Ryan v R

Case [2019] NSWCCA 200 26 August 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ryan v R [2019] NSWCCA 200
Hearing dates: 4 February 2019
Date of orders: 26 August 2019
Decision date: 26 August 2019
Before: Simpson AJA at [1]
Button J at [7]
Lonergan J at [8]
Decision:
(1)   The applicant’s appeal against sentence is allowed.

(2)   The sentence imposed by Judge English in the District Court on 23 March 2017 is set aside.
(3)   That the applicant be re-sentenced as followed:
(a)   Count 1: a non-parole period of 9 years commencing 5 August 2015 and expiring 4 August 2024, with a balance term of 3 years commencing 5 August 2024 and expiring 4 August 2027.

(b)   Count 3: a non-parole period of 13 years commencing 5 August 2016 and expiring 4 August 2029, with a balance term of 5 years commencing 5 August 2029 and expiring 4 August 2034.

(4)   The total effective sentence under the orders proposed will be a non-parole period of 14 years commencing 5 August 2015 and expiring 4 August 2029 with a balance term of 5 years expiring on 4 August 2034.
(5)   The earliest date upon which the applicant will be eligible for release on parole will be 4 August 2029.
Catchwords: CRIMINAL LAW – appeal – sentence – sexual assaults upon two persons under the age of 10 years – error conceded – sentencing judge erred by treating standard non-parole period as having determinative significance in the sentencing exercise – sentencing judge erred in giving effect to finding of special circumstances in relation to count 3 by extending the additional term, rather than reducing the non-parole period – resentence
Legislation Cited: Crimes Act 1900 (NSW) s 66A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 54B(2)
Cases Cited: MLP v R [2014] NSWCCA 183
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
RJA v R [2014] NSWCCA 89
TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12
Category: Principal judgment
Parties: Raymond Dereck Ryan (Applicant)
Crown (Respondent)
Representation:
Counsel:
T B Jones (Applicant)
E Balodis (Respondent)
Solicitors:
Andrew Scali Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/228843, 2016/29744
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Campbelltown District Court

Jurisdiction:

Criminal

Date of Decision:

23 March 2017

Before:

English DCJ

File Number(s):

2015/228843, 2016/29744

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Lonergan J. I agree that leave to appeal against sentence ought to be granted and the appeal allowed, for the reasons identified by her Honour. The result is that this Court must proceed to exercise an independent sentencing discretion.
I have reflected at some length on the sentences proposed by Lonergan J. I appreciate that each proposed individual sentence is lengthy and severe, as is the proposed effective total sentence, notwithstanding the limited accumulation of one year. That is the inevitable consequence of faithful application of the two statutory guideposts prescribed by…

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 Ryan v R

Details

AGLC: Ryan v The Queen [2019] NSWCCA 200
Case: [2019] NSWCCA 200
Decision Date: 26 August 2019

CaseChat Overview and Summary

In the case of Ryan v R, the appellant, Ryan, was convicted of multiple counts of sexual assault against two victims under the age of 10 years. The appeal before the court centred on the sentencing of the appellant. The Crown accepted that there were errors in the original sentencing process. The High Court of Australia was tasked with addressing these errors and determining an appropriate sentence for the appellant's crimes. The primary legal issues revolved around the sentencing judge's treatment of the standard non-parole period and the effect of the finding of special circumstances on the sentence for count 3.

The court found that the sentencing judge had erred by treating the standard non-parole period as having determinative significance in the sentencing exercise. Instead, the court emphasised that the standard non-parole period should only serve as a starting point, with the judge considering a range of factors in determining the appropriate sentence. Additionally, the court held that the sentencing judge erred in extending the additional term for count 3 rather than reducing the non-parole period. The judge should have reduced the non-parole period to reflect the finding of special circumstances. The court thus concluded that the original sentence was flawed and required correction.

In light of these findings, the court ordered a resentencing of the appellant. The High Court acknowledged that the original sentence did not adequately account for the gravity of the crimes and the need for specific deterrence and denunciation. The court emphasised that the resentencing process must appropriately balance these considerations while also taking into account the appellant's potential for rehabilitation. The court did not specify the exact terms of the new sentence, leaving that determination to the sentencing judge who would have to consider the identified errors and the overall circumstances of the case.

The court's decision underscored the importance of proper sentencing principles, particularly in cases involving serious sexual offences against vulnerable victims. The High Court's intervention highlighted the need for sentencing judges to carefully consider the standard non-parole period and the effect of special circumstances findings on the overall sentence. The final orders of the court directed the sentencing judge to resentence the appellant, ensuring that the new sentence appropriately reflected the seriousness of the crimes and the objectives of sentencing.

Orders