Solicitors:
Blair Criminal Lawyers (for the offender)
Director of Public Prosecutions
File Number(s): 2019/00170047
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SENTENCE - ex tempore revised
Matthew James Ryan is for sentence today for a serious offence; hinder the apprehension of a person who committed a serious indictable offence. It carries a maximum penalty of seven years imprisonment: s 315(1)(c) Crimes Act 1900.
He committed this offence out of loyalty to a friend. He thought loyalty was more important than obeying the law; the law that binds us together as a community. He committed the offence in breach of promises he made in order to secure his release to parole. Promises to be of good behaviour and not commit further criminal offences. Promises made to; the State Parole Authority, me as a sentencing judge, his family and I suspect himself.
He has been in custody in relation to this offence since 30 May 2019. He served the balance of parole of a sentence I imposed on him until February of this year. He is still in custody.
He entered a plea of guilty in the Local Court. The utilitarian value of that plea requires the otherwise appropriate sentence I fix be reduced by 25%. The plea of guilty is also a practical expression of remorse, contrition and/or acceptance of responsibility. It is hard in all the circumstances to determine into exactly what category it falls.
Any sentencing exercise must start with the facts of what occurred. There are agreed facts before the Court. The agreed facts in relation to the element of the offence "person who committed a serious indictable offence" relate to allegations against a man, Butler, who is still before the courts and as I understand will be pleading not guilty to the charge, as presently preferred.
In the early hours of Saturday 18 May 2019 Daniel Merrett died in a serious and significant motor vehicle accident when the car in which he was a passenger collided with a petrol tanker. The circumstances leading up to the collision involve allegations that the car was being chased by a vehicle driven by Butler. Butler did not stop following the collision that resulted in Mr Merrett's tragic death. Rather, it is alleged he fled the scene.
At the time of the collision Ryan was in custody serving part of the balance of parole of the sentence I imposed upon him.
On 22 May 2019 he spoke with his mother on the telephone. She told him that Butler and two co-offenders were wanted by police for manslaughter and were on the run.
Ryan was released on 24 May 2019. At about 6.30am on 30 May 2019 Ryan driving a white Nissan utility picked up Butler from Warilla. He then allowed Butler to drive that vehicle. He allowed Butler to drive that vehicle knowing that Butler was wanted by police and knowing that Butler was avoiding arrest. At the time he allowed Butler to drive his vehicle there were no obvious signs that Butler was being pursued by police.
Ryan also allowed Butler to use his telephone to make arrangements for Butler to meet another person. Those arrangements were made. As police had access to the calls they assisted in the police apprehending Butler.
At 10.15am police saw Butler driving the offender's vehicle onto the Princes Highway heading south. PolAir were alerted. Police coming northbound tried to intercept him but Butler made a sudden right turn accelerating heavily. a police pursuit took place. That police pursuit involved Butler driving the offender's vehicle between 50 to 100 kilometres per hour in a 50 kilometre signposted area.
Butler was able to avoid police cars for a short time before mounting a kerb. Butler, the offender and another person in the car were apprehended and placed under arrest.
The offender told police on his arrest; that he had known Butler since they were about 12, that he knew Butler was in trouble and he knew how "big" the charges were. He said that he had fallen asleep in the vehicle and says that he slept through the pursuit. That story on its face would be hard to accept. but Ryan also told his psychiatrist, and given his history I am prepared to accept, that he was affected by a number of illicit or prescription drugs at the time, and that history supports that explanation.
Ryan said he let Butler drive his vehicle because they were friends and he would "let him drive his vehicle any time of the week, even if he was not on the run." He accepted that it was not the best thing to do, to associate with someone on the run. But he told police loyalties are about more than that.
I am assisted in this matter by both written and oral submissions from Mr Anderson, who appears for the offender and Mr Scully, Deputy Senior Crown Prosecutor. I will take into account what each of them have said. Their primary issue of dispute is about the objective seriousness of the particular offence. Mr Anderson submits that it falls at the very bottom of the range. Mr Scully, while accepting that it is not in the middle of the range, says there are a number of features relating to the offence which mark it out as one of some seriousness.
The offence for sentence involves the need to punish someone who does anything, intending in any way to hinder the apprehension of another person who has committed a serious indictable offence. (My emphasis.) Butler was suspected, on reasonable grounds, to have committed the serious indictable offence involving the death of one person and serious injury to another. Ryan knew this. By providing Butler with his car and letting him drive it he did hinder police. The period was only relatively brief and it is accepted that when the car was initially given to Butler to drive he was not then being actively pursued.
As the Crown point out to provide transport and a telephone could be the key to someone on the run staying at large. Here, fortuitously it appears that the phone may have alerted the police to Butler's presence.
Ryan acted with knowledge; he chose to pick Butler up. His motivation cannot and does not excuse the offence. That he may have been, in all probability was, drug affected cannot not excuse the offence. The fact that the crime he committed was connected with the investigation of an alleged homicide is a marker of the significant seriousness: Sampson v R [2014] NSWCCA 19.
On the other hand, the police were not at all hindered in their investigation of the allegations against Butler by anything Ryan did. It is his apprehension which was impeded because Butler was allowed to use the vehicle. It is unlikely the vehicle was being used to enable Butler to escape the jurisdiction.
Mr Anderson's point is that there was no active participation in the police pursuit by the offender. He was just in "the wrong place at the wrong time."
Mr Crown's point is that by providing any escapee with a vehicle in such circumstances created the real possibility of what, in fact, occurred here: that the vehicle would be used to avoid apprehension with the consequent enhanced risks the pursuit of the vehicle would occasion to others in the community.
It is that point, which I accept, that brings this matter above the very bottom, of the range so far as objective seriousness is concerned. But to be clear in accepting that submission I note that Ryan is not being punished for the police pursuit.
Principles of general deterrence are important when it comes to assess the sentence for matters such as this. It is important that the community understand and appreciate the seriousness of this type of offence. To be clear it must be understood that unlike the attitude displayed by Ryan; friend or not, if you know someone has been involved in the commission of a serious crime and is wanted by police the law will punish you if you do anything intending to hinder the police, including hinder the wanted person's apprehension.
Although Ryan has a number of significant problems, including mental illness and associated cognitive disabilities, he is also a rational person who is able to make rational decisions. He needs to know and understand how serious helping a mate can be in such circumstances. If he hasn't learnt that lesson by the additional period in custody he has spent, he never will. Because of his loyalty to a friend it has meant that his loyalty to his mother, his father, his family and his daughter, who he professes to be the most important things in his life, were put to the side - just to help a mate. Well, he has to think carefully about where his loyalties lie in the future. He chose his mate, who may have committed a serious crime, over his family. I think he is astute and smart enough to realise the wrong decision was made.
I have to take into account his criminal record. He has been before the Children's Court and he first went to gaol in 2011. He has been in gaol for almost all of the last decade. He was sentenced by me in 2017. When I sentenced him I noted that; he had a number of significant mental health issues, his need for rehabilitation and his high risk of his institutionalisation. He was due for release to parole on 15 August 2018. He was in fact paroled a month later, but he was re-arrested within a month. He was re‑paroled on 24 May 2018, applying the "manifest injustice" provisions in s 137B Crimes (Sentence Administration) Act 1999 and reg 23 of the associated regulations.
He had spent longer in custody than I had intended, but he was the maker of his own fate. I have no information as to what the manifest injustice was, but he failed to take advantage of his release. It would appear from all the material before me that no structured programs were put in place other than appointments with the State Parole Authority; one of which he kept and the others he was unable to keep because of his arrest for this matter.
I will, as I must, increase the appropriate sentence because it was committed in breach of parole and in breach of the promises I have referred to. I do not believe he should lose the entire balance of parole as I have taken into account it is a circumstance of aggravation of sentence. Such matters should not be double counted.
I propose to start the sentence four months after he returned to custody. The commencement date is 13 September 2019. On this point I have considered as, noting matters referred to in the parties written submissions and Callaghan v R [2006] NSWCA 58.
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SUBJECTIVE CASE
I have the benefit of a report of a psychiatrist, Dr Dayalan, of 14 April 2020. I have references from his family and friends, including his mother, who is currently caring for his daughter. In her letter she has told me she has "had enough." She has had a serious health scare and Ryan was not there to assist her. She says she has noted some change in him during his most recent period in custody and some determination to stay off drugs for good. She reaffirms he has his family's love, but she also reaffirms, as she may have said so many times before, that he has so much to do outside of gaol. He needs to learn how to live in a positive way.
She also notes how much his offending and his gaoling has caused his daughter to suffer. He says his daughter is his entire world. But the material before me indicates that by continuing to commit crimes he hasn't given that significant factor too much consideration. His mother notes that COVID-19 restrictions are ongoing and that personal visits have not been allowed.
Justice Health reports note that Ryan is being medicated and on the methadone program. He has been actively requesting psychiatric assistance.
Dr Dayalan's conclusions and report and history are professional and uncontroversial. She does not appear to be parroting any self-serving statements. To the contrary, she sets out many negatives so far as the offender's behaviour is concerned, and her conclusions as to his risk of reoffending if he does not get the assistance he requires are well formulated.
Dr Dayalan reports he relapsed within days of release to parole by using heroin, methamphetamine and benzodiazepines. She says he was living in his car although visiting his mum. She stressed that at the time of his release which was just prior to the commission of this offence he was unable to adjust to normal community life. This is clear from the commission of this offence and his immediate relapse into drug use. He was depressed on release and she notes that he is remains depressed and still has occasional auditory hallucinations.
She notes Ryan's early uptake of illicit drugs and a diagnosis of schizophrenia when in his early 20s. He suffers from this chronic condition, and his illness is complicated by substance abuse. She notes that he functions better in custody. In custody he can remain drug-free, hold down jobs and do courses. But this in turn has an impact on his capacity to adapt to normal community life. He has become institutionalised.
The corollary is unfortunately the more time he spends in custody the less likely he is to improve his capacity to live a normal life in the community. It is obvious from; his record, from the expert opinion and the opinion of his mother that custody has not worked to dissuade him from committing further offending.
Dr Dayalan concludes that if he is to lead a law-abiding life in the community he needs multi-agency support and drug rehabilitation must be attempted again. She notes that he may qualify for NDIS and would need to attend and be assisted by Community Mental Health. Without such assistance he is a high risk of reoffending.
In 2017 I took into account as a mitigating factor the impact of his mental illness which has plagued his life since a teenager. I had regard to, as I do now, the principles set out in and summarised in DPP v De La Rosa (2010) 205 A Crim R 1. I found then, as I find now, that his mental illness reduces his moral culpability. But, I also concluded my remarks by saying that I did not wish to see Mr Ryan again. Unfortunately I have. Nothing has changed.
There is no direct evidence of any direct causal link between his mental illness and the commission of this offence. But that illness and the long term impact of his incarceration over a decade means that Ryan suffers from cognitive impairments which mean he does not have the capacity that most of us have; to make sensible moral decisions, to learn from example, to apply common sense. In fact it would appear time and time again Ryan acts against his own best interests.
I will take into account the matters set out by Ms Dayalan. I will conclude my remarks by saying I hope not to see you again, Mr Ryan, but I can have no confidence that will be the case.
Every offence and every offender requires the individualised treatment of the courts. I have to take guidance from a number of sources including the maximum penalty and the decisions of other courts. I have been referred to a number of those cases and the Public Defender's summary by Mr Anderson.
That guidance is always welcome and consistent application of principle must always be a relevant factor. But each case and each individual requires separate consideration.
Mr Anderson made reference to the present pandemic. At present Corrective Services policies and good management, perhaps good luck, have prevented the outbreak spreading into custody. It has had an impact on some prisoners, particularly so far as lack of visits, a matter I will take into account. There is no other evidence before me in relation to the present offender that might cause me to go further.
Synthesising all these matters means there has to be a period of custody. There has to be a reduction because of the plea of guilty. The sentence should be partially backdated and there should be a finding of special circumstances because the longer Ryan is given the opportunity of being supervised in the community the greater the chances are that he might avoid reoffending.
He has a number of things to look forward to in the community. He has family support, he has a daughter. But also his life has been normalised around living in institutions where all decisions are made for him. He has not, because of his mental illness, come to grips with a very significant drug problem. All his associates apart from immediate family and some close friends appear to be people he has met or knows from gaol or criminals in the local community. He has some important choices to make. He has failed every time so far.
I cannot imprison him beyond what is required by the circumstances of this offence; beyond what is required by its objective seriousness. At the same time, I have to make some allowance for him being provided assistance for as long as possible, and so the finding of special circumstances is based upon the risk of further institutionalisation rather than any confidence I have that he may not reoffend, and I would urge that he get as much support as possible, and I would urge if at all possible that Mental Health Community Treatment Orders be put in place as soon as practical. And, if it is possible given the COVID restrictions, he engage in full time or concentrated outpatient drug rehabilitation.
Synthesising all those matters into time in custody: had it not been for the utilitarian value of the plea of guilty a sentence of two years would have been imposed. A sentence of one year and six months is required. To allow for the maximum period of supervision in the community I will make a significant finding of special circumstances.
The sentence in this matter will be one of one year and six months. There will be a non-parole period to commence on 30 September 2019 which means you will be released to parole on 29 June 2020. There will be a parole period of nine months. I direct you be supervised for that period and obey all reasonable directions.
What that means Mr Ryan is that you will be released on 29 June 2020.
OFFENDER: Yes, your Honour.
HIS HONOUR: You should start immediately making arrangement with Probation and Parole to see what they can arrange. You should keep your appointments with them and hopefully engage with the Wayback program or a similar program in the community.
OFFENDER: Yes, your Honour.
HIS HONOUR: You should make appointments to see your GP, get a community treatment plan. You should see Community Services to see if you can get on the NDIS so that you can get additional support, financial support for your mental health treatment.
OFFENDER: Yes.
HIS HONOUR: When and if you meet your friends from gaol and in the community and they suggest let us do something, like take drugs, you have got a choice. You can think about your mum and your daughter, you can think about the cell you are going to leave in a few weeks' time. If you want to go back into gaol just go down to the Parole Office, do not commit another offence. If you want to care and learn how to care for your daughter and support your mum you will follow the directions of the Probation and Parole Service. I cannot be any blunter than that.
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Decision last updated: 07 July 2021