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Court of Criminal Appeal 23 June 2009

Ryan v R

[2009] NSWCCA 183

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE POSSESS UNREGISTERED FIREARM 40 OFFENCES ON FORM 1 NO ERROR ESTABLISHED

Citation: Ryan v R [2009] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 23 June 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; Johnson J

Background

The applicant pleaded guilty in the District Court to supplying not less than the commercial quantity of amphetamines (300 grams) and to possessing an unregistered firearm. She also asked the sentencing judge to take into account 40 further offences on a Form 1 (a procedural document that allows additional charges to be considered when passing sentence without separate convictions being recorded). Those offences included dealing with property suspected of being proceeds of crime, possessing prohibited drugs, weapons and ammunition, possessing detonators, and affray.

At sentencing, Judge Coolahan imposed a total effective non-parole period of six years with a balance of term of three and a half years. The applicant was 35 at sentencing, had a significant prior criminal history including an earlier drug supply conviction, and the investigation had intercepted over 15,000 telephone calls establishing her as a medium-scale drug supplier. A loaded pistol, a Taser, a mace, detonators and other weapons were found in her bedroom.

The applicant sought leave to appeal against the sentences, arguing the sentencing judge had fallen into error in three respects relating to rehabilitation, remorse and contrition.

  • Whether the sentencing judge erred by failing to apply the "crossroads principle" (sometimes called the principle of mercy), which recognises that a first-time or reformed offender stands at a crossroads and deserves particular leniency
  • Whether the sentencing judge erred by relying on matters not in evidence when assessing the applicant's prospects of rehabilitation
  • Whether the sentencing judge failed to give proper weight to the applicant's remorse and contrition

Decision

The Court of Criminal Appeal found no error on any of the three grounds and dismissed the appeal, though leave to appeal was formally granted.

On the first ground, the Court held that the crossroads principle had no clear application on the facts. The applicant had a lengthy criminal history and had previously been sentenced to imprisonment for drug supply. The principle is directed at offenders who genuinely stand at a turning point in their lives, not those with established patterns of serious offending.

On the second ground, the sentencing judge had remarked that it would be "fanciful" to think the applicant had not made similar promises of reform when dealt with previously. Johnson J found this observation was open to the judge on the evidence. Spigelman CJ added that the applicant's own cross-examination supported the inference: she had acknowledged that after her 2002 conviction she had told the Probation and Parole Service she would maintain a drug-free lifestyle, which amounted to an implicit acceptance that such a promise had been made previously.

On the third ground, the Court noted that the sentencing judge had in fact found special circumstances and adjusted the ratio between non-parole period and balance of term in the applicant's favour, reflecting acceptance of some resolve to address her drug problem. The Court also applied the principle from R v Baker that questions of weight in the exercise of a sentencing discretion are matters for the first-instance judge, and that appellate intervention on weight is only warranted in narrowly confined circumstances. No such circumstances existed here.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's treatment of rehabilitation, remorse or contrition, and the sentences were described as both open and appropriate given the serious level of criminality involved.
  • The "crossroads principle" (which favours leniency for offenders at a genuine turning point) was found to have no clear application where an applicant has a substantial prior criminal history including earlier convictions for the same type of offending.
  • A sentencing judge's inference about prior promises of reform can be supported by a defendant's own evidence under cross-examination, even where the judge's remark was not explicitly grounded in the transcript.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that questions of weight in sentencing discretion are primarily for the first-instance judge, and appellate intervention on that basis is available only in narrowly confined circumstances, as stated in R v Baker.
  • A finding of special circumstances, leading to an extended parole period relative to the non-parole period, can itself reflect a sentencing judge's acceptance of an offender's prospects of rehabilitation without requiring further explicit reduction in the head sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912
- Drug Misuse and Trafficking Act 1985, s 25(2)
- Firearms Act 1996, s 36(1)

Cases:
- R v Baker [2000] NSWCCA 85
- R v Osenkowski (1982) 5 A Crim R 594
- R v Micallef (1990) 50 A Crim R 465
- R v Lenthall [2004] NSWCCA 248
- House v The King (1936) 55 CLR 499
- R v Merritt (2004) 59 NSWLR 557
- R v Hunt [2002] NSWCCA 482
- R v Govinden (1999) 106 A Crim R 314
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146