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Court of Criminal Appeal 16 December 2016

R v Van Ryn (No 3)

[2016] NSWCCA 307

Sexual offences
CRIMINAL LAW SENTENCE CHILD SEXUAL ASSAULT PAROLE PERIOD APPLIED

Citation: R v Van Ryn (No 3) [2016] NSWCCA 307
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2016
Judges: Leeming JA; Johnson J; R A Hulme J

Background

The offender had been convicted of multiple child sexual assault offences and sentenced in the District Court in September 2015 to an aggregate term of 13 years with a non-parole period of 7 years. The Court of Criminal Appeal (CCA) allowed a Crown appeal against the inadequacy of that sentence in February 2016, substituting an aggregate term of 18 years with a non-parole period of 13 years and 6 months.

Shortly after that principal judgment, the Crown drew the Court's attention to an error: one count in the first indictment had been treated as an offence under s 61M(2) of the Crimes Act 1900 (NSW), when it was in fact an offence under s 61M(1). The distinction mattered because s 61M(1) carries a lower maximum penalty of 7 years and a standard non-parole period of 5 years, compared with 10 years and 8 years respectively under s 61M(2).

The CCA refused an application to correct the error under s 43 of the Crimes (Sentencing Procedure) Act 1999, finding it lacked power to do so. The offender sought special leave to appeal to the High Court of Australia. The High Court granted special leave confined to this issue, with the Crown's concession, and made consent orders remitting the matter to the CCA for redetermination.

  • Whether the indicative sentence for the count affected by the wrong offence provision should be reduced, given the lower maximum penalty and standard non-parole period under s 61M(1).
  • Whether the error in the indicative sentence for that one count warranted any reduction to the aggregate sentence previously imposed.

Decision

The Court accepted the offender's submission that the relevant count was less serious than the only other s 61M(1) count on the indictments. The conduct involved fondling a 13-year-old victim's genitals over clothing for approximately one minute. Having regard to the age of the victim and the nature of the contact, the Court reduced the indicative sentence for that count from 2 years 2 months to 1 year 8 months, with a non-parole period of 1 year 3 months.

The Court then considered whether the corrected indicative sentence required any adjustment to the aggregate term. It acknowledged that, ordinarily, a minor correction of this kind would not disturb an aggregate sentence, because aggregate sentences are shaped by totality principles rather than precise arithmetic addition of individual terms.

Three factors, taken together, made this an exceptional case warranting a reduced aggregate sentence. First, the High Court had granted special leave confined to this specific error, suggesting a real possibility it could affect the aggregate. Second, the Crown, which had originally raised the error, did not oppose a lower aggregate sentence. Third, even a very small percentage reduction of the overall term translated to a meaningful period of more than two months given the length of the sentence.

The Court re-exercised its sentencing discretion and imposed a modestly reduced aggregate sentence of 17 years and 9 months with a non-parole period of 13 years and 4 months.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed in the District Court on 9 September 2015 quashed.
  • Offender sentenced to an aggregate term of imprisonment of 17 years and 9 months with a non-parole period of 13 years and 4 months, commencing 10 December 2014, with eligibility for parole from 9 April 2028 and total term expiring 9 September 2032.

Key Takeaways

  • An aggregate sentence is not determined by precise arithmetic addition of indicative sentences; totality principles govern the exercise, and a minor correction to one indicative sentence will not ordinarily disturb the aggregate.
  • Where the High Court grants special leave confined to a sentencing error, the Crown does not oppose a lower sentence, and the sentence length is such that even a small percentage reduction is material, those factors together can constitute exceptional circumstances justifying a reduced aggregate.
  • Under s 61M of the Crimes Act 1900 (NSW), the distinction between subsections (1) and (2) carries real sentencing consequences: the maximum penalty and standard non-parole period differ significantly, and applying the wrong provision will affect both the indicative and aggregate sentencing exercise.
  • The Court of Criminal Appeal confirmed it lacked power under s 43 of the Crimes (Sentencing Procedure) Act 1999 to correct the error (as decided in the No 2 decision), leaving the High Court remittal as the appropriate pathway for redetermination.
  • In assessing the relative seriousness of offences under the same provision, the age of the victim and the nature of the physical contact remained relevant factors distinguishing one count from another.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43

Cases
- R v Van Ryn [2016] NSWCCA 1 (the principal judgment)
- R v Van Ryn (No 2) [2016] NSWCCA 160
- Van Ryn v The Queen [2016] HCATrans 246
- Van Ryn v The Queen [2016] HCATrans 268