assault – redetermination of sentence following grant of special leave by High Court – where the Court was inadvertently misled as to the correct offence provision for one of many offences – where a lesser maximum penalty and standard non-parole period applied – where the Crown does not oppose the imposition of a lower aggregate sentence – indicative and aggregate sentence modestly reduced from original resentence
Legislation Cited: Crimes Act 1900 (NSW) ss 61M(1), 61M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 43
Cases Cited: R v Van Ryn [2016] NSWCCA 1
R v Van Ryn (No 2) [2016] NSWCCA 160
Van Ryn v The Queen [2016] HCATrans 246
Van Ryn v The Queen [2016] HCATrans 268
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
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

9 September 2015

Before:

Jeffreys DCJ

File Number(s):

2014/178855

Judgment

THE COURT: The applicant was sentenced in the District Court on 9 September 2015 to an aggregate term of imprisonment for 13 years with a non-parole period of 7 years.
On 10 February 2016, this Court allowed a Crown appeal against the inadequacy of that sentence and replaced it with an aggregate term of imprisonment for 18 years with a non-parole period of 13 years and 6 months: R v Van Ryn [2016] NSWCCA 1 ("the principal judgment").
The principal judgment (at [292]) set out the sentences the Court would have imposed if it had not imposed an aggregate sentence:

Count

Offence

Sentence

Non-parole period

(where SNPP prescribed)

1st Indictment

1

s 61M(1)

1 year 10 months

1 year 5 months

2

s 66EA

10 years 6 months

3

s 61M(2)

2 years 3 months

1 year 8 months

4 (Form 1)

s 61M(2)

3 years

2 years 3 months

5

s 61M(2)

2 years 3 months

1 year 8 months

6

s 61M(2)

2 years 2 months

1 year 7 months

7 (Form 1)

s 61M(2)

3 years

2 years 3 months

8

s 61M(2)

2 years 3 months

1 year 8 months

9

s 61M(2)

2…

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 3)

Details

AGLC: R v Van Ryn (No 3) [2016] NSWCCA 307
Case: [2016] NSWCCA 307
Decision Date: 16 December 2016

CaseChat Overview and Summary

The case of R v Van Ryn (No 3) involved the redetermination of the sentence for the appellant, who had been convicted of multiple counts of child sexual assault. The High Court was asked to review the sentence after the appellant had been granted special leave to appeal. The Court was alerted to an inadvertent error in the original sentencing, where the offence provision for one of the charges was incorrectly applied, leading to an overestimation of the potential penalties for the crimes. This error resulted in a harsher sentence being imposed than would have been appropriate if the correct legal provisions had been applied.

The central legal issue was whether the error in identifying the correct offence provision warranted a reduction in the appellant's sentence. The Court had to consider whether the initial error had a material impact on the sentence and whether the appellant should benefit from the correction. Additionally, the Court needed to determine the appropriate level of sentence reduction, if any, in light of the error and the Crown's concession that they did not oppose a lower aggregate sentence.

The Court found that the inadvertent error did indeed lead to an overestimation of the penalties for one of the offences. Given the Crown's concession, the Court opted to modestly reduce both the indicative and aggregate sentences from the original resentence. This reduction was considered appropriate given the circumstances, and the Court took care to ensure that the revised sentence remained reflective of the seriousness of the crimes committed. The outcome of the appeal resulted in a more accurate reflection of the penalties that should have applied under the correct legal provisions.

Orders