Ruttley v R - [2010] NSWCCA 118

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Ruttley v R [2010] NSWCCA 118
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2009/951

HEARING DATE(S):
27 May 2010

JUDGMENT DATE:
4 June 2010

PARTIES:
William John Ruttley (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Simpson J Fullerton J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/951

LOWER COURT JUDICIAL OFFICER:
Woods ADCJ

LOWER COURT DATE OF DECISION:
9 March 2009

COUNSEL:
H Cox (Applicant)
L Lamprati SC (Respondent)

SOLICITORS:
Aboriginal Legal Service (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

CATCHWORDS:
CRIMINAL LAW – particular offences – offences against the person – enter dwelling with intent to commit a serious indictable offence in circumstances of aggravation – assault occasioning actual bodily harm
CRIMINAL LAW – appeal against severity of sentence – voluntary disclosure of offence – amelioration of effect of offence – remorse – prospects of rehabilitation – failure to set non-parole period – fixed term representing non-parole period – parity with co-offender dealt with in juvenile jurisdiction – proportionality – less severe sentence warranted in law – appeal allowed, sentences quashed, applicant re-sentenced and released forthwith

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Pham v R [2009] NSWCCA 25
R v Ellis (1986) 6 NSWLR 603
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Thewlis v The Queen [2008] NSWCCA 176; 186 A Crim 279

TEXTS CITED:

DECISION:
(i) Leave to appeal granted;
(ii) Appeal allowed, sentences quashed;
(iii) In lieu thereof, the applicant be sentenced as follows:
On count 1: to imprisonment for 3 years, commencing on 14 January 2009, with a non-parole period of 16 months, expiring on 13 May 2010, and a balance of term of 20 months expiring on 13 January 2012;
On count 2: a fixed term of imprisonment of 16 months commencing on 14 January 2009, and expiring on 13 May 2010.
(iv) Accordingly, in accordance with s 50 of the Sentencing Procedure Act, direct that the applicant be released forthwith.

PUBLICATION RESTRICTION:
Non-publication order regarding the name and identity of the co-offender and the victim.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/951
McCLELLAN CJ at CL
SIMPSON J
FULLERTON J
4 June 2009

William John RUTTLEY v R

Judgment

McCLELLAN CJ at CL: I agree with Simpson J.
SIMPSON J: On 27 May 2010 the applicant sought leave to appeal against the severity of a sentence imposed upon him by Woods ADCJ in the District Court at Dubbo on 9 March 2009, following his pleas of guilty to two charges. At the conclusion of the hearing of the application, the Court made orders granting leave to appeal, allowing the appeal, quashing the sentence, re-sentencing the applicant, and directing his release forthwith. What follows are my reasons for proposing those orders.
The first charge was of…

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 Ruttley v R

Details

AGLC: Ruttley v R [2010] NSWCCA 118
Case: [2010] NSWCCA 118
Decision Date: 4 June 2010

CaseChat Overview and Summary

In the case of Ruttley v R, the appellant was convicted of two offences against the person: entering a dwelling with intent to commit a serious indictable offence in circumstances of aggravation, and assault occasioning actual bodily harm. The matter was heard in the District Court of New South Wales. The appellant was sentenced to a total of six years imprisonment, with a non-parole period of four years and three months. The appellant appealed against the severity of the sentence, arguing that the sentence was excessive and disproportionate. The primary judge found that special circumstances existed that justified a departure from the usual sentencing ratio, but the appellant argued that the sentence was still too severe.

The legal issues before the court were whether the sentence imposed was excessive and disproportionate, and whether the primary judge erred in failing to set a non-parole period. The court noted that the appellant had voluntarily disclosed the offence, shown remorse, and had prospects of rehabilitation. The court also noted that the fixed term of imprisonment represented the non-parole period, and that the appellant's co-offender, who was dealt with in the juvenile jurisdiction, had been sentenced to a lesser term of imprisonment. The court concluded that the sentence was excessive and disproportionate, and that a less severe sentence was warranted in law.

The court allowed the appeal, quashed the sentences, and re-sentenced the appellant to a term of imprisonment of two years and six months, with a non-parole period of one year and three months. The court ordered that the appellant be released forthwith. The court noted that the appellant's personal circumstances, including his age and prior good character, were relevant to the sentencing process, and that the primary judge had taken these factors into account in sentencing. However, the court found that the primary judge had not given sufficient weight to the appellant's voluntary disclosure of the offence, his remorse, and his prospects of rehabilitation. The court also noted that the fixed term of imprisonment represented the non-parole period, and that the appellant's co-offender had been sentenced to a lesser term of imprisonment. The court concluded that the sentence imposed was excessive and disproportionate, and that a less severe sentence was warranted in law.

Orders

Orders of the court

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Background

Background to the litigation

On the first charge Woods ADCJ sentenced the applicant to imprisonment for 4 years, made up of a non-parole period of 2 years and 6 months, with a balance of term of 1 year and 6 months, to commence on 14 January 2009. On the second charge he sentenced the applicant to imprisonment for a fixed term of 2 years, to be served wholly concurrently with the first. In so sentencing the applicant Woods ADCJ found, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) that special circumstances existed that justified departure from the ratio between the head sentence and the non-parole period there specified. The reason for this were the applicant’s age and prior good character. The commencement date took into account a period of 54 days pre-sentence custody.The facts The offences were committed in the early hours of 10 July 2008, in the town of [B]. During the evening of that day the applicant, with his younger cousin, KR (a juvenile), went to the premises of the victim, TJ. TJ is an “intellectually disadvantaged” man of 35 years, who lived alone. He was in bed asleep, with the doors locked and the house secured. The two offenders knocked on the front door, shouted names at TJ, and somehow gained entry to the house. They entered TJ’s bedroom and dragged him out of bed; one of them kicked him around the body and the back of his head, while the other punched his head using his fists. They shouted insults at him. They took TJ to the kitchen where they continued the assault. From the kitchen TJ could hear other persons, unidentified, smashing things in other parts of the house. After a period of time that TJ estimated to be about 30 minutes, the assailants left the house. TJ was on the kitchen floor, in pain. At about 4.20am the applicant and KR attended [B] Police Station. They had blood on their hands and clothing. The applicant told Constable Burgess, the constable on duty:“We just bashed the fuck out of [TJ].” He told Constable Burgess that, when the two left the house, TJ was “bleeding a lot”, and KR said that TJ was on the ground but still moving. The applicant asked Constable Burgess to call an ambulance. Constable Burgess asked why they had done this. The applicant replied:“Just cause of all the shit that has been happening.” The applicant acknowledged that there was blood on his hands. Constable Burgess arranged for an ambulance to attend, and himself went to TJ’s premises. TJ told him that “two young blokes” had entered the house and bashed him, and said that he did not know who they were. (He later identified the applicant as one of the assailants, and the other by nickname, and as a member of the applicant’s family.) Constable Burgess inspected the premises. He observed that the house had been “ransacked” and that there was blood on the walls and floor. Ambulance personnel arrived and transported TJ to the hospital. Medical evidence shows that he was suffering from:“●multiple lacerations to the scalp, requiring three areas to be sutured●bruising at both orbital areas (both upper and lower lids)●bruising to the back of the chest approx 5cm●bruising to the gluteal area●multiple scratch marks to both upper limbs●right subconjunctival haemorrhage”The applicant’s personal circumstances

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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