Ridley v The Queen

[2008] NSWCCA 299

New South Wales
Court of Criminal Appeal

CITATION:	Ridley v R [2008] NSWCCA 299
HEARING DATE(S):	13 November, 2008
JUDGMENT DATE:	13 November 2008
JUDGMENT OF:	Bell JA at 12; Blanch J at 1; Hall J at 14
EX TEMPORE JUDGMENT DATE:	13 November 2008
DECISION:	Leave to appeal granted. Appeal against severity of sentence be allowed. Sentence imposed in the District Court quashed. In lieu, sentence to be deferred on condition the applicant enter into a bond under s9 Crimes (Sentencing Procedure) Act, 1999 to be of good behaviour for a period of three years with no order as to supervision.
LEGISLATION CITED:	Crimes Act, 1900, s73(2) Criminal Appeal Act, 1912, s6(3) Crimes (Sentencing Procedure) Act, 1999, s9
CATEGORY:	Principal judgment
PARTIES:	Colin Ridley (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/11840
COUNSEL:	A P Cook SC (Applicant) V Lydiard (Crown)
SOLICITORS:	S O'Connor, Legal Aid Commission S Kavanagh, Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/31/0233
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ
LOWER COURT DATE OF DECISION:	11 April, 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Colin Ridley

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/11840

BELL JA
BLANCH J
HALL J

13 November, 2008

Colin RIDLEY v Regina

JUDGMENT

1 BLANCH J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 11 April 2008 in respect of one count under s73(2) of the Crimes Act 1900. The charge was:

“That he between 1 December 2003 and 31 December 2003 at
Port Macquarie in the State of New South Wales did have sexual intercourse with Rebecca Louise Ridley, a person of the age of 17 years and under the age of 18 years, Rebecca Ridley then being in the special care of Colin Ridley.”

2 The maximum penalty for this offence is four years imprisonment. The applicant pleaded guilty at the earliest opportunity and he was sentenced to imprisonment for a period of 12 months with a non-parole period of six months to commence on 11 April 2008. He was released on bail pending the outcome of this appeal on 11 June 2008.

3 The complainant was born on 9 March, 1986. Her mother and father separated and subsequently her mother formed a relationship with the applicant and she and her brother lived with her mother and the applicant in Port Macquarie. Shortly after Easter, 2003 the relationship between the applicant and the complainant's mother broke down and the applicant left the family home and when did he so, the complainant went with him. At that stage she was 17 years old. The applicant and the complaint moved into a residence in Church Street and they began to have sexual intercourse. The applicant said that the first act was at the invitation of the complainant. They stopped living together in 2004 and as a result of their relationship a child was born in March 2004.

4 The complainant's complaint related to a series of asserted non-consensual acts of intercourse between April, 2001 and December, 2003. The trial of the applicant in the District Court was on an indictment which contained six counts of sexual intercourse without consent and a seventh count which is the subject matter of this application. It was an alternative to the sixth count and the applicant pleaded guilty to it. The judge directed a verdict of not guilty in respect of counts 2, 3 and 4 and the jury acquitted the applicant in relation to counts 1, 5 and 6. In the course of the sentencing proceedings, the victim impact statement was tendered. That statement related to the impact on the complainant of the alleged series of offences including those on which the applicant had been acquitted.

5 An usual aspect of this case is that the offence under s73(2) was introduced into 2003 into the Crimes Act and came into operation on 13 June, 2003. Prior to that no similar offence existed and accordingly, the sexual relationship which did exist between the applicant and the complainant was not an offence until 13 June, 2003.

6 The applicant had no prior criminal convictions. A number of testimonials were tendered leading the sentencing judge to say he had no doubt that the applicant is a person of good reputation amongst his associates and the people amongst whom he worked. The judge also accepted he maintained a good relationship with the three children of an earlier marriage. The judge also found he was a person unlikely to re-offend.

7 It was a difficult exercise bearing in mind the impact on the victim as set out in the victim impact statement and the difficulty in attempting to ascribe to this offence some part of that impact when there could be expected to be an impact from the relationship before the offence was even created.

8 The judge acknowledged in his remarks that the question of sentencing in the case caused him great difficulty. He ultimately came to the conclusion that a prison sentence should be imposed. In proceeding to sentence, the judge accepted that the relationship was consensual.

9 The function of this Court in considering the appeal is governed by s6(3) of the Criminal Appeal Act, 1912, which states:

“(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal..”

10 In my view a less severe sentence is warranted in this case. It is a most unusual circumstance that this conduct was made illegal partway through a consensual relationship. The applicant did plead guilty to the offence at the earliest opportunity and he is a person of prior good character and apart from this matter, he bears a high reputation in the community. He has also served two months of the prison sentence which was imposed before he was released on bail pending the appeal.

11 In my view, the appropriate order now is that leave to appeal be granted, the appeal against the severity of the sentence be allowed, the sentence imposed in the District Court be quashed and instead, I should defer passing sentence on condition he enters into a bond under s9 of the Crimes (Sentencing Procedure) Act, 1999 to be of good behaviour for a period of three years. I do not see that there is a need for an order for supervision.

12 BELL JA: I agree with the orders proposed by Justice Blanch and with his Honour's reasons. I would add that in my determination it is significant that the primary judge found as a circumstance of aggravation for the purpose of s73 ss2(g) that emotional harm of a substantial kind had been done to the complainant and his Honour treated that circumstance as a significant aggravating factor. In this regard his Honour took into account that "It was in those circumstances that the offender took advantage of the young woman who had been his step-daughter entirely. I can only conclude for his own gratification continued for that purpose, it was unprotected sex that this consequence of a child being born who has now been left in the care of the victim."

13 In the course of submissions Mr Cook SC who appeared on the applicant's behalf noted that having regard to the birth date of the child it was entirely probable that he had been conceived at a time when the conduct was not proscribed by law. In those circumstances to have taken that circumstance into account and as a significantly aggravating circumstance in my opinion involved clear error.

14 HALL J: I also agree and I agree with the additional observations made by the presiding judge.

15 BELL JA: The order of the Court are the orders proposed by Justice Blanch.

oOo