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District Court 10 May 2019

R v Van Ryn

[2019] NSWDC 164

Sexual offences

Citation: R v Van Ryn [2019] NSWDC 164
Court: District Court of New South Wales
Date: 10 May 2019
Judge(s): Grant DCJ

Background

The offender pleaded guilty to four charges of aggravated sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(4) of the Crimes Act 1900 (NSW). The offences occurred between December 2010 and May 2012 and involved a single victim, referred to as AZ, who was 14 or 15 years old at the time. The circumstances of aggravation were that the victim was under the authority of the offender, who was an adult known to the victim through a neighbourhood friendship.

The offender was already serving a substantial custodial sentence imposed in connection with separate but related child sexual offending. That sentence, following Court of Criminal Appeal resentencing and High Court remittal proceedings, stood at an aggregate of 17 years and 9 months with a non-parole period of 13 years and 4 months, commencing 10 December 2014. The charges in the present matter came to light after the victim, having moved interstate, made a complaint to police in March 2018.

The central sentencing task for Grant DCJ was to impose a just and appropriate sentence that, when added to the existing sentence, did not produce a crushing or disproportionate total custodial term.

  • What was the appropriate sentence for four counts of aggravated sexual intercourse with a child, given the offender was already serving a lengthy sentence for similar offending?
  • How should the totality principle be applied when imposing a sentence consecutive to an existing term?
  • What weight should be given to the guilty plea, its timing, and the consequent sparing of the victim from giving evidence?
  • What relevance, if any, does extra-curial punishment (punishment experienced outside the formal court process, such as the consequences of being a sex offender in prison) have to the sentence?
  • Was a non-parole period required or appropriate for the new sentence?

Decision

Grant DCJ sentenced the offender on an aggregate basis under s 53A of the Crimes (Sentencing Procedure) Act 1999. The indicative sentences for each individual count, before the guilty plea discount, ranged from 5 years and 8 months (for fellatio offences) to 6 years and 8 months (for the anal intercourse offence). After applying a 25% discount for the early guilty plea, the indicative sentences fell to 4 years and 3 months and 5 years respectively. His Honour accepted that the plea was entered at the earliest reasonable opportunity and also acknowledged the practical benefit to the victim of being spared the trauma of giving evidence.

On totality, his Honour applied the principle that consecutive sentences must not result in a total term that is crushing or destroys any reasonable expectation of life after release. The offender was born in 1955 and would be in his 70s when eligible for parole under the existing sentence. The court was satisfied that extending the non-parole period by 12 months, making the offender eligible for parole at around age 74, was just and not crushing in the circumstances.

His Honour considered the offender's age and the fact that he was a known sex offender serving his sentence in the general prison population, which the court accepted constituted a form of extra-curial punishment warranting some moderation of the sentence. The court also had regard to the victim impact statement, which described severe and ongoing psychological harm including flashbacks, self-harm, anxiety, and suicidal ideation. His Honour quoted Justice McClellan's opening address to the Royal Commission into Institutional Responses to Child Sexual Abuse, affirming that the devastating and long-lasting effects of child sexual abuse are often underappreciated.

Grant DCJ determined that no separate non-parole period would be set for the new aggregate sentence. Under the applicable provisions of the Crimes (Sentencing Procedure) Act 1999, a non-parole period direction cannot be made where the offender is still serving another sentence whose non-parole period has not yet expired. The new sentence was structured to commence on 10 April 2020, one day after the existing non-parole period concludes.

Orders Made

  • The offender is convicted and sentenced to 9 years' imprisonment.
  • The sentence commences on 10 April 2020.
  • The offender is eligible for parole on 9 April 2029.
  • No separate non-parole period was imposed for this sentence.

Key Takeaways

  • The totality principle requires that consecutive sentences, taken together, must not be so severe as to be crushing or to extinguish any reasonable prospect of life after release; the District Court applied this principle by extending the existing non-parole period by only 12 months.
  • A 25% guilty plea discount applied where the plea was entered at the earliest reasonable opportunity in the Local Court, consistent with s 22 of the Crimes (Sentencing Procedure) Act 1999.
  • Extra-curial punishment, including the particular hardships faced by a sex offender serving time in the general prison population, is a recognised sentencing consideration that may moderate the sentence imposed.
  • Under s 116 of the Crimes (Sentencing Procedure) Act 1999, a non-parole period direction cannot be made in relation to a new sentence where the offender remains in custody under another sentence whose non-parole period has not yet expired.
  • Victim impact evidence, including the long-term psychological consequences of child sexual abuse described in the Royal Commission's findings, was treated as a significant factor in understanding the gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 25AA, 53A, 116

Cases:
- Blanco v R [1999] NSWCCA 121
- EG v R [2015] NSWCCA 21
- Mill v R [1988] HCA 70
- R v Holder; R v Johnson [1983] 3 NSWLR 245
- R v Schwabegger [1998] 4 VR 649
- R v Van Ryn [2016] NSWCCA 1
- R v Van Ryn (No 3) [2016] NSWCCA 307
- R v Wilhelm [2010] NSWSC 378
- R v Wran [2016] NSWSC 1015
- RWB v R [2010] NSWCCA 147
- Sabra v R [2015] NSWCCA 38