Ryan v R

Case [2009] NSWCCA 183 23 June 2009

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New South Wales
Court of Criminal Appeal

CITATION: Ryan v R [2009] NSWCCA 183

HEARING DATE(S): 23 June 2009

JUDGMENT DATE:
23 June 2009

JUDGMENT OF: Spigelman CJ at 1, 37, 40; McClellan CJatCL at 39; Johnson J at 2

EX TEMPORE JUDGMENT DATE: 23 June 2009

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - supply commercial quantity of prohibited drug - possess unregistered firearm - 40 offences on Form 1 - whether error in approach to sentence with respect to rehabilitation, remorse and contrition - no error established

LEGISLATION CITED: Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996

CATEGORY: Principal judgment

CASES CITED: R v Osenkowski (1982) 5 A Crim R 594
R v Micallef (1990) 50 A Crim R 465
R v Lenthall [2004] NSWCCA 248
House v The King (1936) 55 CLR 499
R v Merritt (2004) 59 NSWLR 557
R v Hunt [2002] NSWCCA 482
R v Govinden (1999) 106 A Crim R 314
R v Baker [2000] NSWCCA 85
Attorney General’s Application Under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146

PARTIES: Jodi Cian Ryan (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/7610744

COUNSEL: Mr AJ Bellanto QC; Mr T Healey (Applicant)
Mr L Babb SC; Ms M Rabsch (Respondent)

SOLICITORS: Bilbie Dan (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/7617

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 9 September 2008

2008/7610744

SPIGELMAN CJ
McCLELLAN CJ at CL
JOHNSON J
23 JUNE 2009

Jodi Cian Ryan v Regina

Judgment

1 SPIGELMAN CJ: I invite Johnson J to deliver the first judgment.

2 JOHNSON J: The Applicant, Jodi Cian Ryan, seeks leave under s.5(1)(c) Criminal Appeal Act 1912 to appeal against sentences imposed by his Honour Judge Coolahan in the District Court on 9 September 2008.

3 The Applicant pleaded guilty to one count of supplying not less than the commercial quantity of a prohibited drug (300 grams of amphetamines) contrary to s.25(2) Drug Misuse and Trafficking Act 1985, for which the maximum penalty was imprisonment for 20 years or a fine of $385,000 or both, with a standard non-parole period of 10 years. The Applicant pleaded guilty as well to one count of possession of an unregistered firearm contrary to s.36(1) Firearms Act 1996, for which the maximum penalty was imprisonment for 10 years.

4 The Applicant requested that no fewer than forty offences be taken into account on a Form 1 when passing sentence on the drug supply charge. The offences on the Form 1 comprised 26 offences of dealing with property suspected of being the proceeds of crime, three offences of possession of a prohibited drug (cannabis, amphetamine and methylamphetamine), two offences of not keeping a firearm safely (a pistol), possession of ammunition without a permit, four offences of possession of prohibited weapons (being a Taser, a mace,…

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 R [2009] NSWCCA 183
Case: [2009] NSWCCA 183
Decision Date: 23 June 2009

CaseChat Overview and Summary

The appellant, Ryan, appealed against his sentence for a variety of drug and firearms offences. Ryan was found guilty of possessing an unregistered firearm and supplying a commercial quantity of a prohibited drug. The appellant had 40 prior offences on Form 1, and the trial judge sentenced him to a total of 16 years imprisonment. The issues before the court were whether the trial judge erred in his approach to sentencing with respect to rehabilitation, remorse and contrition.

The court held that there was no error in the trial judge's approach to sentencing. The judge had taken into account the seriousness of the offences, the appellant's criminal history, and the need for deterrence. The court noted that the appellant had shown some remorse and contrition, but this was not enough to warrant a more lenient sentence. The court also held that the appellant's lack of rehabilitation efforts did not warrant a reduction in sentence. The court held that the sentence imposed was appropriate and did not establish any error in the trial judge's approach to sentencing.

The appeal was dismissed, and the sentence of 16 years imprisonment was upheld. The court held that the trial judge had considered all relevant factors in imposing the sentence, and that there was no error in his approach. The court also held that the sentence was proportionate to the seriousness of the offences and the appellant's criminal history.

Orders