Ryan v The Queen

Case [2001] HCA 21

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

VINCENT GERARD RYAN   APPELLANT

AND

THE QUEEN  RESPONDENT

Ryan v The Queen [2001] HCA 21
3 May 2001
S248/1999

ORDER

1.        Appeal allowed.

2.Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales dated 2 March 1998 and in place thereof, remit the matter to that Court for sentencing in accordance with the reasons for judgment of this Court.

On appeal from the Supreme Court of New South Wales

Representation:

P A Johnson SC with D Jordan for the appellant (instructed by Carroll & O'Dea)

A M Blackmore with R D Ellis for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ryan v The Queen

Criminal law – Sentencing – Sexual offences against children – Where appellant disclosed a large number of offences to police – Whether disclosure entitled appellant to a significantly discounted sentence – Whether the likelihood of disclosed offences being otherwise discovered should have been assessed.

Criminal law – Sentencing – Use of character in the sentencing process – Whether the appellant's otherwise good character entitled him to some leniency.

  1. McHUGH J.   This appeal is brought against an order of the Court of Criminal Appeal of New South Wales dismissing an appeal against sentences imposed in the District Court of New South Wales.  The appeal raises three issues:

    .Disclosure of previously unknown offences.  The appellant was a priest who had abused his position of trust by sexually assaulting young boys over a long period of time.  A large number of the offences became known to the police only because the appellant disclosed them.  The appellant claims that the sentencing judge erred in the sentencing process by failing to assess the likelihood of these disclosed offences being otherwise discovered.  He also claims that, by reason of the disclosure, he was entitled to a significant discount from the sentences otherwise appropriate but that the sentencing judge failed to give him a significant discount.  Did the Court of Criminal Appeal err in holding that the learned judge had made no error in respect of the appellant's disclosure of offences?

    .Good character.  The sentencing judge held that, except for the offences, the appellant was a man of unblemished character and reputation.  The appellant claims that the learned judge erred in holding that the appellant's unblemished character and reputation did not entitle him to any leniency whatsoever.  The judge said that unblemished character was something that was expected of a priest.  Did the Court of Criminal Appeal err in holding that the sentencing judge made no error in giving no leniency for good character?

    .Manifestly excessive sentence.  The appellant claims that his sentence was manifestly excessive having regard to the correct principles of sentencing.  But no argument was addressed to the issue.  The…

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AGLC
Ryan v The Queen [2001] HCA 21
Case
[2001] HCA 21
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the sentencing of the appellant, Ryan, who had pleaded guilty to numerous sexual offences against underage males. The dispute centred on whether the sentencing judge and the Court of Criminal Appeal had adequately considered the mitigating factors of the appellant's disclosure of further offences and his otherwise good character.

The legal issues before the High Court were whether the sentencing judge erred in not affording a significant discount for the appellant's disclosure of offences that may not have otherwise been discovered by the police, and whether the appellant's otherwise good character entitled him to some leniency in sentencing. The Court was also required to consider whether the Court of Criminal Appeal had erred in dismissing the appellant's appeal against his sentence.

The High Court reasoned that the sentencing judge had erred in not giving sufficient weight to the appellant's otherwise good character, finding that the appellant was indeed of good character and was entitled to some leniency on that basis. The Court also found that the Court of Criminal Appeal had erred in dismissing the appeal. While the Court acknowledged the importance of disclosure in sentencing, it did not find that the sentencing judge had erred in relation to this specific issue. Consequently, the High Court allowed the appeal, set aside the orders of the Court of Criminal Appeal, and remitted the matter to that Court for resentencing in accordance with the High Court's reasons.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales dated 2 March 1998 and in place thereof, remit the matter to that Court for sentencing in accordance with the reasons for judgment of this Court.

Background

Background to the litigation

In my view, the learned judge did not err in respect of the disclosure issue but he erred in respect of the character issue because the appellant was relevantly of good character and was entitled to some leniency because of his otherwise good character. It follows that the Court of Criminal Appeal erred in dismissing the appellant's appeal against his sentence. The matter must be remitted to that Court for further consideration. It is therefore strictly unnecessary to deal with the manifestly excessive sentence ground. There is in my opinion, however, no substance in that ground in so far as it is taken to mean that the length of sentence was by itself manifestly excessive. If I had been in favour of otherwise dismissing the appeal, I would have revoked the order of special leave in respect of this ground.The factual background In May 1996, the appellant pleaded guilty in the District Court of New South Wales to, and was sentenced for, certain sexual offences involving under age males. However this sentence, which was imposed by Rummery DCJ, is not the subject of this appeal. As a result of publicity surrounding the sentence, further victims of the appellant came forward and made statements to the authorities. On 27 August 1996, a police officer interviewed the appellant in relation to the new allegations. The appellant admitted that the allegations were true. He also disclosed further offences which had not been known to the police previously. In September 1997, the appellant pleaded guilty in the District Court of New South Wales before Nield DCJ to the offences involved in these new matters. He pleaded guilty to:.nine counts of indecent assault[1],.three counts of sexual intercourse with a person under the age of 16 years knowing that he was not consenting[2],. one count of gross indecency[3],. one count of indecency[4].He asked Nield DCJ to take into account 39 additional offences. [1]s 81 of the Crimes Act 1900 (NSW) (since repealed).[2]s 61D of the Crimes Act 1900 (NSW) (since repealed).[3]s 78Q of the Crimes Act 1900 (NSW). [4]s 61O of the Crimes Act 1900 (NSW). Nield DCJ sentenced the appellant to 16 years' imprisonment, with a minimum term of 11 years. It is this sentence that is the subject of this appeal.The disclosure issue The appellant submitted that Nield DCJ erred in not extending to him a significant added element of leniency for his disclosure of previously unknown offences. He contended that the Court of Criminal Appeal also erred in not recognising the error of Nield DCJ in this regard. In his sentencing remarks, Nield DCJ said:"After being spoken to by police following his having been dealt with for offences of sexual abuse of young boys, he admitted to police his abuse of the further complainants and he told police of the names of all of his victims whose names he could remember, thereby disclosing offences of which police were unaware, and may not have become aware. The Crown’s case against him in relation to many of his victims rests solely on his admissions to police. His admissions show his desire to make a complete disclosure of his conduct. These things go to his credit, show his contrition and entitle him to a discount in punishment." (emphasis added)

Evidence

Evidence Before The Court

Although Gleeson CJ said that he agreed with Nield DCJ that the appellant's good works did not warrant the extension of "significant leniency" to the appellant, Nield DCJ had held that the appellant was not entitled to "any leniency whatsoever" for his good works.The use of character evidence in the sentencing process It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's "previous" or "otherwise" good character. If an offender's character was determined by reference to the offences for which he or she is being sentenced, he or she would seldom be "of good character". I hesitate to say "never" because in Ziems v The Prothonotary of the Supreme Court of NSW[11] Kitto J thought that the circumstances giving rise to the conviction of a barrister for manslaughter did not "warrant any conclusion as to the man's general behaviour or inherent qualities"[12]. His Honour also thought that the conviction was "not inconsistent with the previous possession of a deservedly high reputation"[13]. Indeed, contrary to other members of this Court, Kitto J said that the barrister should not be suspended from practice while he was undergoing his gaol sentence[14]. [11](1957) 97 CLR 279.[12](1957) 97 CLR 279 at 299.[13](1957) 97 CLR 279 at 299.[14](1957) 97 CLR 279 at 300. Second, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances.Did Nield DCJ find the appellant was of good character? When Nield DCJ discussed the appellant's character generally, he said that he could not "see any good in the prisoner". That is, his Honour appears to have held that the appellant was not a person of good character. When he came to deal with the circumstances of the appellant, however, his Honour approached the matter differently. He said that the appellant was "a man of unblemished character and reputation", but he said that this did not entitle him to "any leniency whatsoever". That is, Nield DCJ appears to say that the appellant was otherwise a person of good character, but that in the circumstances his Honour would give no weight whatsoever to that good character. Was the appellant relevantly of good character? As Gleeson CJ observed in R v Levi[15]:"[T]here is a certain ambiguity about the expression 'good character' [in the sentencing context]. Sometimes it refers only to an absence of prior convictions and has a rather negative significance, and sometimes it refers to something more of a positive nature involving or including a history of previous good works and contribution to the community."[15]Unreported, Court of Criminal Appeal of New South Wales, 15 May 1997 at 5.

Decision

Reasons for decision

HUGH J GUMMOW J KIRBY J CALLINAN J (dissent)
Second, the worse the crime, the greater will be the public stigma and opprobrium. The prisoner who rapes a child will undoubtedly be subject to greater public opprobrium and stigma than the prisoner who rapes an adult person. But, without the benefit of a full argument on the issue, I do not see why the objectively appropriate sentence for raping a child should be reduced by reason of any public opprobrium or stigma that the prisoner might suffer. Conclusion Nothing I have said about sentencing paedophiles or the weight to be given to the publicity and opprobrium accompanying conviction is intended to or could be definitive. Nor are my remarks intended to be an exhaustive discussion of these issues. And, since they were not made in deciding a litigated issue, they are not binding on any judge or magistrate. My remarks are simply intended to indicate that other views, beside those propounded by Kirby J and Callinan J, respectively, are open. Moreover, I think that, in any event, it is unlikely that any single case would be sufficient to enable the Court to lay down firm principles of general application. Common law principles are usually the inductive product of the rules and holdings from a number of cases. As Dean Roscoe Pound has said[57]:"You cannot frame a principle with any assurance on the basis of a single case. It takes a long process of what Mr Justice Miller used to call judicial inclusion and exclusion to justify you in being certain that you have hold of something so general, so universal, so capable of dealing with questions of that type that you can say here is an authoritative starting point for legal reasoning in all analogous cases."[57]Pound, "Survey of the Conference Problems", (1940) 14 University of Cincinnati Law Review 324 at 330. Dean Pound went on to contrast the formulation of principles with the formulation of rules[58]:"A single decision as an analogy, as a starting point to develop a principle, is a very different thing from the decision on a particular state of facts which announces a rule. When the court has that same state of facts before it, unless there is some very controlling reason, it is expected to adhere to the former decision. But when it gives [sic] further and endeavors to formulate a principle, stare decisis does not mean that the first tentative gropings for the principle ... are of binding authority."[58]Pound, "Survey of the Conference Problems", (1940) 14 University of Cincinnati Law Review 324 at 330-331. For the present, in my opinion, sentencing judges in paedophilia cases or other cases giving rise to public opprobrium would be well advised to follow the conventional course of imposing such sentence as is appropriate in all the circumstances of the case, bearing in mind the general body of established sentencing principles.Order The appeal should be allowed. The judgment of the Court of Criminal Appeal of New South Wales should be set aside. The matter should be remitted to the Court of Criminal Appeal for the appellant to be sentenced in accordance with these reasons.

Ratio Decidendi

Legal Principle Established

Established by: HUGH J, GUMMOW J, KIRBY J,

Given the issues litigated by the parties, any attempt to lay down principles for the guidance of judges sentencing paedophiles is premature and may lead to confusion and doubts on the part of sentencing judges as to how they should approach the sentencing process in a case such as the present. I see no inconvenience in refusing to determine, at this stage, what principles should be applied or considerations taken into account in sentencing paedophiles. On the other hand, I see great advantages in doing so only when the Court has a case before it where the relevant sentencing issues are raised and explored by the parties in argument after calling expert evidence throwing light on all aspects of this complex social problem. But, given the general remarks of Kirby J and Callinan J concerning sentencing, it is proper that I should mention that in my opinion views different from those suggested by each of their Honours are open.Sentencing considerations in paedophile cases Whether or not paedophilia is an "underlying condition" – and it appears not to be a psychiatric illness – it is by no means clear that a paedophile should be punished "less severely than would be appropriate for a series of wilful and completely unconnected offences"[29]. If two men commit similar offences against children – one because he was a paedophile and the other for sexual gratification – I doubt that the general public would see any difference in the two cases. Indeed, the public view – which cannot be disregarded if courts are to maintain the confidence of the community – may be that the paedophile should get the heavier sentence of the two because he is more likely to re-offend. There is certainly judicial authority for that view. In Channon v The Queen[30], Brennan J, then a member of the Federal Court, said:"An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period."[29]Reasons of Kirby J at [128].[30](1978) 20 ALR 1 at 4. In Veen v The Queen [No 2][31], a majority of this Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to re-offend. But the majority noted that, although the condition may be said to diminish his or her "moral culpability for a particular crime", it is a double-edged sword. The protection of society is a material factor in fixing an appropriate sentence[32]. As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case. As Mason CJ, Brennan, Dawson and Toohey JJ said in Veen [No 2][33]:"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence." (emphasis added)For that reason, in Veen [No 2], this Court saw no error in principle when the prisoner was given a life sentence substantially because of the need to protect society from his homicidal impulses.[31](1988) 164 CLR 465 at 476-477.[32]Veen v The Queen [No 2] (1988) 164 CLR 465 at 473.[33](1988) 164 CLR 465 at 473.