Regina v Ryan

[2002] NSWCCA 171

CITATION:	Regina v Ryan [2002] NSWCCA 171
FILE NUMBER(S):	CCA 60726/01
HEARING DATE(S):	8 May 2002
JUDGMENT DATE:	8 May 2002
PARTIES :	Regina v Lana Louise Ryan
JUDGMENT OF:	Greg James J at 1; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/61/0038
LOWER COURT JUDICIAL OFFICER :	His Honour Judge Nield

COUNSEL :	Applicant - A.C. Haesler Crown - D.M. Woodburne
SOLICITORS:	Applicant - South Eastern Aboriginal Legal Service Crown - S.E. O'Connor
CATCHWORDS:	Sentencing - severity appeal - insufficient allowance made for subjective circumstances associated with applicant's aboriginality.
LEGISLATION CITED:	Crimes Act 1900, s97(1)
CASES CITED:	Neal v The Queen (1982) 149 CLR 305 R v Ceissman [2001] NSWCCA 73 R v Daniel [1998] 1 QD 499 R v Fernando (1992) 72 A Crim R 58 Regina v Fernando [2002] NSWCCA 28 Regina v Henry (1999) 46 NSWLR 346 R v Hickey (NSWCCA, 27/9/1994, unreported) R v Pitt [2001] NSWCCA 156 R v Stone (1995) 84 A Crim R 218
DECISION:	Appeal allowed. See par 32

60726/01

GREG JAMES J
CARRUTHERS AJ

Wednesday, 8 May 2002

REGINA v Lana Louise RYAN

Judgment

1 GREG JAMES J: I agree. The orders therefore will be as proposed by Carruthers AJ.

2 CARRUTHERS AJ: Lana Louise Ryan seeks leave to appeal against a sentence imposed upon her at the Parramatta District Court by his Honour Nield DCJ on 12 October 2001.

3 On 6 August 2001 the applicant pleaded guilty before the District Court at Bathurst (Orange sittings) to one count of robbery being armed with an offensive weapon, namely a knife, pursuant to s 97(1) of the Crimes Act 1900, which offence carries a maximum penalty of twenty years imprisonment.

4 His Honour sentenced the applicant to a period of imprisonment for five years to date from 14 November 2000, (the date upon which she was taken into custody) and to expire on 13 November 2005 and fixed a non parole period of three years and nine months to commence on 14 November 2000 and to expire on 13 August 2004. His Honour declined to find that there were any special circumstances.

5 The applicant was born on 19 July 1977 of Australian Aboriginal descent, on her mother’s side. Unfortunately, she does have a lengthy prior criminal record. She has been dealt with for eighty prior offences, eighteen in the Children’s Court and sixty two in the Local Court. Of these offences, forty-two involved dishonesty of one form or another - larceny, stealing, shoplifting, receiving and possessing stolen goods - and ten of these offences have involved the use of violence – also an offence of assault occasioning actual bodily harm, seven offences of assault, and two offences of assaulting police. Five offences have involved the unlawful entry of someone else’s property.

6 It would appear, however, that in relation to these matters she has not received a longer fixed term or minimum term than six months, and she has no prior record of having committed the offence of armed robbery with an offensive weapon.

7 The subject offence was committed by the applicant in company with her de facto husband of some years standing, Bradley Burns. Mr Burns in fact pleaded not guilty and proceeded to trial, although a jury ultimately convicted him.

8 His Honour summarised the relevant facts as follows:

“Shortly stated, what the prisoner and Mr Burns did was this. After taking a knife with them, they decided to rob the complainant of her money. They walked to her shop. As they neared her shop, they saw Mr Towns enter the shop. They waited outside the shop until Mr Towns left the shop. When there was no one in the vicinity of the shop they entered the shop. After a subterfuge, Mr Burns produced a knife, threatened the complainant with it and demanded that she open the shop’s till. After she had opened the till, Mr Burns grabbed about $100 in notes and coins from the till. The Mr Burns went from the shop through the storeroom into the lounge room of the complainant’s home where her four year old daughter was dressing. After the complainant screamed out for her husband Mr Burns and the prisoner ran away from the shop.”

9 With regard to the offence itself, his Honour made the following remarks:

“The particular offence was planned, albeit poorly so and without sophistication, but planned nonetheless. The offence was committed by two people acting together. The offence was committed by people who have convictions for dishonesty and the use of violence. The victim of the offence was in a vulnerable position. The prisoner and her co offender used a knife to threaten the victim. Because of the circumstances, fear was instilled in the victim. I do not doubt that Mr Burns played a more significant role to that played by the prisoner. Mr Burns had the knife and threatened the complainant with it. Mr Burns took the money from the shop’s till. Mr Burns walked from the shop through the storeroom and into the adjoining lounge room. The prisoner’s counsel submitted that the prisoner was under the influence of Mr Burns. I doubt that was the case. Having said that, however, as I have said, I accept that Mr Burns played a more significant role than the prisoner”.

10 His Honour had before him a report by Mr Peter G Champion, Consultant Clinical Psychologist, dated 13 August 2001. Mr Champion conferred with the applicant at the Mulawa Detention Centre on 13 August 2001 when, according to Mr Champion, he attempted to make an assessment of her. However, she was not keen to participate in the process for a variety of reasons and so a relatively limited interview was completed. The applicant also declined to participate in formal testing.

11 Mr Champion’s report is helpful, despite the difficulties under which he was operating. As to the applicant declining to participate in psychometric testing, Mr Champion suspected that her mental state, her lack of trust, and a concern that such testing may label her “mental” conspired to cause her to resist participation.

12 The report contained the all to familiar history of a person in the applicant’s situation, with a dysfunctional family life, drug dependence and addiction. However, the applicant denied that she was an addict. Mr Champion thought that she was resistant to the idea of drug rehabilitation partly because of denial and partly because, as he suspected, a terror of having to confront the demons of her past life (more particularly her childhood and early adolescence). She readily acknowledged to Mr Champion that she cannot cope with issues from the past being raised. The applicant was, at the time of the report, on a methadone program. She also suffers from hepatitis C.

13 The applicant gave a history to Mr Champion of a range of significant head injuries over the years, in part as a result of domestic violence, in part as a result of other assaults, the latter including an incident when she was stabbed in various parts of her body, including her head, and suffered a loss of consciousness.

14 The applicant has a young son as a result of her relationship with Mr Burns. However, her mother in law has taken over the upbringing of that child, albeit the child is, in Mr Champion’s opinion, the focus of the applicant’s life.

15 Mr Champion relevantly commented:

“In terms of the likelihood of Ms Ryan offending again in this fashion, on the basis of her report, it would seem clear that this is to a large extent dependent on her ability to deal with her D & A issues (and the emotional problems underpinning them). Ms Ryan seems to be pessimistic about the future, though to some extent this is a function of her depression; however, unless she can effect changes in her life, then the problems will remain and the risk of offending (perhaps not in this form) will remain”.

16 As to the applicant’s rehabilitation, his Honour said:

“It is better for all concerned that the prisoner cease her criminal offending. However, I doubt that she will do so.
I doubt that she is motivated towards rehabilitation and I doubt that she will be rehabilitated.”

17 As to the plea of guilty, his Honour allowed a discount of fifteen percent thereby reducing by one year a nominal starting point of six years.

18 As to special circumstances his Honour said:

“I cannot see any special circumstance, although I suppose that the prisoner’s need for appropriate treatment, as referred to by Mr Champion in his report, might be a special circumstance, except Mr Champion does not indicate what treatment is required, nor the length of that time that that treatment is required”.

19 We were referred by counsel in their written and oral submissions to the relevant cases dealing with the sentencing of persons of Australian Aboriginal or part Aboriginal descent, and of course, to the guideline judgment in Regina v Henry (1999) 46 NSWLR 346.

20 It is clear from the evidence before his Honour that the applicant has a history of poly-substance abuse. Further, that she was probably affected by the ingestion of drugs at the time of the subject offence, and that she embarked upon this criminal enterprise with Mr Burns in order to obtain money to feed their drug addictions. It would seem manifestly clear from reading the record of interview that Ms Ryan was seriously affected by the ingestion of drugs when she was answering or, at times, attempting to answer, in a somewhat confused fashion questions by the police.

21 The applicant suffered from a young age from a chronic mood disorder depression. Her drug dependence was explained, in part, as being self medication for this condition. She also gave a history of being the victim of domestic violence and other serious acts of violence. She has suffered head injury as a consequence, and there is a possibility of neurological damage of a permanent nature.

22 In the ERISP interview which was conducted after her arrest she admitted the commission of the offence and, although she pleaded not guilty until the date of her trial, her admissions meant that realistically a conviction would have been inevitable.

23 In essence, counsel for the applicant contended that his Honour significantly undervalued the extent to which the applicant’s Aboriginality, her mental condition, the effects of her drug dependence and her withdrawal problems threw light on the commission of the offence.

24 In this context it is pertinent to refer to certain remarks made by the Chief Justice (with whom Wood CJ at CL and Kirby J agreed) in Regina v Fernando [2002] NSWCCA 28 at paragraphs 64 to 69:

“64. As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes, by deterring both the particular offender and other possible offenders – referred to as personal and general deterrence respectively. In a case of the character now before the Court, by an offender with this record, the protection of the community requires a substantial period of imprisonment. It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal circumstances which have led an individual into a life of crime.
65. Such considerations are present in the case before the Court. The Respondent has a personal history of deprivation that is, regrettably, far too common amongst young people, particularly Aboriginal youth.
66. The sentencing principles to be applied by a sentencing court apply in every case, irrespective of the membership of the particular offender of an ethnic or other group. Nevertheless, when imposing sentences courts must take into account, pursuant to those very principles of general application, all of the facts relevant to the circumstances of the offence and of the offender, including facts which may exist by reason of the person’s membership of a particular group. (See eg Neal v The Queen (1982) 149 CLR 305 at 326).

67. Aborigines who commit crimes of violence are not accorded special treatment by the imposition of lighter sentences than would otherwise be appropriate having regard to all of the relevant considerations, including the subjective features of a particular case. An offender is not entitled to any special leniency by reason of his or her Aboriginality. The principle of equality before the law requires sentencing to occur without differentiation by reason of the offender’s membership of any particular racial or ethnic group. Nevertheless, particular mitigating factors may feature more frequently in some such groups than they do in others. (See R v Fernando (1992) 72 A Crim R 58 at 62-63 as further explained in R v Hickey (NSWCCA, 27 September 1994: unreported): R v Stone (1995) 84 A Crim R 218 at 221-223; R v Ceissman [2001] NSWCCA 73 esp at [29]-]33]; R v Pitt [2001] NSWCCA 156 at [19]-[21].)

68. The criminal system has accurately been described as a ‘hopelessly blunt instrument of social policy and its implementation by the courts is a totally inadequate substitute for improved education, health, housing and employment for Aboriginal communities’ R v Daniel [1998] 1 QD 499 at 530 per Fitzgerald P. His Honour outlined the difficulties that arise in this regard at 530-532.
69. The circumstances of the present case are, regrettably, repeated across the entire community. This Court frequently hears appeals from young people who have suffered deprivation in their personal life, have succumbed to addiction - usually first to marijuana and then to heroin - and committed crimes of burglary and armed robbery in order to acquire funds to feed the habit”.

25 In my respectful view his Honour’s sentencing regime did not give sufficient weight to the subjective considerations referred to in Regina v Fernando which reflect views expressed in earlier judgments of this Court. One immediately acknowledges, of course, that Regina v Fernando post dated the subject sentencing process.

26 The trial Judge was faced with a difficult task. It is always a difficult exercise for a sentencing Judge to balance cases involving such strong subjective circumstances as the present and the important question of deterrence in dealing with such a serious crime as the subject one. Persons such as the victim in the present case are in a very vulnerable position and the law should protect them from invasion of their premises and threats of violence associated with an offensive weapon in order for offenders to gain access to the cash in their possession.

27 The principles enunciated by the Chief Justice in Regina v Fernando represent an affirmation of principles that have been developed within recent years insofar as the sentencing of Australian Aboriginals is concerned. The Chief Justice has clearly explained, in the passages which I have quoted above, the rationale behind such principles.

28 In the light of the clearly established principles which have now developed as applied to the facts of the subject case, I am persuaded, despite the forceful argument by the Crown to the contrary, that the intervention of this Court is called for. I allow for the fact that the applicant was on conditional liberty at the time of the offence, together with the seriousness of the offence and her lengthy past record.

29 In these circumstances I would therefore propose that the application for leave to appeal be allowed and the appeal upheld.

30 The Court has been provided with an affidavit sworn this day by the applicant, which does contain some encouraging material. Amongst other things the applicant advises that since being in Mulawa she has been working almost every day as dawn sweeper. This involves getting up early and being given a task to complete. She thinks she does a good job. Also since being at Mulawa she has been attending Church most weeks and attending educational classes. Importantly, she has had counselling with a psychologist since being at Mulawa. She concludes in her affidavit:

“I now feel settled at Mulawa. I have 50 mls daily and feel confident I can get off it (methadone) before my release. I have made appointments to see D & A but have not yet seen them”.

31 Hopefully the material in this affidavit represents a change of heart on the part of the applicant and an understanding that if she is not to change her ways and proceed towards rehabilitation her future is very bleak indeed.

32 The subjective circumstances to which I have referred, together with the material in the affidavit constitute, in my view, special circumstances. Therefore I would propose that the sentence imposed by his Honour be set aside. I would propose in lieu thereof the head sentence be imprisonment for four years commencing on 14 November 2000 and expiring on 13 November 2004. I would propose that the non-parole period be two years and six months to commence on 14 November 2000 and to expire on 13 May 2003. Such a non parole period would provide a period of eighteen months by way of parole which, in my view, would be adequate.