REGINA v RYAN

McHugh J said (at 278, citations omitted, emphasis in original): [33] Sentencing is not a mathematical process. Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process.

[34] First, there were multiple offences involving repeated acts committed over a number of years. They were not isolated incidents which might be said to be out of character. Secondly, the appellant was, as his counsel conceded before Judge Nield, leading a double life. Over many years, the appellant was doing "good works" while he was committing grave offences. This contradiction indicates that the appellant's otherwise good character was a minor factor to be weighed. Thirdly, the appellant committed the offences in the course of his priestly duties and it was as a priest that he did the "good works" which are at the heart of his claim of good character. This reduces the weight that ought to be given to his otherwise good character. Fourthly, and related to the third point, the offences involved breaches of trust. [35] Given these circumstances, Gleeson CJ was correct when he said that the appellant was not entitled to significant leniency because of his otherwise good character. However, Judge Nield gave the appellant no leniency whatsoever for his otherwise good character. He was entitled to some leniency for his otherwise good character. That being so, the Court of Criminal Appeal should have allowed the appeal and re-sentenced the appellant. In re-sentencing the appellant, some weight should be given to the appellant's otherwise good character.

22 Kirby J said (at 299-300, citations omitted): [107] Against the background of such evidentiary materials, it is, with great respect, impossible to sustain the conclusion of the sentencing judge that the appellant was not entitled to "any leniency whatsoever" for his previously unblemished character and reputation. Yet three substantive reasons were suggested to support the sentencing judge's approach.

[108] First, it was said that the appellant was a priest, and that a good reputation was therefore to be expected. Such an approach, if valid, would deny persons who happen to be priests (or in equivalent occupations) the benefit to which all other persons in our community coming before a court for sentence are entitled, namely to rely on evidence relevant to their character and past conduct and to bring such evidence to account so that the sentencing judge considers them as a whole person and not solely under the shadow of their crimes. Such an approach would equalise the cruel, slothful, indifferent or impenitent offender with one who can demonstrate conduct over many years, in other aspects of life, that reveals positive qualities. If such considerations were not taken into account at all, as matters personal to the offender at the time of sentencing, it would mean that a significant part of the evidence normally tendered as relevant to sentencing would have to be excluded simply because of the appellant's vocation as a priest. As this is not the law, it provided, with respect, no basis for the rejection by Judge Nield of the relevance of evidence about the appellant's general character in this case.

[109] Secondly, it was said that there was, in fact, no good at all in the appellant deserving of consideration at the time of sentencing. With respect, this assessment completely fails to respond to the uncontested statements of witnesses who knew the appellant, knew of his offences, and provided their statements so that their experience concerning the appellant could be taken into account at such an important time by the judge who had the responsibility of sentencing him.

[110] Unless a statute or some other law requires the contrary, sentencing of offenders always involves consideration both of matters relevant to the offence and matters relevant to the offender. In Canada, these are commonly called "offence factors" and "'offender' considerations". In Australia, they are sometimes described (inaptly in my view) as the "objective" and "subjective" considerations. To ignore totally evidence relevant to the latter because of a general assessment that the appellant was not, globally speaking, a good man or had committed serious crimes, involves a departure from basic sentencing principle. Even in the case of offences against vulnerable children and young persons over an extended period, as here, a proper evaluation of all matters relevant to the sentencing function required that some weight be given to the evidence of character that stood to the appellant's credit. By dismissing that evidence out of hand, and refusing to give it any weight at all, the sentencing judge erred.

[111] Thirdly, it was said, most especially in the Court of Criminal Appeal, that in a case such as the present, "significant leniency" could not be given for good works done in pursuance of the appellant's priestly vocation because of the revelation that, for so long and with so many, the appellant had abused the trust which came with that vocation. It is true that it is sometimes stated that, in cases of prolonged criminal activity, a previously demonstrated, or assumed, good character is of less importance than in other cases. However, the character witnesses called for the appellant recounted their specific knowledge of the type of offences of which he was convicted, the prolonged period of offending involved and the fact that many boys had been the victims of the offences. Despite this, each witness adhered to the opinion that, in identified aspects of his life, the appellant had acted in ways that deserved consideration when a full assessment of his character and of the matters personal to him was being considered by the sentencing judge.

[112] A sentencing judge might conclude that the objective criminality of the offences, and the imperative need to give priority to general and specific deterrence in a case such as the present, meant that less weight could be given to such evidence in the appellant's case than in different circumstances, with different offences involving different victims over a different period of time. In a particular case, a sentencing judge might even come to a conclusion that no "significant leniency" could be given to such evidence when all considerations relevant to sentencing were assessed. However, the judge could not justify a complete refusal to attach any significance whatever to such character evidence. Rejection of the evidence as irrelevant to sentencing was therefore a second specific error. It ought to have been corrected by the Court of Criminal Appeal. The failure to do so, in my opinion, also requires the intervention of this Court. 23 Callinan J said (at 317-319, citations omitted):

[174] It is convenient to deal with ground (e) first. It is well settled that whilst bad character will not operate to increase a sentence, good character may operate to reduce the sentence which the facts of the crime would otherwise attract. In some cases good character has even been held to be so significant a factor as to require the imposition of a non-custodial penalty in lieu of a term of imprisonment. In exercising a sentencing discretion, less weight has been given to previous good character in circumstances in which the offence is not an isolated act. When the crime or crimes are part of a prolonged course of criminal activity, less weight will usually be given to the apparent good character and record of an accused. In Hermann [ (1988) 37 A Crim R 440 ] , an appeal against a sentence imposed on a man of apparent good character, who had sexual intercourse with his step-daughter on a number of occasions over a period of three years, Lee J (with whom McInerney J agreed; Kirby A-CJ dissenting) said [At 448]: "So far as the question of good character is concerned, it has been pointed out in other cases that, where the event is not an isolated one, it is difficult for the court to give a great deal of consideration to an accused's 'previous good character', for the truth of the matter, as the evidence has disclosed, is that whilst appearing to have a good character and others believing so, he has over a lengthy period been committing a heinous crime on a helpless child. To give to an applicant's so-called 'previous good character' much weight in such circumstances is to give an appearance that the court is conceding to a parent or person in loco parentis or within the family unit some right to use a child for sexual pleasure at will. Of course, when the offence is an isolated one, the matter of the good character of the applicant as a factor in mitigation may be given a much greater degree of significance." ….

[177] … Of course the abuse of an office to commit a crime is greatly to be deplored but the crime of a person occupying an office of some prominence will often attract much greater vilification, adverse publicity, public humiliation, and personal, social and family stress than a crime by a person not so circumstanced. When these consequences are attracted they should not be ignored by the sentencing court. So much was conceded, and in my view, properly so by the respondent. To ignore such matters would be as unjust to a prominent person as it would be, in the case of a person in a menial position, to ignore disadvantages to him peculiar to his position, such as a likely greatly reduced, if not utterly destroyed capacity on release from prison, to find any remunerative employment at all. Nor do I think that the appellant should be disqualified from obtaining a credit for good character because such good character as he possesses has been gained in otherwise diligently doing his duty as a priest. Not everyone in a calling performs it as well or as diligently as another or other persons in it. One who does conscientiously perform his or her duty is entitled to the benefit of his or her reputation and character for so doing. And to acknowledge that some occupations, such as, perhaps, nursing, teaching, the clergy and the armed services, may attract well-motivated men and women and give them special opportunities to perform public service is not to disparage or demean others.

[178] Here the appellant had, for a long time, done many good works. Much of the shine of these was taken off by his gross misconduct in abuse of his office, but not all of it. Character is not, as has been observed, a one-dimensional feature of any person. There is no reason why a priest who had conducted himself diligently and helpfully in other respects over many years, and has earned a good character in those respects, should not be treated somewhat differently from a priest who has not conducted himself so as to earn a good character, but had committed the same offences as this appellant. The sentencing judge made it clear that he would disregard entirely the appellant's good works. He did so in strong, indeed understandably strong language, but without perhaps the detachment that his role required. His Honour refused even to find good character at all. So to hold was, in my opinion, wrong, and to fail to take some account of the appellant's good character otherwise was an error of principle calling for correction by the Court of Criminal Appeal.

24 The appellant submits that this Court is bound in the circumstances to proceed to sentence afresh. In principle, this is correct (see R v AB (No 2) [2000] NSWCCA 467). However, no specific error was identified, other than that upon which the successful appeal to the High Court turned. Nor has the appellant argued, let alone demonstrated that the sentences were manifestly excessive in their particulars or their totality. 25 I would go further and state that, apart from the error identified by the High Court, I see no reason to differ from the essence of the reasons given by the judge or this Court in the earlier appeal. Suffice it to say that the offences were very serious, involved significant breaches of trust, and were committed over an extended period of time upon vulnerable young persons for whom the appellant had a special responsibility by virtue of his priestly function. There is considerable evidence that the offences have had significant and lasting impact upon the young victims. 26 The appellant accepts that the sentences to be imposed must reflect elements of denunciation, punishment, protection of the community and specific and general deterrence. 27 The reasons of Judge Nield disclose that he paid proper regard to the pleas of guilty and what they represented. The decision of the High Court establishes that there was no appealable error in the judge's approach to the appellant's disclosure of unknown offences. 28 The appellant submits that the utilitarian value alone of the plea should, in the present case, be assessed as a 25% discount on sentence in accordance with the principles in R v Thomson (2000) 49 NSWLR 383 and R v Sharma (2002) 24 NSWLR 300. The Crown on the other hand submits that there is no requirement to allow a discount of that magnitude, and that the sentencing judge's reasons (AB 206-7) disclose no error in this regard. 29 Judge Nield said this: The Crown's case against him in relation to many of his victims rests solely on his admissions to police. His admissions show his desire to make a complete disclosure of his conduct. These things go to his credit, show his contrition and entitle him to a discount in punishment. He pleaded guilty to all of the charges at the earliest appropriate opportunity. His guilty pleas have saved the State the time and costs of a committal hearing and a trial, they have relieved his victims of the need to relive the sorry episode in their lives, and they show his contrition. His guilty pleas go to his credit and entitle him to a discount in punishment. Notwithstanding that he did not give evidence before me and, therefore, I cannot assess for myself the genuineness of his contrition, I accept that his acts since being spoken to by police show that he is contrite for his conduct towards his victims. I mean by this that he now appreciates the harm that his conduct has had upon his victims and that he is sorry that he has caused them further hurt and pain. But I do not think that he regards his conduct as wrong.

30 I would accept the Crown's submissions in this regard. There was no error in the manner in which the sentencing judge addressed or allowed for the appellant's pleas of guilty and everything that they entailed. 31 In these circumstances, the issue and the only issue needing to be addressed is the extent to which allowance should be made having regard to the principles expounded by the High Court in relation to the appellant's character. The relevant passages in the majority judgments have already been set out. I consider it unhelpful to parse the separate judgments, although I acknowledge that there may be differences in emphasis as to the relative impact of good character upon this particular sentencing exercise. 32 The original favourable material as to character is summarised by McHugh J at [32], Kirby J at [105]-[106] and Callinan J at [178]. 33 The character references to which we have been taken are those that were before Judge Nield and a number of additional references and reports that are attached to affidavits of the appellant's solicitor sworn on 19 April 2002 and 6 June 2002. The more recent character references are, in the main, updates from people whose references were considered by Judge Nield and who have continued to care for the appellant while he has been imprisoned. They attest to the good works of the appellant in his priestly functions, to the shock which revelation of his paedophilic activities brought to those with whom he had dealings, and to his present contrition. As to the former matter, the following (from a parishioner between 1988 and 1995) is indicative: My experience of Father Ryan during this time showed me a man who was concerned for his parishioners, devoted to God, blessed with a great intellect and imbued with a vision for the Church which would prepare us for the demands and challenges of the new millennium. While he obviously struggled with regular bouts of depression, Father Ryan proved himself to be a man who had the courage to speak out for the marginalised and the strength of his convictions to stand against injustice.

34 There is also material making it clear that the appellant will be regarded as entirely disqualified from any pastoral duties upon his release from prison. That evidence indicates that it is the intention of the Catholic Diocese of Maitland-Newcastle that the appellant should be placed into its "Encompass" program upon his release. This is an initiative of the Australian Catholic Bishops' Conference that, inter alia, provides counselling, treatment and ongoing supervision for sex offenders. 35 This additional material has been taken into account, as have the reports as to the excellent conduct of the appellant as a prison inmate. Nor have I overlooked the weight of disapprobation, stress and stigma stemming from the convictions and sentences imposed and all that flows from them. These have understandably struck hard upon the appellant. 36 These and other materials placed before us indicate the likelihood that the community will be protected upon the appellant's release from custody. They leave relatively untouched the factors that require the community to mark its condemnation of the appalling abuse by condign punishment. 37 In view of the principle that when a Court finds error on the part of the sentencing judge it should sentence afresh, I have undertaken the exercise required by that principle. 38 In fixing the sentences regard must be had to the principle of totality. Difficulties also arise because of the multiplicity of offences. 39 Fixed terms of 1 year on each of counts 1 to 9 and counts 13 and 13 are correct. It was also correct to make the sentences on counts 5 and 6 concurrent and otherwise to make the sentences on the counts mentioned cumulative. I would impose like sentences. Counts 10, 11 and 12 were the most serious and must carry longer sentences. For practical reasons it is desirable to reflect the allowance for "otherwise good character" in the sentences on those counts. To reduce each of the fixed terms of 1 year by a small amount would be impractical. Further, on those counts sentences of less than one year would not adequately reflect the gravity of the criminality involved. 40 That conclusion is reached after taking into account all the subjective features of the applicant including his disclosure of offences unknown to the authorities. The applicant saw some benefit in such disclosures. It would stop him being subject to more sets of further proceedings over the years as each of the victims came forward. The applicant wanted to close of the ledger as best he could. 41 Taking into account the objective criminality of the offences, all the subjective features of the applicant including the "otherwise good character" of the applicant, the principle of totality, the effect of the accumulation and the special circumstances including the accumulation, and the applicant's need for a lengthy period of rehabilitation and support the correct sentence on each of counts 10, 11 and 12 is one of 6 years with a non-parole period of 2 years. Those sentences should be served concurrently and should overlap that on count 14 by commencing on 23 May 2008. That is necessary to reflect the application of the principle of totality. Lesser sentences than those proposed could not be imposed consistently with the objective gravity of the offences. 42 In my view, the limited and particular error detected by the High Court enables this Court to retain the structure of the sentencing exercise adopted by Judge Nield. Given the pleas of guilty to all charges and the fact that the adjustment for good character is intended to affect the totality of the sentence overall, it is appropriate in the circumstances that the adjustment should be engrafted upon the sentence for counts 10, 11 and 12. Those counts attract no special claim for adjustment but nevertheless give rise to the portion of the total sentence that represents the temporal outer limit of the appellant's punishment. 43 The new sentence on those counts proposed below differs in substance from the existing sentence by being made concurrent with that imposed for count 14 and by reducing what used to be called the additional term from 5 years to 4 years. In the upshot the total period of custody for both sets of offences is reduced from 15 years to 14 years and the non-parole period from 11 years to 10 years. Of course, when these sentences are added to those imposed by Judge Rummery the applicant will be subject to sentences of imprisonment effectively totalling 20 years and non-parole periods totalling 14 years. 44 The adjustment is relatively small having regard to the whole term. It retains the condign stringency of the original sentence imposed by Judge Nield and thereby reflects the seriousness of the criminality appropriately condemned in the remarks of Judge Nield and this Court as earlier constituted. 45 As the High Court pointed out, the nature and extent of the offences mean that the appellant's "otherwise good character" can only be a small factor to be weighed in his favour. The nature and extent of that good character attracts some leniency, but not significant leniency. Judge Nield gave none, according to his remarks on sentence. 46 In Callinan J's words (supra), the appellant "had, for a long time, done many good works. Much of the shine of these was taken off by his gross misconduct in abuse of his office, but not all of it". The sentence proposed is intended to give due recognition to these matters capable of being said in the appellant's favour. 47 The following orders are proposed:

3. Dismiss the appeals on counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 13 and 14 (being fixed terms of 1 year on each count).

4. Allow the appeals on counts 10, 11 and 12; sentences on those counts quashed. In lieu of the sentence imposed on those counts the applicant is sentenced as follows: (a) On count 10 taking into account matters 1, 3, 5, 7, 31 and 35 on Form 1 (being matters involving the victim of the offence charged in count 10) a sentence of imprisonment for 6 years starting on 23 May 2008 with a non-parole period of 2 years starting that day and ending on 22 May 2010. (b) On count 11 taking into account matters 2, 9, 11, 32, 33, 34 and 36 on Form 1 (being matters involving the victim of the offence charged in count 11) a concurrent sentence of imprisonment of 6 years starting on 23 May 2008 with a non-parole period of 2 years starting that day and ending on 22 May 2010. (c) On count 12 taking into account the remaining matters on Form 1 (Matters 4, 6, 8, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 37, 38 and 39) a concurrent sentence of imprisonment of 6 years starting on 23 May 2008 with a non-parole period of 2 years starting that day and ending on 22 May 2010.

5. The applicant will be eligible for release on supervised parole on 22 May 2010. 48 HULME J: I agree with Mason P. 49 SMART AJ: I agree with Mason P. **********

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