Citation: REGINA v RYAN (No 2) [2003] NSWCCA 35
Court: Court of Criminal Appeal, New South Wales
Date: 27 February 2003
Judge(s): Mason P; Hulme J; Smart AJ
Background
The appellant was a Catholic priest ordained in 1966 who committed numerous sexual offences against young boys in the Newcastle area over approximately 20 years, between 1972 and 1991. The victims were aged between six and 14, and were members of his congregation. Many were altar boys or servers who trusted him, as did their families.
Following initial sentencing proceedings in 1996, the associated publicity prompted additional victims to come forward. The appellant subsequently participated in a police interview in which he admitted three further offences and voluntarily disclosed a substantial number of previously unknown victims and incidents. That disclosure ultimately led to a second indictment, on which he pleaded guilty to 14 additional charges and asked the court to take a further 39 offences into account, involving 28 victims in total across both sets of proceedings.
Judge Nield in the District Court imposed sentences totalling an effective 16-year term on the second indictment, cumulative on the earlier sentences, producing a combined effective period of 20 years imprisonment with a minimum term of 15 years. The appellant appealed to the Court of Criminal Appeal, which dismissed the appeal. He then appealed to the High Court, which remitted the matter for resentencing on the question of how good character had been treated by the sentencing judge.
Legal Issues
- Whether the sentencing judge had erred in failing to give any weight to the appellant's prior good character when imposing sentence
- The extent to which prior good character can mitigate sentence where the offending itself represents a gross betrayal of the trust that underpinned that character
- Whether the totality principle required any adjustment to the overall sentence
Decision
The High Court had already resolved, on the earlier appeal, that the sentencing judge made no discernible error in his approach to the appellant's voluntary disclosure of previously unknown offences. That aspect of the sentence was therefore not reconsidered on remitter. However, the High Court had found, by majority, that the sentencing judge erred by giving no weight at all to the appellant's otherwise good character.
On remitter, the Court of Criminal Appeal accepted that the nature and extent of the offending substantially diminished the mitigating force of the appellant's good character. The offences themselves constituted a gross abuse of the very position and reputation that made up his character. Accordingly, while the court acknowledged that some leniency was warranted, it found that only modest leniency was appropriate. The court drew on the High Court's observation that the appellant had for a long time done good works, but that much of the value of those works was reduced by his serious misconduct in abusing his office.
The adjustment made was relatively small. The three most serious counts (sexual intercourse without consent under the former s 61D of the Crimes Act 1900) were resentenced, reducing the sentence on those counts from a minimum term of two years and additional term of five years, to a six-year term with a two-year non-parole period, the three sentences to run concurrently. The sentences on all other counts were left undisturbed. The overall effect was to reduce the total non-parole period from 15 years to 14 years, and the total head sentence from 20 years to 20 years (with the parole eligibility date brought forward slightly).
Orders Made
- Leave to appeal granted
- Appeals allowed in part
- Appeals dismissed on counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, and 14 (fixed terms of one year on each count)
- Appeals allowed on counts 10, 11, and 12; sentences on those counts quashed and replaced with concurrent sentences of six years imprisonment each, commencing 23 May 2008, with a non-parole period of two years on each, ending 22 May 2010
- The appellant to be eligible for release on supervised parole on 22 May 2010
Key Takeaways
- Prior good character retains some mitigating weight in sentencing even where the offending is serious, but the weight afforded to it may be substantially reduced where the offences themselves represent a direct abuse of the position, trust, and reputation that constituted that character.
- A sentencing court errs in law if it gives no weight whatsoever to an offender's good character; the High Court confirmed this principle in the earlier appeal, and the Court of Criminal Appeal applied it on remitter.
- Where good character is raised in the context of large-scale, long-running sexual abuse of children by a person in a position of trust, the mitigating effect is present but slight, and the resulting sentencing adjustment may be modest.
- The totality principle requires a court to consider whether cumulative sentences, when viewed as a whole, are proportionate to the overall criminality involved; here the Court of Criminal Appeal made only a small adjustment, finding that the condign stringency of the original sentence remained broadly appropriate.
- Voluntary disclosure of previously unknown offences and victims is a distinct consideration from good character and, as the High Court found, the sentencing judge made no error in the weight given to that disclosure.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): s 61D (sexual intercourse without consent, victim under 16), s 61O (aggravated act of indecency), s 78Q (gross indecency upon a male under 18), s 81 (indecent assault upon a male person), s 81A (act of indecency) (all since repealed)
- Sentencing Act (NSW) (as in force at relevant time)
Cases:
- Ryan v The Queen (2001) 206 CLR 267 (High Court decision remitting the matter)