Citation: R v Van Rysewyk [2008] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 16 June 2008
Judge(s): Bell JA, Hulme J, Latham J
Background
The respondent pleaded guilty to break and enter and commit a serious indictable offence (larceny) in circumstances of special aggravation (wounding), under s 112(3) of the Crimes Act 1900. The offence involved entering the home of an elderly couple late at night, armed with hunting-style knives, stabbing the husband in the thigh, threatening both victims, and stealing jewellery, cash and credit cards. Before leaving, one offender severed the telephone cord and threatened to return and kill the couple if they raised the alarm.
At a sentence hearing before Payne DCJ in the District Court, a factual dispute arose about the respondent's role. The respondent claimed he had acted only as a lookout. The sentencing judge rejected that account and found the respondent was one of the two armed men who entered the premises. The respondent was sentenced to a non-parole period of three years and six months, running partially concurrently with a separate sentence for robbery in company.
The Crown appealed on the grounds that the sentencing judge made both a patent error (taking an irrelevant factor into account in assessing objective gravity) and a latent error (imposing a manifestly inadequate sentence).
Legal Issues
- Whether the sentencing judge erred by including the respondent's breach of conditional liberty (being on bail) as a factor when assessing the objective gravity of the offence, rather than treating it separately as an aggravating factor after objective gravity had been assessed.
- Whether the resulting non-parole period and aggregate sentence were manifestly inadequate given the objective gravity of the offence and the standard non-parole period of seven years for s 112(3) offences.
- Whether the sentencing judge's finding of remorse, based solely on the plea of guilty, was warranted in light of the respondent's rejected evidence denying involvement.
- What sentence was appropriate on re-sentencing, accounting for the double jeopardy principle that applies to Crown appeals.
Decision
Latham J, with Bell JA agreeing and Hulme J agreeing subject to one qualification, found that the sentencing judge had made a patent error by factoring the respondent's bail status into the assessment of objective gravity. Breach of conditional liberty is a recognised aggravating feature, but it is distinct from objective gravity. By conflating the two, the judge underestimated objective gravity and then failed to separately apply the aggravating factor at the appropriate stage of the sentencing exercise.
The Court found the offence was substantially above the mid-range of objective gravity. The attack targeted elderly victims in their own home at night, involved actual wounding with large knives, included threats to kill, and the victims were elderly and particularly vulnerable. The aggregate non-parole period of four years and nine months, and aggregate sentence of seven years and nine months, were manifestly inadequate when weighed against those facts and the applicable standard non-parole period of seven years.
Hulme J added that the sentencing judge's inference of remorse from the plea of guilty alone was not supportable. The plea was entered late, and the respondent had maintained a factual account that the judge entirely rejected. In the absence of other evidence of contrition, a finding of remorse required more than the entry of a guilty plea. This did not affect the outcome, given the sentence was quashed in any event.
On re-sentencing, Latham J identified a nominal appropriate starting point of around 13 years, applied a 10% reduction to account for the double jeopardy principle applicable in Crown appeals, and arrived at a sentence of eight years and seven months with a non-parole period of five years. The Court acknowledged the respondent's genuine steps toward rehabilitation and structured the sentence to include a meaningful period of supervised community release.
Orders Made
- Appeal allowed.
- The sentence imposed by Payne DCJ on 14 September 2007 is quashed.
- In lieu, the respondent is sentenced to a non-parole period of five years, commencing 11 October 2007 and expiring 10 October 2012, with a balance of term of three years and seven months, expiring 10 May 2016. The respondent is eligible for release on 11 October 2012.
Key Takeaways
- Breach of conditional liberty (such as being on bail at the time of an offence) is a recognised aggravating factor in sentencing, but it must be applied after an assessment of objective gravity, not folded into that assessment. Conflating the two constitutes a patent sentencing error.
- A guilty plea alone is not a sufficient basis for inferring remorse, particularly where the plea is entered late and the offender has maintained a version of events that the sentencing court has wholly rejected.
- Where a sentencing court underestimates objective gravity through erroneous reasoning, the error can expose the resulting sentence as manifestly inadequate even where the court purported to apply relevant principles.
- The double jeopardy principle in Crown appeals requires the appellate court to impose a sentence meaningfully below what would otherwise have been appropriate at first instance, in recognition of the burden on a respondent of being sentenced twice.
- Under s 112(3) of the Crimes Act 1900, the standard non-parole period of seven years operates as a reference point; an offence involving armed home invasion, wounding, and elderly victims was assessed as substantially above the mid-range of objective gravity.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(3) (break, enter and commit serious indictable offence in circumstances of special aggravation)
- Drug Court Act 1998 (NSW)
Cases
- R v Derbas [2003] NSWCCA 44
- Holloway v McFeeters (1956) 94 CLR 470
- R v Kafovalu [2007] NSWCCA 141
- R v McNaughton (2006) 66 NSWLR 566
- R v Mitchell, R v Gallagher [2007] NSWCCA 296