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94
Court of Criminal Appeal 10 February 2016

R v Van Ryn

[2016] NSWCCA 1

Sexual offences
CRIMINAL LAW SENTENCE CROWN APPEAL SENTENCE CROWN APPEAL RESPONDENT A PAEDOPHILE

Citation: R v Van Ryn [2016] NSWCCA 1
Court: Court of Criminal Appeal, New South Wales
Date: 10 February 2016
Judge(s): Leeming JA; Johnson J; R A Hulme J (judgment by R A Hulme J, with whom the others agreed)

Background

The respondent, a prominent regional business figure, pleaded guilty to 17 child sexual assault offences committed against nine victims over an 11-year period between 2003 and 2014. The offences ranged from indecent assault to persistent sexual abuse of children, and involved a pattern of grooming and offending against children connected to his social circle. He was described as a paedophile.

On 9 September 2015, a District Court judge imposed an aggregate sentence of 13 years' imprisonment with a non-parole period of 7 years. The sentence was backdated to 10 December 2014, making the respondent eligible for parole in December 2021.

The Director of Public Prosecutions appealed under section 5D(1) of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate and the result of multiple errors in the sentencing judge's reasoning.

  • Whether the sentencing judge made specific errors in assessing and imposing the aggregate sentence, including failure to assess the objective seriousness of the offences
  • Whether the sentencing judge failed to address general and specific deterrence and community protection when setting the sentence
  • Whether errors were made in treating the Form 1 offences (additional offences taken into account) and in considering the possibility that some offences could have been dealt with in the Local Court
  • Whether the resulting aggregate sentence was manifestly inadequate
  • Whether, even if errors were found, the Court should exercise its discretion to intervene and resentence

Decision

R A Hulme J (with Leeming JA and Johnson J agreeing) held that the sentencing judge's reasons, while citing numerous principles and authorities, contained little exposure of actual reasoning. The judgment failed to assess the objective seriousness of the offences, and gave no indication that general deterrence, personal deterrence, or community protection had been factored into the sentence. There were also specific errors in the treatment of the Form 1 offences and in considering the possibility that some offences could have been dealt with summarily in the Local Court.

The Court found the aggregate sentence of 13 years was manifestly inadequate in all the circumstances. The Court acknowledged significant mitigating factors, including early pleas of guilty, early engagement with treatment, prior good character, and the respondent's prospects for rehabilitation. However, it held that even weighty mitigating factors cannot override the requirement that a sentence be proportionate to the gravity of the offending.

The Court was satisfied that the sentence constituted an affront to the administration of criminal justice and exercised its discretion to intervene. It proceeded to resentence the respondent, applying a 25 per cent reduction across indicative sentences to reflect the utilitarian value of the early guilty pleas.

The Court imposed an aggregate sentence of 18 years' imprisonment with a non-parole period of 13 years and 6 months, dated from 10 December 2014. The respondent will become eligible for parole on 9 June 2028, with the total term expiring on 9 December 2032.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court on 9 September 2015 quashed
  • Respondent resentenced to an aggregate term of 18 years' imprisonment with a non-parole period of 13 years and 6 months, dating from 10 December 2014; eligible for parole from 9 June 2028; total term expires 9 December 2032

Key Takeaways

  • A sentencing judgment that cites principles and authorities without transparently applying them to the facts, and that omits any assessment of objective seriousness or of deterrence and community protection, discloses error capable of grounding a Crown appeal.
  • Significant mitigating factors, including early guilty pleas, early engagement with treatment, and prior good character, cannot prevail over the requirement that a sentence be proportionate to the gravity of the offence.
  • The Court of Criminal Appeal confirmed that a sentence may be manifestly inadequate even where the sentencing judge invoked a wide range of principles, if the reasoning process underlying the sentence is not adequately exposed.
  • Where a Crown appeal reveals both specific errors in the sentencing process and a sentence so unreasonable as to constitute an affront to the administration of justice, the Court will exercise its discretion to intervene and resentence.
  • Under the aggregate sentencing regime in section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must indicate the individual sentences it would otherwise have imposed; failure to comply with related requirements (such as indicating non-parole periods for standard non-parole period offences) may constitute error, although not every such failure affects the validity of the aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 53A, 54B(7)
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Criminal Procedure Act 1986 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Badans v R [2012] NSWCCA 97
- Belghar v R [2013] NSWCCA 245
- Benitez v R [2006] NSWCCA 21
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Carroll v The Queen [2009] HCA 13; 254 ALR 379
- CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
- Collier v R [2012] NSWCCA 213
- Delaney v R; R v Delaney [2013] NSWCCA 150
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- EG v R [2015] NSWCCA 21
- Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- GSH v R; R v GSH [2009] NSWCCA 214
- Hinchcliffe v R [2013] NSWCCA 327