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District Court 22 May 2019

R v Ryan

[2019] NSWDC 195

Sexual offences

Citation: R v Ryan [2019] NSWDC 195
Court: District Court of New South Wales
Date: 22 May 2019
Judge: Yehia SC DCJ

Background

The offender, a former Catholic priest, was convicted following a judge-alone trial of four counts of historical indecent assault against two male child victims, MB and SH. The offences occurred between 1973 and 1990, during which time the offender held a position of significant moral authority and trust over the children he abused. The victims did not come forward to police until 2016, meaning the offences came to light between 26 and over 40 years after they were committed.

The offender had previously, in 1996 and 1997, pleaded guilty to numerous sexual offences against multiple other child victims. For those earlier matters he received a total effective sentence of 18 years imprisonment with a non-parole period of 14 years, which he served in onerous conditions including threats and physical violence before his release in 2010. The present offences arose from the same general period of offending as those earlier convictions.

The central sentencing difficulty was that the offender had already served a lengthy custodial sentence, had not reoffended since his release, was assessed as posing a low risk of reoffending, and had engaged in sustained rehabilitation. The court was required to balance the competing demands of denunciation, punishment, and general deterrence against the principles of totality and proportionality.

  • Whether a further term of imprisonment was warranted where the offender had already served a lengthy sentence for offences committed during the same period of conduct.
  • How the principles of totality and proportionality apply when sentencing for historical offences discovered after the expiration of a prior non-parole period.
  • What weight to give the offender's rehabilitation, age, and the onerous nature of any future custody in light of his psychological vulnerability.
  • Whether special circumstances existed to justify a significant variation from the standard statutory ratio between non-parole period and head sentence.

Decision

Yehia SC DCJ found that all four offences were serious, aggravated by the offender's position as a priest and the profound breach of trust that position involved. The court noted that the offender's authority over the children, and his failure to honour the obligations of his role, were directly relevant to the gravity of each offence. However, the court was careful to limit the sentencing exercise to the four counts before it, expressly declining to punish the offender for offences against other victims or for any broader institutional failings of the Catholic Church.

The court applied the principles of totality and proportionality with particular care given that the current offences fell within the same period of criminality as those for which the offender had already served 14 years. It accepted that further imprisonment was nonetheless warranted, given the discrete criminal conduct involved and the need for denunciation and punishment. The court also accepted as genuine the offender's rehabilitation and his efforts during his earlier police interview to disclose as much of his offending as he could recall.

Turning to the form of sentence, the court found special circumstances warranting a significant departure from the statutory non-parole period ratio. The offender's advanced age, the psychological harm a return to custody would cause given his prior custodial experiences, and the need for extended community supervision to support ongoing rehabilitation all underpinned that finding. An aggregate sentence was imposed with a markedly shorter non-parole period relative to the head sentence.

Orders Made

  • The offender was convicted of all four counts of indecent assault.
  • Indicative sentences were noted: 1 year 8 months (count 1), 2 years (count 2), 1 year 3 months (count 3), and 1 year 8 months (count 4).
  • An aggregate sentence of 3 years 3 months imprisonment was imposed, commencing 22 May 2019 and expiring 21 August 2022.
  • A non-parole period of 14 months was fixed, commencing 22 May 2019 and expiring 21 July 2020.
  • The offender was made eligible for release on parole at the expiration of the non-parole period, subject to supervision by Community Corrections for as long as deemed necessary.
  • Trial exhibits were ordered to be returned to the parties.

Key Takeaways

  • Totality and proportionality remain active constraints even where the offences are serious: the District Court held that an offender who has already served a lengthy sentence for conduct from the same period of offending is entitled to have that prior punishment weighed when a further sentence is imposed.
  • A sentencing court is bound to sentence only for the specific offences before it, and must not treat the proceedings as an occasion to punish an offender for conduct already dealt with, or for the broader failings of an institution with which the offender was associated.
  • Where an offender was a person in authority at the time of the offences, that positional breach of trust is a significant factor in assessing objective seriousness, whether treated as an element of the offence or as a statutory aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Special circumstances justifying a marked departure from the statutory non-parole period ratio can be established by a combination of advanced age, psychological vulnerability arising from prior custodial experiences, and a demonstrated need for extended post-release supervision to consolidate rehabilitation.
  • Rehabilitation, while it does not extinguish the need for punishment, carries genuine weight in sentencing: the court accepted the offender's rehabilitation as cogent and gave it meaningful effect in both the structure and length of the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7, 8, 21A, 24, 25AA, 53A
- Parole of Prisoners Act 1966 (NSW) (repealed)

Cases
- DPP v George Pell [2019] VCC 260
- Mainwaring v The Queen [2009] NSWCCA 207
- Mill v The Queen (1988) 36 A Crim R 468
- R v Todd (1982) 2 NSWLR 517
- Ryan v R (2001) 206 CLR 267
- R v Ryan (No 2) [2003] NSWCCA 35
- R v Vincent Gerard Ryan (26 September 1997, unreported, NSWDC)
- R v Vincent Gerard Ryan (30 May 1996, unreported, NSWDC)