Ryan v The Queen - [2011] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RYAN v R [2011] NSWCCA 69
Hearing dates: 8 March 2011
Decision date: 05 April 2011
Before: McCOLL JA [1]
RS HULME J [2]
HISLOP J [60]
Decision:
(i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Quash the sentences imposed by Sweeney DCJ on 12 March 2010;
(iv) Remit the matter to the District Court in order that the Applicant may be re-sentenced.
(v) Direct that, subject to any order made on an application for bail, or of the District Court, the Applicant be remanded in custody meanwhile.

Catchwords: Criminal law - sentencing - relevance of mental condition - appeal fresh evidence
Solicitor's incompetence
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: Many (1990) 51 A Crim 54
Araya & Joannes (1992) 63 A Crim R 123
Iglesias v R [2006] NSWCCA 261
Springer v R [2007] NSWCCA 289
Category: Principal judgment
Parties: Aaron Terrence Ryan
Regina
Representation: Counsel:
Mr Provera (Applicant)
Mr PG Ingram SC (Crown)
Solicitors:
Greenfield Lawyers (Applicant)
S Kavanagh Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/126576 2009/74494
Decision under appeal

Date of Decision:

2010-03-12 00:00:00

Before:

Sweeney DCJ

File Number(s):

2009/126576

Judgment

McCOLL JA: I agree with the orders proposed by RS Hulme J and his Honour's Reasons.

RS HULME J: On 12 March 2010 this Applicant for leave to appeal was sentenced by Sweeney DCJ in respect of two offences of recklessly causing grievous bodily harm. Each of those offences carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years imprisonment.

For the first offence the Applicant was sentenced to imprisonment for a period of 3 years including a non-parole period of 2 years both such periods to date from 5 August 2009. For the second offence, the Applicant was sentenced to imprisonment for 3 years and 9 months including a non-parole period of 2 years both such periods to date from 5 August 2010.

The total effective sentence was thus one of 4 years and 9 months including an effective non-parole period of 3 years. The commencing date of the sentence reflected pre-sentence custody.

The circumstances of the first offence were that during the night of Friday 19 June 2009 the Applicant and his girlfriend went to the home of a Mr Robert Jones. With Mr Jones' permission the Applicant invited friends to join them and there was listening to music and alcohol consumption. The Applicant challenged Mr Jones to a fight in the lounge room. Both were intoxicated. They sparred and wrestled and the Applicant became more aggressive and put Mr Jones in a headlock choking him so he could not breath. Eventually the Applicant released Mr Jones who told the Applicant to go outside. Both did so. The Applicant challenged Mr Jones to another fight. They fought for a short time then stopped and shook hands. The Applicant returned inside the house where he was heard to be arguing with his…

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 The Queen

Details

AGLC: Ryan v The Queen [2011] NSWCCA 69
Case: [2011] NSWCCA 69
Decision Date: 05 April 2011

CaseChat Overview and Summary

The matter of Ryan v The Queen was heard by the High Court of Australia, where the defendant, Ryan, was appealing a sentencing decision following a criminal conviction. Ryan's appeal hinged on the argument that his solicitor's incompetence during the sentencing phase had resulted in a failure to present mitigating evidence of his mental condition, which could have led to a more lenient sentence. The court was tasked with determining whether the incompetence of the solicitor constituted a miscarriage of justice and warranted a new sentencing hearing.

The primary legal issues the court needed to address were whether the solicitor's failure to present evidence of Ryan's mental condition constituted a significant error that undermined the fairness of the sentencing process, and if such an error could be grounds for a new sentencing hearing under the law. The court also had to consider the extent to which the new evidence, if presented, would have influenced the outcome of the sentencing.

The court found that the solicitor's failure to present evidence of Ryan's mental condition was indeed a significant error that had the potential to affect the outcome of the sentencing. The court held that such an error could constitute a miscarriage of justice, warranting a new sentencing hearing. The court also emphasised that the new evidence, if credible and material, would need to have a substantial impact on the sentence to justify a new hearing. Ultimately, the court determined that the incompetence of the solicitor did warrant a new sentencing hearing, as the new evidence of Ryan's mental condition was significant enough to potentially alter the outcome. The appeal was allowed, and the matter was remitted to a lower court for a new sentencing hearing.

Orders