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Court of Criminal Appeal 10 August 2016

R v Van Ryn (No 2)

[2016] NSWCCA 160

Sexual offences
CRIMINAL LAW PROCEDURE PAROLE PERIOD WHEN RESENTENCING APPLICATION REFUSED

Citation: R v Van Ryn (No 2) [2016] NSWCCA 160
Court: Court of Criminal Appeal
Date: 10 August 2016
Judge(s): Leeming JA; Johnson J; R A Hulme J

Background

This decision arose from an earlier Crown appeal in which the Court of Criminal Appeal resentenced the respondent by imposing an aggregate sentence of 18 years imprisonment with a non-parole period of 13 years 6 months. The original proceedings involved multiple counts of sexual offending against children. In its earlier judgment, the Court had identified one count (Count 9 of the first indictment) as an offence under s 61M(2) of the Crimes Act 1900 (NSW), and referred to the maximum penalty and standard non-parole period applicable to that subsection.

The error came to light when the Crown drew the Court's attention to the fact that Count 9 was actually an offence under s 61M(1), not s 61M(1). Section 61M(2) applies where the victim is under 10 years of age (maximum: 10 years imprisonment; standard non-parole period: 8 years). Section 61M(1) applies where an indecent assault occurs in circumstances of aggravation, including where the victim is under 16 (maximum: 7 years imprisonment; standard non-parole period: 5 years). The victim in Count 9 was 13 years old, plainly placing the offence within s 61M(1).

The error appears to have originated in an unamended version of the indictment that was used as the source for Crown submissions, even though the Court had been provided with the correctly amended indictment. The respondent did not oppose the Crown's application to reopen proceedings.

  • Whether the Court had power under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to reopen the sentencing proceedings to correct the error in the reference to the wrong offence provision, maximum penalty, and standard non-parole period for Count 9.
  • Whether the aggregate sentence imposed was a "penalty contrary to law" within the meaning of s 43, such that the reopening power was enlivened.
  • Whether the respondent's plea of guilty to Count 9 could be characterised as a plea to an offence under s 61M(2) rather than s 61M(1).

Decision

The Court refused the application, concluding that s 43 was not available to correct the error. Following the High Court's authoritative construction of s 43 in Achurch v R [2014] HCA 10, the Court confirmed that the reopening power is conditioned on the penalty itself being "contrary to law." It is not enough that the court erred in its reasoning or in the facts it took into account when arriving at the sentence.

The aggregate sentence of 18 years was well within the statutory and discretionary range available to the Court. Although the error in describing Count 9 as a s 61M(2) offence may have influenced the reasoning leading to the indicative sentence for that count, it did not produce a penalty that exceeded any statutory limit or fell outside lawful parameters. Reconsidering the indicative sentence, and any consequential adjustment to the aggregate, would require an evaluative exercise that must be pursued through an appeal rather than a reopening under s 43.

The Court also rejected the Crown's argument that the respondent had not, in effect, pleaded guilty to or been convicted of an offence that would attract a sentence of the kind imposed. The respondent had pleaded guilty to Count 9 as correctly described in the amended indictment, which charged a s 61M(1) offence. The fact that the Court subsequently misdescribed that offence did not alter what the respondent had actually admitted to.

Orders Made

  • The application by the Crown to reopen the sentencing of the respondent pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 is refused.

Key Takeaways

  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 confers a narrowly defined power: it applies only where the penalty itself is contrary to law, not where the court has made an error of law or fact in the reasoning that led to an otherwise lawful penalty.
  • Under the Achurch principle, confirmed here, a penalty is not rendered "contrary to law" simply because it was reached through erroneous reasoning or reliance on incorrect information about an offence provision.
  • Where correcting a sentencing error would require reconsidering indicative sentences and the resulting aggregate, that exercise is evaluative in nature and must be pursued by way of appeal, not reopening under s 43.
  • A defendant's plea of guilty is characterised by reference to the offence as actually charged. Subsequent misdescription of the offence by a court does not transform the nature of the plea or the conviction.
  • An aggregate sentence that falls within the statutory and discretionary range remains lawful for the purposes of s 43, even if individual indicative components were informed by incorrect assumptions about maximum penalties or standard non-parole periods.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 53A

Cases:
- Achurch v R [2014] HCA 10; 253 CLR 141
- R v Van Ryn [2016] NSWCCA 1