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R v Van Rysewyk

R v Van Rysewyk

Case [2008] NSWCCA 130 16 June 2008

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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 2008

JUDGMENT 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 2012

CATCHWORDS: 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 1998

CATEGORY: 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 296

PARTIES: Regina - Crown
Respondent - Anthony Van Rysewyk

FILE NUMBER(S): CCA 2007/00003015

COUNSEL: Crown - P Ingram
Respondent - M Dennis

SOLICITORS: Crown - S Kavanagh - Solicitor of Public Prosecutions
Respondent - S O'Connor - Legal Aid Commission

LOWER 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

BELL JA
HULME J
LATHAM J
16 JUNE 2008

REGINA v ANTHONY VAN RYSEWYK

Judgment

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)…

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 Rysewyk

Details

AGLC: R v Van Rysewyk [2008] NSWCCA 130
Case: [2008] NSWCCA 130
Decision Date: 16 June 2008

CaseChat Overview and Summary

The case of R v Van Rysewyk involved the defendant, Van Rysewyk, appealing against his sentence for a specially aggravated break, enter and steal offence. The Crown had appealed the sentence, arguing that the inclusion of a breach of conditional liberty as a factor in the assessment of objective gravity was erroneous. The court was required to determine if the trial judge's consideration of this factor was a mistake and if so, whether this error led to a manifest inadequacy in the sentence. The court also needed to assess if the standard non-parole period was appropriate and if the trial judge's assessment of objective gravity was indeterminate.

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