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Court of Criminal Appeal 26 August 2019

Ryan v R

[2019] NSWCCA 200

Sexual offences
CRIMINAL LAW APPEAL SENTENCE ERROR CONCEDED PAROLE PERIOD RESENTENCE

Citation: Ryan v R [2019] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 26 August 2019
Judges: Simpson AJA, Button J, Lonergan J

Background

The appellant was convicted by a jury of two counts of sexual intercourse with children under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). The offences were committed against two separate victims, each aged approximately five years at the time, and occurred in 2007 and 2012-2013 respectively. The appellant was acquitted of a third count.

In the Campbelltown District Court in March 2017, Judge English sentenced the appellant to 17 years imprisonment for the first count and 21 years for the third count, with an effective total sentence of 22 years and a non-parole period of 16 years. The one-year accumulation reflected the separate offending against two victims.

The appellant sought leave to appeal against sentence. The notice of appeal was filed out of time, but the Crown did not oppose an extension, which was granted.

  • Whether the sentencing judge erred by treating the standard non-parole period as having determinative significance in the sentencing exercise, contrary to the principles established in Muldrock v The Queen (2011) 244 CLR 120.
  • Whether the sentencing judge erred in giving effect to a finding of special circumstances by extending the additional (balance) term rather than reducing the non-parole period.
  • What sentences ought to be imposed on resentencing.

Decision

The Court granted leave to appeal and allowed the appeal, with both errors conceded by the Crown. The first error concerned the sentencing judge's treatment of the standard non-parole period. Following Muldrock, a standard non-parole period serves as a legislative guidepost alongside the maximum penalty. It must be taken into account but must not be treated as a starting point or as having determinative significance in the sentencing exercise.

The second error arose from how the sentencing judge gave effect to the finding of special circumstances. Under s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the default ratio between the non-parole period and the balance of the sentence is fixed. Where special circumstances are found, the mechanism for adjusting that ratio is to reduce the non-parole period, not to extend the additional term beyond the default. The sentencing judge had taken the wrong approach by extending the balance term instead.

On resentencing, the Court exercised its independent sentencing discretion. Lonergan J, with whom Simpson AJA and Button J agreed, assessed both offences as objectively serious, noting the young ages of the victims, the use of force in one instance, and the fact that the third count was not an isolated offence. Simpson AJA emphasised that the progressive increases in maximum penalties for offences of this kind, including the most recent increase to life imprisonment, reflect a clear legislative intention that sexual offences against children are among the most serious known to the criminal law.

The Court imposed reduced sentences that corrected both errors, including adjustment of the non-parole period for the third count to reflect the finding of special circumstances.

Orders Made

  • The appeal against sentence was allowed.
  • The sentence imposed by Judge English on 23 March 2017 was set aside.
  • The appellant was resentenced as follows:
  • Count 1: Non-parole period of 9 years (5 August 2015 to 4 August 2024); balance term of 3 years (to 4 August 2027).
  • Count 3: Non-parole period of 13 years (5 August 2016 to 4 August 2029); balance term of 5 years (to 4 August 2034).
  • The total effective sentence is a non-parole period of 14 years commencing 5 August 2015 and expiring 4 August 2029, with a balance term of 5 years expiring 4 August 2034.
  • The earliest date of eligibility for release on parole is 4 August 2029.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a standard non-parole period must inform the sentencing exercise as a legislative guidepost but cannot be treated as a starting point or given determinative weight, consistent with Muldrock v The Queen.
  • Where special circumstances are found under the Crimes (Sentencing Procedure) Act 1999 (NSW), the correct mechanism for adjusting the statutory ratio is to reduce the non-parole period, not to extend the balance term beyond the default.
  • In resentencing for serious child sexual offences, the Court treated both the maximum penalty and the standard non-parole period as relevant reference points, neither determinative nor ignorable.
  • Progressive legislative increases to maximum penalties for child sexual offences, culminating in life imprisonment, signal that courts must treat this category of offending as among the most grave in the criminal law.
  • Sufficient objective seriousness was established by the nature of the conduct, the ages of the victims, the use of force in one instance, and the pattern of repeated offending disclosed by the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 54B(2)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- MLP v R [2014] NSWCCA 183
- RJA v R [2014] NSWCCA 89
- TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12