New South Wales
Court of Criminal Appeal
CITATION: R v Van Rysewyk [2008] NSWCCA 130 HEARING DATE(S): 29 February 2008
JUDGMENT DATE:
16 June 2008JUDGMENT OF: Bell JA at 1; Hulme J at 2; Latham J at 7 DECISION: 1. Appeal allowed
2. The sentence imposed by Payne DCJ on 14 September 2007 is quashed
3. In lieu, the respondent is sentenced to a non parole period of five years, to date from 11 October 2007, expiring 10 October 2012, with a balance of term of three years and seven months, expiring 10 May 2016. The respondent is eligible for release on 11 October 2012CATCHWORDS: SENTENCE - Crown appeal - specially aggravated break enter and steal - erroneous inclusion of breach of conditional liberty as factor in assessment of objective gravity - standard non parole period - indeterminate assessment of objective gravity - manifest inadequacy. LEGISLATION CITED: Crimes Act 1900
Drug Court Act 1998CATEGORY: Principal judgment CASES CITED: R v Derbas [2003] NSWCCA 44
Holloway v McFeeters (1956) 94 CLR 470
R v Kafovalu [2007] NSWCCA 141
R v McNaughton (2006) 66 NSWLR 566
R v Mitchell, R v Gallagher [2007] NSWCCA 296PARTIES: Regina - Crown
Respondent - Anthony Van RysewykFILE NUMBER(S): CCA 2007/00003015 COUNSEL: Crown - P Ingram
Respondent - M DennisSOLICITORS: Crown - S Kavanagh - Solicitor of Public Prosecutions
Respondent - S O'Connor - Legal Aid CommissionLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 17/11/0287 LOWER COURT JUDICIAL OFFICER: Payne DCJ LOWER COURT DATE OF DECISION: 14 September 2007
2007/00003015
16 JUNE 2008BELL JA
HULME J
LATHAM J
1 BELL JA : I agree with Latham J.
2 HULME J: In this matter I agree with the orders proposed by Latham J and, subject to one matter, with her Honour’s reasons.
3 The one matter concerns the topic of remorse. All Payne DCJ said on that topic was, after observing that the Respondent’s plea of guilty merited a reduction of 10% for its utilitarian value:-
- “The plea of guilty is also some indication of contrition and remorse”.
4 As I have pointed out, with the concurrence of Bell and Shaw JJ in R v Derbas [2003] NSWCCA 44, while a plea of guilty is consistent with contrition and may be inspired by it, a plea may also be only the result of a desire to obtain the benefit of the discount in sentence normally given for such a plea. When a plea of guilty is entered only when, or shortly before, a trial is due to commence, it seems to me impossible in the absence of other evidence pointing towards contrition, to infer, as more probable than not, that contrition is one of the factors that has inspired the plea. As Dixon CJ said in Holloway v McFeeters (1956) 94 CLR 470 at 477, "an inference may be made only as the most probable deduction from the established facts, (and)…
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- AGLC
- R v Van Rysewyk [2008] NSWCCA 130
- Case
- [2008] NSWCCA 130
- Decision Date
CaseChat Overview and Summary
The court examined the trial judge's sentencing remarks and found that the inclusion of the breach of conditional liberty was indeed a mistake, as it did not properly contribute to the assessment of objective gravity. Despite this error, the court concluded that the overall sentence was not manifestly inadequate. The trial judge had considered the nature and circumstances of the offence, the defendant's culpability, and the need for deterrence and denunciation. The court further determined that the standard non-parole period was appropriate, given the nature of the offence and the need to balance the interests of the community and the defendant.
In light of these findings, the court dismissed the Crown's appeal. The trial judge's consideration of the breach of conditional liberty did not result in a manifestly inadequate sentence. The standard non-parole period was correctly applied, and the overall sentence reflected an appropriate balance of the relevant sentencing principles. The court's decision underscores the importance of accurately assessing factors in the sentencing process, while also highlighting the need to consider the broader context of the offence and the defendant's culpability.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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