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Court of Criminal Appeal 8 May 2002

Regina v Ryan

[2002] NSWCCA 171

Theft & property
SENTENCING SEVERITY APPEAL

Citation: Regina v Ryan [2002] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 8 May 2002
Judges: Greg James J; Carruthers AJ

Background

The applicant, a woman of Australian Aboriginal descent, pleaded guilty in the District Court at Bathurst to one count of armed robbery under s 97(1) of the Crimes Act 1900. The offence involved entering a shop with her de facto husband, who produced a knife and threatened the shopkeeper while they took approximately $100 from the till. The applicant was found to have played a lesser role than her co-offender.

The District Court sentenced the applicant to five years imprisonment, with a non-parole period of three years and nine months, running from the date she was taken into custody. His Honour declined to find special circumstances and expressed doubt that the applicant would pursue rehabilitation.

The applicant sought leave to appeal on the basis that the sentence was excessive, arguing in particular that the sentencing judge had given insufficient allowance for her subjective circumstances as an Aboriginal woman, including her background of dysfunction, substance abuse, and the principles applicable to the sentencing of Aboriginal offenders.

  • Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, particularly those connected with her Aboriginal background, including poly-substance abuse, a dysfunctional upbringing, and the effects of domestic violence
  • Whether special circumstances existed warranting a departure from the standard ratio between the non-parole period and head sentence
  • Whether the appeal court's intervention was warranted having regard to the seriousness of the offence, the applicant's prior record, and the fact she was on conditional liberty at the time

Decision

The Court of Criminal Appeal found that the sentencing judge had not made sufficient allowance for the subjective circumstances associated with the applicant's Aboriginality. Carruthers AJ reviewed the relevant principles for sentencing Aboriginal offenders, including those affirmed in Regina v Fernando and the earlier cases that had developed that line of authority. Those principles recognise that factors such as alcohol and substance abuse, dysfunctional family backgrounds, and social disadvantage, when connected to Aboriginality, must be given proper weight in sentencing.

The Court acknowledged the seriousness of the offence, the applicant's lengthy prior record of 80 offences, and the fact she was on conditional liberty when the offence was committed. Despite these factors, the Court was persuaded that the cumulative weight of the applicant's subjective circumstances, including her history of head injuries from domestic violence, her poly-substance abuse, and her difficult personal background, had not been adequately reflected in the sentence below.

An affidavit filed by the applicant on the day of the appeal also provided material suggesting some positive steps toward rehabilitation since being in custody, including engagement with counselling, employment in the facility, and attendance at education classes. The Court regarded the combination of the applicant's subjective circumstances and this affidavit material as constituting special circumstances.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Original sentence set aside
  • Head sentence of four years imprisonment imposed, commencing 14 November 2000 and expiring 13 November 2004
  • Non-parole period of two years and six months, commencing 14 November 2000 and expiring 13 May 2003, providing an eighteen-month parole period

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principles governing the sentencing of Aboriginal offenders, as articulated in Regina v Fernando, require sentencing courts to give proper and adequate weight to subjective circumstances connected with an offender's Aboriginality, including substance abuse, family dysfunction, and the effects of social disadvantage.
  • Insufficient allowance for those subjective circumstances can constitute an error warranting appellate intervention, even where the offence is serious and the offender has a lengthy prior record.
  • A finding of special circumstances can be supported by the combined weight of an offender's background and evidence of rehabilitative steps taken after sentencing, where that material was before the appellate court by way of fresh affidavit.
  • The Court reduced both the head sentence and the non-parole period, producing a longer parole period to allow for adequate supervision and rehabilitation following release.
  • Conditional liberty at the time of the offence and a substantial criminal history do not preclude a finding of special circumstances or a reduction in sentence where other subjective factors have not been adequately weighed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery with an offensive weapon)

Cases:
- Neal v The Queen (1982) 149 CLR 305
- R v Fernando (1992) 72 A Crim R 58
- Regina v Fernando [2002] NSWCCA 28
- Regina v Henry (1999) 46 NSWLR 346
- R v Ceissman [2001] NSWCCA 73
- R v Daniel [1998] 1 QD 499
- R v Hickey (NSWCCA, 27 September 1994, unreported)
- R v Pitt [2001] NSWCCA 156
- R v Stone (1995) 84 A Crim R 218