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District Court 3 June 2020

R v Ryan

[2020] NSWDC 406

Public order & justice offences
CRIME: HINDER APPREHENSION OFFENCE OF SHORT DURATION. SENTENCE RELEVANT FACTORS ON SENTENCE LOYALTY TO A MATE ON PAROLE EARLY GUILTY PLEA

Citation: R v Ryan [2020] NSWDC 406
Court: District Court of New South Wales
Date: 3 June 2020
Judge: Haesler SC DCJ

Background

The offender, a man with an extensive criminal history and known mental health issues, was sentenced for hindering the apprehension of a person suspected of committing a serious indictable offence, contrary to s 315(1)(c) of the Crimes Act 1900. The maximum penalty for that offence is seven years imprisonment.

In May 2019, a person named Butler was suspected of involvement in a fatal motor vehicle collision in which a passenger died. Butler fled the scene and was wanted by police on manslaughter allegations. The offender, who had been released on parole only days earlier, picked Butler up, allowed him to drive his vehicle, and permitted him to use his phone to make arrangements to meet another person. A police pursuit followed, reaching speeds of 50 to 100 kilometres per hour in a 50 kilometre per hour zone, before Butler and the offender were apprehended.

The offender had committed this offence in breach of his parole conditions, having been released just six days before the events in question. He entered a guilty plea in the Local Court. The central dispute at sentencing was the objective seriousness of the offence.

  • Where on the range of objective seriousness did this particular offending fall, given the brief duration of the hindrance and the absence of active participation in the pursuit?
  • What weight should be given to the offender's guilty plea, drug-affected state, mental illness, personal circumstances, and history of institutionalisation?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio, given the risk of further institutionalisation.

Decision

The court rejected the submission that the offending fell at the very bottom of the objective seriousness range. Providing transport and a telephone to a person suspected of involvement in a fatal collision created a real possibility of exactly what occurred: the vehicle being used to avoid apprehension, with the associated risks a police pursuit posed to the community. That consideration lifted the matter above the lowest end of the range, although the court was careful to note the offender was not being punished for the pursuit itself.

Several features moderated the sentence. The police investigation was not hindered; only Butler's physical apprehension was impeded, and only briefly. There was no suggestion the vehicle was being used to help Butler leave the jurisdiction. The court also accepted, given the offender's history, that he was likely drug-affected at the time, though that did not excuse the conduct.

The offender's guilty plea attracted a 25 percent reduction for its utilitarian value. His significant mental health issues, cognitive disabilities, and the serious risk of further institutionalisation were treated as factors warranting a finding of special circumstances, justifying a longer parole period than the standard ratio would produce. The court's purpose in extending supervision was to maximise community support on release, not from any confidence the offender would not reoffend.

General deterrence was identified as an important sentencing consideration for this type of offence. The court emphasised that knowingly assisting a person wanted for a serious crime, including simply allowing them use of a vehicle, will attract punishment regardless of the motivation of loyalty.

Orders Made

  • Total sentence of one year and six months imprisonment.
  • Non-parole period commencing 30 September 2019, expiring 29 June 2020 (meaning release to parole on 29 June 2020).
  • Parole period of nine months.
  • Direction for supervised parole with the offender required to obey all reasonable directions.
  • Special circumstances found, resulting in the extended parole period.

Key Takeaways

  • Under s 315(1)(c) of the Crimes Act 1900, providing a vehicle and telephone to a person suspected of a serious indictable offence constitutes hindering apprehension, even where the offender's direct involvement is limited and the duration of the hindrance is brief.
  • The connection between an offence of hindering apprehension and an investigation into an alleged homicide is a marker of significant seriousness, consistent with the Court of Criminal Appeal's approach in Sampson v R [2014] NSWCCA 19.
  • A drug-affected state and a motivation of personal loyalty do not excuse an offence of this kind, though they may be relevant to the overall sentencing assessment.
  • Special circumstances justifying a non-standard non-parole ratio can rest on the risk of institutionalisation, even where a court holds limited confidence that an offender will not reoffend.
  • General deterrence carries particular weight in sentencing for offences that assist persons suspected of serious crimes to evade police, given the risks that ensuing pursuits can create for the broader community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 315(1)(c)
- Crimes (Sentence Administration) Act 1999 (NSW)

Cases
- Callaghan v R [2006] NSWCA 58
- Sampson v R [2014] NSWCCA 19