Citation: R v Christopher Ryan [2007] NSWDC 50
Court: District Court of New South Wales
Date: 7 February 2007
Judge(s): Nicholson SC DCJ
Background
The offender, an 18-year-old Aboriginal man, was one of two people who broke into a residential property in Doonside on 28 February 2006. The two knocked on the front door to confirm the occupants had left for work, then moved to the rear of the house, smashed a bedroom window, and entered the premises. They stole two mountain bikes valued at over $4,000, twenty PlayStation games, a Discman, and other property, leaving the house in significant disarray.
An alert neighbour photographed the offenders as they left and contacted police. Officers located both youths riding the stolen bikes nearby approximately 20 minutes later and arrested them. Most of the stolen property was recovered.
The offender was committed to the District Court for sentencing on 28 October 2006. He had been in custody since the date of the offence, and had also served a separate fixed-term imprisonment of six months for three other break, enter and steal offences committed in 2005. His co-offender, dealt with in the Children's Court, received 30 hours of community service.
Legal Issues
- Where on the range of objective seriousness did this particular break, enter and steal offence fall?
- Which aggravating and mitigating factors were relevant to sentence?
- Whether the fact of being in company (an aggravating circumstance that would increase the maximum penalty) could be taken into account, given the offender had not been charged with that feature
- What sentencing disposition appropriately balanced the objective criminality with the offender's youth, Indigenous background, difficult upbringing, and prospects for rehabilitation
- How parity with the co-offender's sentence should factor into the outcome
Decision
The court assessed the offence as falling between the lower end and the mid-range of objective seriousness. The commission of the offence while the offender was already subject to a Children's Court probation order for similar offending, the pre-planned nature of the entry, the disarray left in the home, and the value of property taken all elevated it above the lower end. However, those factors did not bring it to the mid-range.
On the question of the "in company" aggravating feature, the court applied the principle from De Simoni v The Queen (1981) 147 CLR 383, which prohibits a sentencing court from punishing an offender for a circumstance of aggravation that was not included in the charge. Because the offender had not been charged with committing the offence in company, that feature was expressly excluded from the sentencing calculus, even though the prosecution would have been entitled to include it.
The court gave significant weight to the offender's subjective circumstances. His upbringing involved physical and emotional abuse from a stepfather, homelessness from approximately age 11, no relationship with his biological father, and an entrenched pattern of drug use. However, the court found genuine cause for optimism in the structured environment offered by the offender's godparents, the Downings, with whom he had been living before his incarceration.
Taking into account the offender's youth, Indigeneity, background disadvantage, and the principle that rehabilitation is the primary sentencing aim for offenders on the cusp of adulthood, the court determined that a deferred sentencing approach under section 11 of the Crimes (Sentencing Procedure) Act 1999 was appropriate. Rather than imposing a final sentence immediately, the court granted bail for three months on strict conditions, with the intention of reviewing compliance before finalising the sentence.
Orders Made
- Bail granted for three months from 7 February 2007 pursuant to section 11 of the Crimes (Sentencing Procedure) Act 1999, on the following conditions:
- Report to Mount Druitt Probation and Parole office by 5pm on 9 February 2007
- Accept supervision and comply with all reasonable directions of Probation and Parole, including participation in required programs
- Reside with Mr and Mrs Downing at the specified Bidwill address
- Make all reasonable efforts to obtain and maintain employment
- Submit to random drug testing three times monthly (nine results required over the three-month period); any positive, missed, or non-compliant test to be treated as a breach, with notification to the court within 24 hours
- The court commended programs related to drug and alcohol management, vocational assistance, and living skills to Probation and Parole
Key Takeaways
- The District Court confirmed that, following De Simoni v The Queen, a sentencing court cannot treat an uncharged circumstance of aggravation (here, committing the offence in company) as a factor increasing the sentence, even where the prosecution could have charged it.
- Objective seriousness for break, enter and steal is elevated by pre-planning, commission while on conditional liberty, and the disarray left in the home, even where the value of stolen property is not extreme and most items are recovered.
- Under section 11 of the Crimes (Sentencing Procedure) Act 1999, a court may defer the imposition of a final sentence to allow an offender an opportunity to demonstrate rehabilitation, with bail conditions structured to support that process.
- Rehabilitation was identified as the primary sentencing objective for an offender at the cusp of adulthood, particularly where a stable and structured living arrangement offers a meaningful prospect of change.
- Some downward adjustment to the overall sentence was warranted by parity with the co-offender's outcome, even where strict parity was not appropriate given the differences in forum and the offender's more extensive criminal history.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
Cases
- De Simoni v The Queen (1981) 147 CLR 383