Ryan v R

1. [1]

   SIMPSON AJA: I have had the advantage of reading in draft the judgment of Lonergan J. I agree that leave to appeal against sentence ought to be granted and the appeal allowed, for the reasons identified by her Honour. The result is that this Court must proceed to exercise an independent sentencing discretion.

2. [2]

   I have reflected at some length on the sentences proposed by Lonergan J. I appreciate that each proposed individual sentence is lengthy and severe, as is the proposed effective total sentence, notwithstanding the limited accumulation of one year. That is the inevitable consequence of faithful application of the two statutory guideposts prescribed by Parliament, the maximum penalty and the standard non-parole period. While the standard non-parole period is not to be treated as determinative, it is also not to be ignored.

3. [3]

   Also not to be ignored are the progressive increases in the prescribed maximum penalties for offences of this nature, the most recent to imprisonment for life. There can be no doubt that sentencing judges are enjoined to treat sexual offences against children as among the most serious known to the criminal law.

4. [4]

   Each of these offences was, objectively assessed, serious. That may be measured by the conduct itself, digital penetration, and the ages – 5 years – of each of the victims. In the case of GF, the offence was accompanied by a degree of force.

5. [5]

   When that assessment is put together with the maximum prescribed penalties and the standard non-parole periods sentences in the order of those proposed by Lonergan J are inevitable.

6. [6]

   I agree with the orders proposed by Lonergan J.

7. [7]

   BUTTON J: I agree with Lonergan J.

8. [8]

   LONERGAN J: The applicant seeks leave to appeal against the sentence imposed by her Honour Judge English in the Campbelltown District Court on 23 March 2017.

9. [9]

   The applicant stood trial in October and November 2017, on three counts of sexual intercourse with two children under the age of 10 years.

10. [10]

    Counts 1 and 2 were charges pursuant to s 66A of the Crimes Act 1900 (NSW) and concerned offending upon KM in 2007 when she was 5 years old and the applicant was 28.

11. [11]

    Count 3 was a charge pursuant to s 66A(2) of the Crimes Act. The victim, GF, was under the applicant’s authority at the time. The offending took place in 2012 or 2013 when the applicant was 33 to 34 years old and GF was 4 to 5 years old.

12. [12]

    The jury acquitted the applicant of count 2 and found him guilty of counts 1 and 3.

13. [13]

    The maximum penalty prescribed for offending of the type involved in count 1 was at that time, 25 years with a standard non-parole period of 15 years.

14. [14]

    The maximum penalty for offending of the type involved in count 3 was life imprisonment with a standard non-parole period of 15 years.

15. [15]

    The sentence imposed by her Honour for count 1 was 17 years with a non-parole period of 12 years. For count 3, the sentence imposed was 21 years with a non-parole period of 15 years.

16. [16]

    The effective term of imprisonment imposed was 22 years with a non-parole component of 16 years. The term included a 12 month accumulation in recognition of the separate offending against the two victims.

17. [17]

    Leave to appeal against the sentence was sought. The Notice of Appeal was filed out of time, however the Crown took no objection to an extension of time and an extension has been granted.

Facts of the offences

1. [18]

   The following facts are extracted from the remarks on sentence (“ROS”). Between November 2006 and March 2007, KM lived with her mother and siblings, next door to the applicant and his partner. [1]

2. [19]

   In December 2015, KM was interviewed by officers from Liverpool Joint Investigation Response Team (JIRT). In that interview she disclosed two incidents involving the applicant.

3. [20]

   The incident that comprised count 1 was that one day in 2007, when KM was five years old, she had changed out of dirty clothes into other clothes but had put them on back to front. The applicant assisted her to rearrange her clothing and in doing so he touched her on the inside of her vagina. She said that it made her “feel scared” and “she did not know what was happening”. The applicant only ceased what he was doing as she was moving and pushed him away. That incident occurred at his house. [2]

4. [21]

   Count 2 on the indictment was described by KM as involving the applicant luring her to an attic and that he “pulled his dick out”, told her to touch it, pushed her to the floor, pulled down her underwear and “tried to stick it in”. The applicant was found not guilty of that offence, however her Honour observed that had an alternative verdict to a charge of attempt been available, it would have been open to the jury to find the applicant guilty of that offence. [3]

5. [22]

   The victim involved in count 3, GF, was the daughter of a friend of the applicant. The applicant and GF’s mother had previously been in a relationship which had finished, but the families remained in contact. Sometimes GF stayed overnight at the applicant’s house in a kind of extended family arrangement. [4]

6. [23]

   On an occasion when GF was at the applicant’s home alone with him between January 2012 and December 2012, GF described that the applicant:

7. [24]

   Other conduct of the applicant referred to by her Honour was led as relationship evidence at the trial which described GF’s evidence that the applicant would insert his fingers into her vagina, and that this had occurred on a number of occasions and it “didn’t feel well.” [6] Her Honour noted that GF had given evidence that this would occur in her grandparents’ home while others were present. It occurred inside and outside the house, in the lounge room and in the back living room. She was unable to be specific as to when these incidents occurred, but recalled it had happened the last time the applicant visited the family home. [7] This evidence led her Honour to conclude that count 3 was not an isolated offence.

8. [25]

   Her Honour observed that the applicant had ingratiated himself with GF’s and KM’s families, and then in the context of providing childcare “of sorts”, took advantage of both young girls, to sexually assault them. [8]

Proceedings on sentence

1. [26]

   The Crown tendered the applicant’s criminal and custodial history, various Facebook messages between himself and KM, the victim impact statement of GF (which GF also read to the court) and a presentence report dated 22 February 2017 attaching a psychologist’s report of the same date.

2. [27]

   The Crown relied upon the Facebook messages as admissions of guilt in the trial as to his conduct with KM. The Facebook messages included the following:

3. [28]

   The applicant gave evidence in the trial. Her Honour observed that he was not a particularly impressive witness and that he tried to distance himself from the Facebook messages, saying that he could not explain how those messages were sent from his phone. Her Honour also observed that he admitted to lying to police during his record of interview. She concluded that his evidence was “contradictory and at times fanciful” and that in denying posting the Facebook messages to KM, he tried to distance himself from them, “giving highly implausible explanations”. [10]

This appeal

1. [29]

   The applicant has raised three grounds of appeal:

   1. (1)

      the sentencing judge erred by treating the standard non-parole period as having determinative significance in the sentencing exercise;

   2. (2)

      the sentencing judge erred in giving effect to the finding of special circumstances in relation to count 3 by extending the additional term, rather than reducing the non-parole period; and

   3. (3)

      the sentence is manifestly excessive.

Ground 1: the sentencing judge erred by treating the standard non-parole period as having determinative significance in the sentencing exercise

1. [30]

   At ROS page 14, her Honour stated:

2. [31]

   The sentencing judge then went on to impose a non-parole period of 12 years in respect of count 1, and 15 years in respect of count 3. The non-parole period imposed for count 3 equals the standard non-parole period of 15 years.

3. [32]

   Section 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW) as amended after Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 provides:

4. [33]

   As stated in Muldrock at [28]:

5. [34]

   As conceded by the Crown in its written submissions, even on a fair reading of the complete remarks on sentence, her Honour appears to have given determinative significance to the standard non-parole period in respect of count 3, rather than treating it as a yard stick in the manner required by Muldrock.

6. [35]

   Error has been demonstrated, and ground 1 must be upheld.

Ground 2 – The sentencing Judge erred in giving effect to the finding of special circumstances in relation to count 3 by extending the additional term, rather than reducing the non-parole period.

1. [36]

   Ground 2 was also conceded by the Crown. The sentencing judge by her remarks on sentence clearly intended the non-parole period for the sentence for count 3 to be 15 years but erroneously calculated the date when that non-parole period ended as 4 August 2030, a period of only 13 years.

2. [37]

   The sentencing judge initially sentenced as follows:

3. [38]

   The overall non-parole period was also incorrect as the non-parole period in fact set by her Honour is 17 years; 2015 to 2032.

4. [39]

   This non-parole period is in effect 81% of the total sentence which does not reflect the finding of special circumstances made [12] although a non-parole period that expired in 2030 would, because that would reflect 71% of the total sentence.

5. [40]

   The sentencing judge then returned after a short adjournment and compounded the error by varying the sentence this way:

6. [41]

   Although this adjustment led to a 72.7% ratio between the non-parole period and sentence, this was achieved by increasing the head sentence for count 3 from 19 years to 21 years, adjusting the commencement date of count 3 to 2016 (rather than 2017) and as a result, increased the total sentence from 21 to 22 years.

7. [42]

   The applicant submitted that:

8. [43]

   As submitted by the Crown in conceding error:

9. [44]

   It is clear her Honour has engaged in the erroneous approach identified and so ground 2 has also been made out.

10. [45]

    Given grounds 1 and 2 are established there is no need to deal with the manifest excess ground and this Court will proceed to re-sentence, taking into account all the submissions made on that ground by both parties.

Re-sentence

1. [46]

   The offender is now 41 years old. He has been in custody since 5 August 2015.

2. [47]

   The sentencing judge made a finding that the applicant has a sexual interest in young girls of the age of five and that the offending for which she sentenced him indicated that he acted upon that sexual interest when the opportunity arose or he felt so inclined. [14]

3. [48]

   In respect of count 1 involving KM, the sentencing judge determined that offending fell just below the mid-range of objective seriousness and count 3 involving GF fell within the mid-range of objective seriousness. [15] There is no challenge to these findings.

4. [49]

   The sentencing judge concluded that she could make no finding of remorse or contrition given that the applicant maintained his innocence, and that his prospects for rehabilitation based upon the pre-sentence and psychologist’s reports were, at best, mediocre. [16]

5. [50]

   Reference was made to a long-standing problem with drugs and alcohol abuse and some mental health issues which needed addressing. [17] There was reference to a history of drug use by age 13 and regular use by age 15.

6. [51]

   There was reference to past employment and a back injury that was said to have resulted in the need for the applicant to have ibuprofen, [18] which was said by his counsel to be the drug found in his cell that led to one of the misconduct charges in custody.

7. [52]

   The applicant’s record as an adult involving larceny, assault, shoplifting and driving with an illicit drug present in his blood was noted, [19] together with an observation that the latter offence was committed at a time when the applicant would have the court believe that he no longer took illicit substances.

8. [53]

   The sentencing judge concluded the applicant’s record was not such as to disentitle him to leniency and that the offending for which she was sentencing him were the most serious matters. [20]

9. [54]

   The sentencing judge noted that general and specific deterrence loomed large given he had sexually assaulted two little girls where he violated them by becoming a trusted family “friend”, and in respect of count 3, the child was under his authority at the time. [21]

10. [55]

    Additional evidence offered before this Court comprised an affidavit of the applicant sworn in January 2019 stating that he had been a trusted sweeper whilst in custody and that he had completed a training course as a barista, a course in creative arts and an EQUIPS course which included a course relating to drug addiction.

11. [56]

    An affidavit tendered by the Crown referred to additional drug related offences in May, August and December 2018 comprising refusing/fail drug sample, possess drug and possess drug implement. Submissions were made by the applicant explaining that these offences related to tobacco and ibuprofen use.

12. [57]

    Little is added to or taken away from the applicant’s subjective case by any of this additional material. It is equivocal.

13. [58]

    As submitted by the Crown before this Court, the offending involved two five year old girls who were well below the upper age limit of 10 years for offences of this type. The offender ingratiated himself with the families, using that friendship and closeness to access and assault these little girls.

14. [59]

    The Facebook messages to KM who was 13 years old at the time the applicant sent them, evidence a continued manipulative sexual focus on KM, and shows a disturbing lack of insight into the inappropriateness of his attitude to this child.

15. [60]

    The conduct involved in count 3 was forced fellatio using physical force on a 5 year old child, pulling her hair and pushing her head onto his penis, hurting her head and ejaculating into her mouth.

16. [61]

    The offences were five years apart and the victims entirely unrelated. There is distinct and separate criminality involved in each of the offences.

17. [62]

    The submissions offered on behalf of the applicant on sentence were directed to the manifest excess ground and comprised largely a comparison examination of other cases dealing with s 66A offences where the sentences imposed for those offences were less than those imposed upon the applicant. [22] Reference was made in that context to a number of decisions that dealt with penalties for what were submitted to be instances of offending relevantly comparable to the applicant’s offending.

18. [63]

    The remarks by Bellew J (Macfarlan JA and Adamson J agreeing) in MLP v R [2014] NSWCCA 183 are apposite to the problems created by such an approach:

19. [64]

    The cases referred to by both the Crown and counsel for the applicant serve to illustrate these well-identified concerns. I am not persuaded that the cases cited provide any useful guide for what is an appropriate sentence for this offender.

20. [65]

    The recent legislative history of s 66A of the Crimes Act is important to bear in mind. The legislative intent is clear from the upwards trend in setting the maximum potential penalties for this type of offending. As outlined in TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12 at [249] to [253] per Fagan J:

21. [66]

    Whilst error has been found in her Honour’s approach to the non-parole period in her sentencing here, it is clear that even post Muldrock, standard non-parole periods do have a potentially significant role particularly where there are, as here, limited positive mitigating factors. In RJA v R [2014] NSWCCA 89 at [23], R A Hulme J stated:

22. [67]

    Her Honour’s conclusion regarding concurrence and accumulation reflected a significant degree of concurrence, despite the offending taking place some years apart and involving different victims. I accept the submission made by the Crown in this appeal that this was an approach generous to the offender. I have allowed for an accumulation of 1 year in the proposed sentence.

23. [68]

    The sentencing judge’s finding about special circumstances appears on page 15 of the ROS:

24. [69]

    I accept the argument made by counsel for the applicant that there were some complexities with how the finding of special circumstances translated into the sentence her Honour gave. Her Honour observed that she had not in fact afforded the offender special circumstances in the way she had partially accumulated the sentence, because a non-parole period expiring in 2032 amounted to 81% of the total sentence, although a total non-parole period expiring in 2030 reflected 71% of the total sentence and could be said to reflect a finding of special circumstances.

25. [70]

    The finding her Honour made about special circumstances [23] quoted in paragraph [68] above appears to be a reflection of the mathematical complications associated with an accumulated sentence, rather than an acceptance of the submission made on behalf of the offender that there would be a need for the offender to adjust back into the community after sentence and that after a lengthy sentence he would need a “longer period of adjustment under supervision”. [24]

26. [71]

    Either way, I adopt her Honour’s conclusion that there are special circumstances and I have adjusted the non-parole period for count 3 to reflect that matter. The length of the total non-parole period that I propose reflects 73.6% of the total head sentence.

27. [72]

    For count 1, I propose a non-parole period of 9 years commencing 5 August 2015 and expiring 4 August 2024, with a balance term of 3 years commencing 5 August 2024 and expiring 4 August 2027.

28. [73]

    For count 3, I propose a non-parole period of 13 years, commencing 5 August 2016 and expiring 4 August 2029, with a balance term of 5 years commencing 5 August 2029 and expiring 4 August 2034.

29. [74]

    I have allowed for an accumulation of 1 year.

30. [75]

    The sentence I propose is therefore a total non-parole period of 14 years commencing 5 August 2015 and expiring 4 August 2029 with a balance term of 5 years expiring on 4 August 2034.

31. [76]

    The applicant is eligible for release on parole on 4 August 2029.

Orders

1. [77]

   I propose the following orders:

   1. (1)

      The applicant’s appeal against sentence is allowed.

   2. (2)

      The sentence imposed by Judge English in the District Court on 23 March 2017 is set aside.

   3. (3)

      That the applicant be re-sentenced as followed:

   4. (4)

      The total effective sentence under the orders proposed will be a non-parole period of 14 years commencing 5 August 2015 and expiring 4 August 2029 with a balance term of 5 years expiring on 4 August 2034.

   5. (5)

      The earliest date upon which the applicant will be eligible for release on parole will be 4 August 2029.