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

1. 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.

2. 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").

3. 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 years 2 months	1 year 7 months
10	s 61O(2)	1 year 10 months	1 year 5 months
2nd Indictment
1 (Form 1)	s 61M(2)	3 years	2 years 3 months
2	s 61M(2)	3 years	2 years 3 months
3	s 66C(4)	4 years 6 months
4	s 66C(4)	5 years 3 months

4. Some months after the principal judgment was handed down the Crown drew the Court's attention to the fact that the offence in Count 9 of the 1st Indictment was contrary to s 61M(1) of the Crimes Act 1900 (NSW), not s 61M(2). How the Court was misled as to this is explained in R v Van Ryn (No 2) [2016] NSWCCA 160 at [3]-[5].

5. R v Van Ryn (No 2) was concerned with an application by the Crown to have the error corrected by recourse to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court refused the application because it did not believe that it had the power under that provision to make any correction.

6. Mr Van Ryn applied for special leave to appeal to the High Court of Australia on a number of grounds. He was only successful in respect of a ground concerned with this particular error which the Crown conceded: Van Ryn v The Queen [2016] HCATrans 246.

7. On 11 November 2016 the High Court made consent orders allowing the appeal, setting aside this Court's orders of 10 February 2016 and remitting the matter for determination: Van Ryn v The Queen [2016] HCATrans 268.

8. At [30] of the principal judgment the Court provided the following summary in respect of Count 9 in the 1st indictment:

"Count 9 – Victim 7 – Between 1 January 2004 – 31 December 2005: Aggravated indecent assault of child under 16

Section 61M(2) – maximum penalty 10 years – SNPP 8 years.

Indicative sentence: 12 months – NPP 6 months.

Victim 7 grew up with his family in the Bega district and would often spend time at the respondent’s home. He recalled an occasion when he was 13 years old when he and some other boys and adults were there. At one point the respondent picked victim 7 up and carried him to a quiet area of the pool. The respondent positioned himself so that he had his back to the other persons in the pool area. He said to victim 7, “Do you want to be my special friend? You can be my special friend.” As he was saying this he was tickling victim 7 but then moved his hand down his chest to his groin. He then began fondling victim 7’s genitals on the outside of his board shorts. This continued for about a minute until someone approached."

9. Given the offence was in fact one against s 61M(1), the maximum penalty was one of 7 years and the standard non-parole period was 5 years.

10. In Mr Van Ryn's submissions which were filed on 2 December 2016 it was contended that the offence in Count 9 was less serious than that in Count 1, the only other offence against s 61M(1). The Crown disputed this in its submissions but, having regard to the age of the victim and the nature of the contact we believe there is force in Mr Van Ryn's submission.

11. The Crown submitted that the indicative sentence for Count 9 should not be "much less" than that for Count 1. That involves a misunderstanding of Mr Van Ryn's submission which was that it should be "much less" than the original 2 years and 2 months for Count 9 and "less" than the sentence indicated for Count 1.

12. We have concluded that the appropriate sentence for Count 9 should be one of 1 year and 8 months with a non-parole period of 1 year and 3 months.

13. It is necessary then to reconsider what the aggregate sentence should be.

14. To understand the impact of the reduction of the sentence for Count 9, it is worth noting that the original assessment of this Court resulted in indicative sentences totalling 47 years and it now will become 46 years and 6 months. This is in respect of what was described in the principal judgment (at [279]) as Mr Van Ryn's "predatory sexual abuse of 9 children in a period exceeding 10 years".

15. In all but exceptional circumstances, a minor error and correction of this nature would not give rise to any basis to doubt the correctness of the aggregate sentence imposed. No precise arithmetic calculation and discounting of the individual sentences are involved. Considerations of totality are at the forefront of the determination.

16. However, the combination of the following matters make this an exceptional case where a different sentence should be imposed. First, the High Court granted special leave confined to this issue. It is reasonable to conclude that it would not have done so were there not at least some real possibility of the point affecting the aggregate sentence. Secondly, the Crown (who raised the point in the first place) did not oppose the imposition of a lower sentence. Thirdly, given the length of the total sentence, even a very small reduction (say, of 1 per cent of the total sentence) nevertheless amounts to a little more than 2 months.

17. For these reasons, in re-exercising the sentencing discretion we would impose an overall sentence of 17 years and 9 months with a non-parole period of 13 years and 4 months.

Orders

18. We make the following orders:

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.

**********

Decision last updated: 16 December 2016