R v Van Ryn

THE PLEA OF GUILTY

1. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. (The 'act')
2. The guilty plea was indicated and entered at an early stage in the Local Court. The crown in its submissions conceded that the pleas were entered at the earliest reasonable opportunity and accordingly the full 25% discount is applicable.
3. The indicative sentences that I will announce in these reasons for judgment will have been discounted by 25%. I also make the observation that the course adopted by the offender has spared the necessity for the victim to give evidence which would have been severely traumatic and hurtful.

VICTIM IMPACT STATEMENT

1. Section 25AA(3) of the act requires the court to have regard to the trauma of sexual abuse on children.
2. The victim provided a victim impact statement dated 1 May 2019 (Exhibit 3). I have read that statement and do not intend to repeat its contents, save to say it demonstrates that the victim is deeply affected by the actions of the offender with flashbacks, episodes of self-harm, anxiety, relationship and trust issues with suicidal ideation. The victim indicates his prison is his thoughts and he faces those thoughts daily for the rest of his life.
3. It is appropriate to record what was said by the President of the Royal Commission into Institutional Response to Child Sex Abuse at the opening hearing of the Royal Commission on 16 September 2013. In his opening address, Justice McClellan said: "What many may consider to be low levels of abuse of boys and girls can have catastrophic consequences for them, leading to a life which is seriously compromised from what might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties with intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in life long difficulty in relationships which can cause problems in other aspects of their lives. Although the impact on the lives of abused persons has been reported within the academic literature, I have no doubt that it is not well understood by the general community. In my role as a Judge I have been called upon to review many of the sentences imposed upon people convicted of the sexual abuse of children but I readily acknowledge that, until I began my work with the Commission, I did not adequately appreciate the devastating and long lasting effect which sexual abuse, however inflicted, can have on an individual's life."
4. I agree with the Commissioner.

AGREED FACTS

1. There is an agreed facts document at tab 1 of exhibit 1 (the crown sentence summary). The agreed facts are as follows:
2. In September 2014 investigators from New South Wales detectives formed strike force Roxborough. Strike force Roxborough was established to investigate numerous aggravated sexual assaults committed upon a number of known victims by the offender Maurice VanRyn. The offender is currently serving a custodial sentence in relation to sexual offending against children. The custodial sentence commenced on 10 December 2014 and concludes on 9 September 2032. The offender received a non-parole period of 13 years and 4 months which concludes on the 9th of April 2028.
3. The offender was born 23 April 1955.
4. The victim AZ was born 18 March 1996.
5. On 13 March 2018 the victim attended a police station and provided a statement to police alleging sexual offences committed by the offender against him when he was a child.
6. As a child the victim resided in New South Wales with his mother and stepfather. In 2012 he moved interstate to reside with his father. He turned 16 not long after moving interstate.
7. When living in New South Wales he attended school and was friends with other children in the neighbourhood.
8. One of his close school friends resided across the road from the offender. The offender was friends with the boy's family. From the age of 14 the victim would spend time with his friend and they would commonly visit the offender at his residence. Through this friendship the victim came to know the offender. The offender's residence had a pool, spa, tennis court and was more impressive than either the victim or his friend's residence.
9. The offender sexually assaulted the victim between 2010 and the end of 2011. The victim was aged between 14 and 15 years.

First occasion of sexual abuse:

1. The victim can particularise the first incident of sexual abuse.
2. On one occasion between December 2010 and January 2011 the victim attended the offender's residence with his friend. He was 14 years old. At one stage throughout the day the victim was alone in the outdoor spa with the offender. The offender's wife was not at the house at the time. The other person although being present was not in the spa. The victim believes he may have been playing computer games.
3. They sat in the spa opposite each other talking. They were each wearing boardshorts. After a period of time the offender moved around so he was next to the victim. The offender put his hand on the victim's leg. The victim froze and the offender moved his hand up his leg and up the inside of his boardshorts grabbing him on the genitals.
4. The offender began to play with the victim's genitals before lifting the victim and putting him on his lap. The victim was positioned so he was facing the offender. The victim had an erection and the offender put the victim's penis in his mouth and performed oral sex upon the victim. The victim is unable to recall how long this went for and what had occurred after he placed his penis in his mouth (sequence 1- aggravated sexual intercourse with a child aged 14-16 pursuant to s 66C(4) of the Crimes Act 1900).

Night before the sports carnival:

1. The victim was able to particularise another incident which occurred in the middle of 2011. The victim, aged 15 years old, was staying overnight at his friend's house and it was the night before a school sports carnival. They went across the road to the offender's house and they ended up staying the night.
2. During that evening the offender gave alcohol to the victim. The victim recalls drinking either a UDL can of spirits or a beer. This was not the first time the offender had given him alcohol.
3. After the victim consumed the drink the offender took him into a bedroom. The victim lay on his back on the bed and the offender knelt in front of him and put the victim's legs over his shoulder. The offender had anal intercourse with the victim and ejaculated. (Sequence 4- aggravated sexual intercourse with a child aged 14-16 pursuant to s 66C(4) of the Crimes Act 1900).
4. After ejaculating the offender performed oral intercourse on the complainant (Sequence 7- aggravated sexual intercourse with a child aged 14-16 pursuant to s 66C(4) of the Crimes Act 1900).
5. These acts were not isolated incidents.

Near the end of 2011:

1. The victim can particularise a further incident near the end of 2011 when he was aged 15 years old. He was at the offender's residence in the lounge room with the offender. The offender placed a towel down on the floor. The offender performed oral sex on the complainant (sequence 3 - aggravated sexual intercourse with a child aged 14-16 pursuant to s 66C(4) of the Crimes Act 1900).
2. The offender told the victim that he would give him $150 and would give him an extra $50 if the victim gave the offender oral sex. The victim ultimately did not perform oral sex on the offender.
3. The offender gave the victim money at other times for either doing jobs around the house or for no apparent reason. This was the first time he had offered money in exchange for sexual acts.
4. After the victim moved interstate he met up with the offender on one further occasion when he returned to New South Wales. He was 16 years at that time.
5. The victim did not disclose the abuse for several years because he felt embarrassed, felt responsible and believed people would think he was gay. He told his girlfriend generally what had occurred in 2016. It was early March 2018 that he felt he was emotionally equipped to deal with what had occurred and he reported the abuse to the police.

OBJECTIVE SERIOUSNESS

1. The agreed facts demonstrated predatory behaviour on the part of the offender. Predatory in the lead up to and commission of the offences.
2. The offender had built a paedophilic friendly environment that assisted in the abuse of this young person. He had a substantial house with spa, pool and tennis court. There was the added attraction of computer games and alcohol. It was a venue to entice and take advantage of the young person which the offender did. He also offered money for sex which was ultimately denied.
3. The offender engendered a comfortable and generous relationship with the young person and sexually violated him in that context. The abuse was over an extended period.
4. I have also taken into account the age disparity between the young person who was 14 to 15 and the offender who was in his late 40s.
5. The age of the victim in relation to the age range covered by the statute is a factor going to the objective seriousness of the offending. The younger the child the more serious the offence. The offending commenced when the victim was 14. The section covers the age range between 14 and 16. The victim was at the bottom of the applicable age of the section which increases the objective seriousness of the offending.
6. The offending took place over 12 months. It was not a single isolated incident. It commenced with touching of the genitals and progressed to sexual intercourse.
7. The offer of financial reward to the victim is indicative of the degree of power and inequality between the offender and the victim. It is indicative of the degrading nature of the relationship between the offender and the victim and demonstrates how the offender treated the victim as a sexual object for conquest and satisfaction.
8. The nature of the sexual intercourse is relevant and all surrounding circumstances must be considered. Three charges involve fellatio and one is of anal intercourse.
9. I have considered all of the relevant circumstances as set out in the agreed facts.
10. I find that the count of anal intercourse (sequence 4) is objectively more serious than the other 3 counts. The count involved the accused ejaculating in the anus of the young person. It involved degradation of the victim and also exposed the young person to potentially transmitted disease.
11. The Court of Criminal Appeal in R v Van Ryn [2016] NSWCCA 1 at [255] assessed similar offending as "very serious examples of their kind". The count of anal intercourse is dissimilar to that before the Court of Criminal Appeal in that the offender did not cause pain and forcefully continue with anal intercourse for over 5 minutes. However, the offence before me involved ejaculation.
12. The offences before me are very serious examples of their kind.
13. The offender's counsel submitted that the indicative sentences imposed by the Court of Criminal Appeal (count 3, fellatio - 4 years and 6 months and count 4, anal intercourse - 5 years and 3 months) ought be used as a guide to penalty. I accept that submission. They are a guide to assist me, but I must take into account all of the circumstances of this offending. The circumstances here are different to the victim NC. NC looked upon the offender as a father figure which in my view was a greater breach of trust than this offending. This offending was predatory. The offences in this case although not isolated were not as frequent as those in the case of NC. In the case of NC the offender when anally penetrating the victim caused pain, but nonetheless continued with intercourse after protestations from NC. I intend to impose a different sentence for the anal intercourse of this victim than that imposed on the offender in the matter of NC. It was very serious offending against this victim, but less so than the offence against NC.
14. I have taken the above matters into account when considering and applying the principle referred to in EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: "General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment."
15. I might also add that although the offender is serving a lengthy term of imprisonment, the sentence I impose has a degree of specific deterrence incorporated into it. The sentence must deter the individual and I must send a message to the community that the sexual abuse of children under any circumstances will not be tolerated and that those who engage in it will receive significant punishment. I intend to impose significant punishment as a reflection of the general principle and its application. His conduct must also be denounced. The community needs to be protected from his conduct.

S 21A(k) Abuse of position of trust

1. The offences occurred whilst the victim was a guest in the home of the accused. The accused abused the trust instilled by the victim as well as the trust of his guardian. The position of trust was repeatedly breached over a period of nearly a year. The offender relied upon his position in the community to ingratiate himself with the victim allowing the abuse to occur.

SUBJECTIVE FEATURES

1. The subjective circumstances of the offender were taken into account by the Court of Criminal Appeal. I have read the judgment and have taken into account what the court said about the offender's subjective circumstances. It is not necessary to repeat those matters in this judgment. He is a very intelligent man who was a highly successful businessman.

OTHER FACTORS

1. In exercising the sentencing discretion afresh the Court of Criminal Appeal took into account the following matters: 1. His prior good character. However, good character is of less significance in cases involving repeated sexual offending against children over a lengthy period of time: at [285]-[286]. 2. His charitable and other community engagements which were significant: at [285]. 3. His remorse and prompt seeking out of psychiatric treatment for his paedophilic condition were significant matters: at [287]. 4. The finding of the primary judge that there are "reasonable" prospects of rehabilitation should be made: at [288]. 5. The difficulties his wife has experienced and his anxiety in relation to it should be taken into account: at [290].
2. I also take those matters into consideration in arriving at a just sentence.

DELAY

1. It was submitted on behalf of the offender that absent delay, this matter would have been dealt with when the other matters were considered by the Court of Criminal Appeal and therefore the sentence would not have been any different. It was submitted that the sentence I impose should be concurrent with the sentence imposed by the Court of Criminal Appeal. I do not accept that submission because this case involves a separate complainant and subject to the principle of totality there should be some degree of accumulation upon the sentence the offender is currently undergoing to reflect that fact.
2. This is not a case where there has been demonstrated progress of the offender towards rehabilitation calling for a measure of understanding and flexibility of approach in sentencing. I do accept that delay is to be taken into account when sentencing an offender due to the fact of uncertain suspense in which the offender has been left and I have taken that uncertain suspense into account: Blanco v R [1999] NSWCCA 121 Wood CJ at CL at [16-17], Mill v R [1988] HCA 70 at [66], Sabra v R [2015] NSWCCA 38 at [37], R v Schwabegger [1998] 4 VR 649 at 659.
3. The prosecuting authorities acted promptly when they received information of serious criminality. The current offences first surfaced on 13 March 2018 when the victim approached interstate police and provided a statement. A court attendance notice was served on 17 August 2018. The case was first listed before this court on 29 April 2019.

EXTRA-CURIAL PUNISHMENT/HARDSHIP IN CUSTODY

1. Extra-curial punishment is punishment that is inflicted upon an offender otherwise than by a court of law: R v Wilhelm [2010] NSWSC 378 per Howie J at [21].
2. In R v Wran [2016] NSWSC 1015, Harrison J when faced with significant public attention and inaccurate reporting said at [79]: "The publication of [the] egregious articles warrants the imposition of a sentence that takes account of Ms Wran's continuing exposure to the risk of custodial retribution, the unavoidable spectre of enduring damage to her reputation and an impeded recovery from her ongoing mental health and drug related problems"
3. Exhibit D3 is an article headed "Victims in super snub", which appeared in a daily paper. The article is inaccurate and it is submitted by the offender's counsel that it is but one of many inaccurate articles written about the offender. The article ignores the fact that the offender has paid compensation to his victims. It also inaccurately states the law in relation to superannuation.
4. I do appreciate that there has been significant public attention of the offender and inaccurate reporting of him. However, these are serious matters that warrant responsible reporting. I hope this judgment encourages responsible rather than inaccurate reporting.
5. The concern of his counsel is that articles like exhibit D3 may expose risk of custodial retribution due to the type of offending (paedophilic) and the financial position of the offender (shareholding and assets reputedly worth $9 million).
6. On 26 February 2015 the offender gave evidence on his sentence hearing. Part of the transcript has been tendered in this hearing (exhibit D2). The salient part reads, "Q. Lastly, can you describe the conditions of imprisonment that you have experienced while you have been on remand? A. Well, by way of example the last month has been absolute hell. I've been in solitary confinement at Nowra and solitary confinement might mean that you are physically safe but I've been subjected to 24 hour verbal abuse which has just about sent me over the edge where the neighbouring cells who are not sex offenders, they are mainstream prisoners but they know why you're there, they keep the barrage of 24 hour verbal abuse, which has done my head in."
7. There is no evidence before me of the current conditions the offender is housed under. I can take judicial notice that there is a hierarchy of prisoners and he is the lowest of that hierarchy. His ability to move within the prison system will be limited as he will be required to serve his time in protection and he may not have the same work opportunities as a mainstream prisoner. However, I would fall into error to take into account in mitigation that the offender will serve his sentence in protective custody without evidence that the conditions of imprisonment will be more onerous: RWB v R [2010] NSWCCA 147 at [192]-[195]. I have no such evidence as to his current position.

TOTALITY

1. What do I mean by totality? The principle of totality in sentencing was described by Street CJ in R v Holder; R v Johnson [1983] 3 NSWLR 245 at 260 as follows: "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
2. I have taken this principle into account in determining the overall sentence. There must be a degree of accumulation on each of the individual counts and accumulation upon the current non-parole period of the offender to reflect the abhorrent conduct by him to a separate victim with the overriding principle of relativity between totality of the criminality and the totality of the sentences.

COMMENCEMENT DATE OF SENTENCE

1. The relevant provisions of section 47 of the act provides as follows: 47 Commencement of sentence (1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed. (2) A court may direct that a sentence of imprisonment: … (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. … (4) The day specified in a direction under subsection (2)(b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2)(b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence.
2. I propose to impose a sentence that by its start date will mean that the offender will be eligible for parole 12 months after the current non-parole period which expires on 9 April 2028. It will mean that the offender will eligible for release when he is about 74 years of age. Such a sentence is just and appropriate and could not be considered crushing or destroy any expectation of a useful life after his release.
3. Such a sentence leaves a long enough period on parole for someone of his background and age. I do not intend to impose a non-parole period as part of this sentence.

AGGREGATE SENTENCE

1. Pursuant to section 53A of the act I impose an aggregate sentence.
2. The indicative sentences have been reduced by 25%.
3. The indicative sentences are: 1. Sequence 1 (fellatio) 4 years and 3 months imprisonment, but for the 25% discount the sentence would have been 5 years and 8 months; 2. Sequence 4 (anal intercourse) 5 years, but for the 25% discount the sentence would have been 6 years and 8 months; 3. Sequence 7 (fellatio) 4 years and 3 months imprisonment, but for the 25% discount the sentence would have been 5 years and 8 months; 4. Sequence 3 (fellatio) 4 years and 3 months imprisonment, but for the 25% discount the sentence would have been 5 years and 8 months;
4. The aggregate sentence is 9 years imprisonment.

ORDERS

1. The offender is convicted and sentenced to 9 years imprisonment. The sentence is to commence on 10 April 2020. The offender will be eligible for parole on 9 April 2029. This sentence adds 12 months to his current non-parole period.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2019