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Court of Criminal Appeal 22 March 2000

R v Ryan

[2000] NSWCCA 98

Theft & propertyFirearms & weapons

Citation: R v Ryan [2000] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 22 March 2000
Judge(s): Abadee J; James J

Background

The applicant, a 41-year-old Aboriginal man with an extensive criminal history, pleaded guilty in the District Court to two charges of armed robbery under s 97(1) of the Crimes Act. The robberies involved the use of a syringe and, on two subsequent occasions, a handgun, targeting a post office and a TAB branch. All offences were committed while the applicant was on parole, and the later robberies were also committed while he was on bail for an earlier offence.

Judge Williams of the District Court imposed concurrent sentences of ten years' penal servitude on each of the two indictment charges, comprising a minimum term of six years and an additional term of four years. The sentencing judge also took into account, on a form pursuant to s 21 of the Criminal Procedure Act, four further charges including two additional armed robberies, two goods-in-custody offences, and a drug possession charge.

The applicant sought leave to appeal, arguing the sentences were manifestly excessive in light of his subjective circumstances, including his Aboriginal background, a motor vehicle accident shortly before the offences, and various cognitive and psychological impairments.

  • Whether the sentencing judge was entitled to proceed on the basis that the objects used in the robberies were actual handguns, given the plea of guilty and the admitted facts sheet.
  • Whether sufficient weight was given to the applicant's subjective circumstances, including his Aboriginal background, cognitive deficits, and the principles from R v Fernando regarding sentencing Aboriginal offenders.
  • Whether the concurrent ten-year sentences were manifestly excessive having regard to the objective seriousness of the offences, the sentencing statistics, and the applicable sentencing principles.
  • Whether it was appropriate for the most serious of the taken-into-account offences to have been placed on a s 21 form rather than included in the indictment.

Decision

James J (with Abadee J agreeing) held that the sentencing judge was entitled to proceed on the basis that the objects used were real handguns. The applicant had pleaded guilty to a count in the indictment that described the weapon as a handgun, and a facts sheet admitted without objection also described it as such. The court rejected the submission to the contrary.

The court found that Judge Williams had given detailed and thorough consideration to the applicant's subjective circumstances, occupying approximately ten pages of his sentencing remarks. The judge explicitly applied the Fernando principles, acknowledged the applicant's tragic personal background, his institutionalisation, and his cognitive deficits, and had regard to the guilty pleas and evidence of contrition.

On the question of the form charges, James J acknowledged it would have been preferable for the two most serious taken-into-account offences to have been included in the indictment. However, the sentencing judge was entitled to give those offences substantial weight, provided the sentences imposed did not exceed the maximum permissible for the indictment charges. No error in that regard was identified.

Taking into account the Court of Criminal Appeal's decision in R v Henry and the objective seriousness of the offences, the court concluded that the sentences were not manifestly excessive and were in fact fairly lenient. The court noted that, even if it were to re-sentence the applicant, no lesser sentences would be warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may proceed on the basis of facts admitted through a guilty plea and an unopposed facts sheet, even where counsel later contests those facts on appeal.
  • The Fernando principles, which address how courts should approach the sentencing of Aboriginal offenders whose background includes deprivation, violence, and disadvantage, were confirmed as relevant considerations that a sentencing judge must expressly address.
  • Where a serious offence is placed on a s 21 form rather than charged in the indictment, it would ordinarily be preferable to include it in the indictment; however, a sentencing judge may still give that offence substantial weight, provided sentences remain within the maximum for the charged offences.
  • Concurrent ten-year sentences (minimum six years) for two charges of armed robbery under s 97(1), committed by an offender on parole and bail with a lengthy prior history of violence, were held not to be manifestly excessive and were described as fairly lenient.
  • Sentencing statistics relating to single armed robbery offences were found to be of limited assistance where an offender faced multiple serious charges arising from a pattern of offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 97(1) (robbery whilst armed with an offensive weapon)
- Criminal Procedure Act (NSW), s 21 (taking further offences into account on sentencing)

Cases:
- R v Fernando (principles on sentencing Aboriginal offenders, per Wood J)
- R v Henry (Court of Criminal Appeal, sentencing for armed robbery)
- R v Morgan (1993) 70 A Crim R 368 (Hunt CJ at CL, on weight to be given to s 21 form offences)