Regina v Shannon Ryan

COUNSEL : C. K. Maxwell SC - Crown P. J. D. Hamill - Applicant SOLICITORS : S. E. O'Connor - Crown Heenan & Co. - Applicant CATCHWORDS : Criminal law, breaking, entering and stealing - 8 separate offences - receiving - 3 separate offences - applicant sentenced in respect of the 8 offences of breaking, entering and stealing to penal servitude for 4 years, MT/2 years, AT/2 years. Applicant sentenced in respect of the receiving sentences to penal servitude for a fixed and concurrent term for 2 years - appeal based upon parity with a co-offender whose sentence had been reduced by an earlier decision of the CCA - held: some adjustment justified by reason of parity - appeal against sentence allowed and the minimum term of 2 years imposed in respect of the offences of breaking entering and stealing reduced to 1-1/2 years. ACTS CITED : Crimes Act 1900 (NSW) Sentencing Act CASES CITED: Reg v Diamond: Hunt CJ at CL and James J, Smart JJ dissenting: unreported, 18/2/93; Reg. v Steele: Sheller JA, Grove and Simpson JJ: unreported, 17 April 1997 DECISION : Leave to appeal granted; appeal against sentences allowed and sentences quashed; For each contravention of s.188 of the Crimes Act 1900, the applicant sentenced to penal servitude for a fixed term of 1 year and 6 months, to commence on 11 August 1998 and to expire on 10 February 2000; and in respect of each contravention of s.112(1) of the Crimes Act 1900, the applicant sentenced to penal servitude for 3 years and 6 months, divided between a minimum term of 1 year and 6 months to commence on 11 August 1998 and to expire on 10 February 2000, and an additional term of 2 years to commence on 11 February 2000, and to expire on 10 February 2002.

SPIGELMAN CJ GROVE J SULLY J

JUDGMENT 3 SULLY J: Mr. Shannon Ryan, ["the applicant"], applies for leave to appeal against the asserted severity of sentences passed upon him on 11 August 1998, and by his Honour Judge Nield sitting in the District Court at Penrith. The Court heard the application in conjunction with the hearing of the Attorney-General's application for a guideline judgment in connection with offences contravening s.112(1) of the Crimes Act 1900 (NSW); which guideline judgment is being delivered this morning.

4 On 29 July 1998 the applicant pleaded guilty to each of eleven counts in an indictment then presented against him. Each of the first three counts in that indictment charged the applicant with the offence of receiving stolen property contrary to s.188 of the Crimes Act. Any such contravention attracts upon conviction a maximum statutory penalty of penal servitude for 10 years. Each of the remaining seven counts in the indictment charged the applicant with an offence of breaking, entering and stealing contrary to s.112(1) of the Crimes Act 1900. Each such offence attracts upon conviction a maximum statutory penalty of penal servitude for 14 years. The applicant asked the learned primary Judge to take into account one further matter concerning the unlawful possession of cannabis. 5 On 27 July 1998, a co-offender of the applicant, one John Scott Hill, was arraigned upon an indictment containing eleven counts. Eight of those counts alleged separate offences of breaking, entering and stealing, being offences jointly committed with the present applicant. Two further matters charged against Mr. Hill were, also, charges of breaking, entering and stealing; but those two particular offences were not committed by Mr. Hill jointly with the present applicant. The remaining matter charged against Mr. Hill was a single offence of receiving stolen property contrary to s.188 of the Crimes Act 1900. 6 On 11 August 1998 both the applicant and Mr. Hill stood for sentence before his Honour Judge Nield. Mr. Hill was sentenced, in respect of the breaking, entering and stealing offences, to ten concurrent terms of penal servitude of 5 years, each such sentence being divided between a minimum term of 2-1/2 years and an additional term of 2-1/2 years. In respect of the receiving offence, Mr. Hill was sentenced to a fixed term of penal servitude of 2 years, to be served concurrently with the other sentences then passed upon him.

7 The applicant was sentenced, in respect of the eight breaking, entering and stealing offences, to concurrent sentences of penal servitude for 4 years, divided in each case between a minimum term of 2 years and an additional term of 2 years. In respect of each of the three receiving offences, the applicant was sentenced to a fixed term of penal servitude for 2 years, each such fixed term to be served concurrently with all of the other sentences then passed upon him.

8 Mr. Hill applied to this Court for leave to appeal against the asserted severity of the sentences thus passed upon him. His application was dealt with on 28 May of this year, and by a Bench of the Court constituted by Barr J and McInerney AJ. Mr. Hill was granted leave to appeal; his appeal was allowed; and the ten sentences, each of penal servitude for 5 years, which had been passed upon him in respect of breaking, entering and stealing offences were quashed, there being substituted in each such case a sentence of penal servitude for 4 years divided between a minimum term of 2 years and an additional term of 2 years.

9 The first submission put for the applicant was that the sentences passed upon him were, standing alone, manifestly excessive so as to warrant the intervention of this Court. The second submission put for the appellant was that, in any event, the effect of the orders made by this Court in connection with Mr. Hill's sentences entailed a need to reduce the applicant's sentences so as to give effect to a proper application of the relevant principles concerning parity in the sentencing of co-offenders.

10 The learned sentencing Judge dealt very briefly and as follows with the relevant objective facts: "The circumstances, in which the prisoners committed the offences, are not in dispute. Those circumstances are referred to in the statements of facts and the statements of the victims and need not be restated in full. Although they were well planned and deliberate offences, there was nothing special in their commission of the offences. As to the breaking entering and stealing offences, they broke into and entered the homes of their victims, which were then unoccupied, and they stole the occupant's property." [Remarks on Sentence at 4]

11 His Honour, doing the best he could upon the basis of sparse evidence, estimated at $30,000 the total value of property stolen by the applicant and his co-offender; and his Honour estimated at about $15,000 the value of that part of the stolen property which had been recovered.

12 That bare statement of the relevant objective facts needs to be supplemented by a reference to some material that became Exhibit EE in the proceedings before his Honour Judge Nield. Exhibit EE was a large collection of sheets of paper upon which the applicant had written, among other things, what might be shortly described as a shopping list of things that he wanted to acquire, with an accompanying hit-list of premises from which various of those desired items of property might be stolen. The applicant himself put the point as follows during the course of a lengthy, and electronically recorded, interview with the investigating police: "Q 291 --- and do you say that those were, you're saying you were planning rorts or planning break and enters on their homes.

A. Not exactly planning them, just having them down there with details as possibilities ---

A. --- of somewhere that we could do a break and enter."

13 In connection with the breaking, entering and stealing offences committed both by the applicant and by his co-offender, Judge Nield said this: "The breaking, entering and stealing offences are prevalent offences. They are relatively easy to commit and they are relatively difficult to identify the offender. They cause members of the community to feel afraid by the invasion of their home and privacy, and they result in the victims losing property, often of little but sentimental value. They impose considerable costs upon both the victims and insurance companies. They support corrupt people, who buy the stolen property knowing it to have been stolen. The community demands, as it is entitled to demand, that police protect its members against people who break into and enter its members' homes and steal property therefrom, and it expects, as it is entitled to expect, that the Courts will punish appropriately offenders who commit breaking, entering and stealing offences and receiving offences." [Remarks on Sentence at 5]

14 At pages 8 and 9 of his Honour's remarks on sentence, Judge Nield canvasses the subjective matters that had been put before his Honour in connection with the present case. His Honour notes the comparative youth of the applicant, who was 19 at the time he committed the relevant offences and not quite 20 at the time he stood for sentence. His Honour accepts that the applicant was, in the requisite legal sense, contrite; and that he was entitled to some proper consideration on account of his pleas of guilty. His Honour notes, correctly as the evidence stood, that the applicant had previously suffered from a drug-abuse problem; but that he had not committed the relevant offences at a time when he was a drug abuser. His Honour notes, and correctly on the evidence before him, that the applicant's own explanation for his offending conduct was that he had been, at the material times, in a difficult financial situation.

15 There was in evidence before his Honour, as Exhibit HH, a pre-sentence report that had been prepared on 22 June 1998 by a Probation and Parole Officer. The following excerpts from that report are of present relevance: "Factors Related to Offences

Before committing the offences the offender was employed by a Café at Lawson as a Kitchen Hand and had taken a days absence without permission to be at a fathers day family gathering. His services were terminated as a result and he states that he was then without any income and unable to obtain financial assistance for quite some time. The offender states that he had only sought to steal cash to provide desperately needed income required to cover his living expenses and to help support his girlfriend who was, he says, applying pressure upon him to meet his financial obligations.

The offender shows embarrassment at the shame he has brought upon himself and his family. He shows minimal appreciation of the effect of his crimes upon his victims but intimated that his criminal activities had since then ceased and would not recur. He was, however, quick to blame his co-offender as the instigator of their efforts to "rort" as many homes as possible and as the originator of their modus-operandi. He claims that had he not been in financial difficulty he would not have agreed to become involved in these "rorts" until he discovered "how easy it was".

This offender presents as being of at least average intelligence and he appears to have been under some stress at the time of the offences. He was acting out of complete disregard for the rights of his victims, although it is believed his own level of self-esteem was probably quite low at the time due to his personal circumstances. He shows a real sense of shame for his planned and deliberate offending behaviours and appears well motivated to avoid any such occurrences in the future. The offender is acutely aware of his position before the Court and is anticipating a full-time custodial sentence." [Appeal Book at 176]

16 Putting to one side for the moment the question of parity as between the applicant and his co-offender, I am wholly unpersuaded that the sentences passed upon the applicant were manifestly outside the range of a proper sentencing discretion. In my opinion, eight distinct offences of breaking, entering and stealing, each such offence having been carried out deliberately and separately over a period of about a month, cannot be thought sensibly to have been punished excessively by the imposition of a total effective sentence of penal servitude for 4 years, when each such distinct offence was liable to a statutory maximum penalty of penal servitude for 14 years. I am of that opinion notwithstanding the subjective matters put forward by the applicant to the sentencing Judge.

17 That conclusion, entailing as it does that I would reject the first of the two submissions advanced for the applicant, makes the fate of the present application wholly dependent upon the applicant's contention that he is entitled to have this Court reduce his effective sentence because the correct application of proper principles as to parity requires such a correction by this Court.

18 His Honour Judge Nield dealt as follows with the question of parity: "As to parity. I appreciate that, when two or more people commit the same offence or offences then, if all things are equal between them, each should suffer the same punishment. As to the prisoners, all is not equal between them, the differences being that the prisoner Hill has a criminal record, whereas the prisoner Ryan does not, and that the prisoner Hill committed the offences in breach of the recongizance into which he had entered on 6 November 1996, and he committed the offence of 30 January 1998 in breach of both the recognizance and the bail undertaking into which he had entered on 3 October 1997. This means that the prisoner Hill may receive a different punishment to that imposed upon the prisoner Ryan. Moreover, it means that specific deterrence is more relevant and important to the prisoner Hill than it is to the prisoner Ryan, although it is not to say that it is not relevant or important to the prisoner Ryan. Every sentence must have within it an element of deterrence both specific and general. Not only must a prisoner be made aware of the stupidity of re-offending, but others must be made aware, by the sentence imposed upon an offender, of what will happen in the event of acting as the prisoner has acted." [Remarks on Sentence at 9-10]

19 In my opinion His Honour was, with respect, correct both in law and in fact.

20 The Crown submissions put to this Court in connection with the present proceedings draw attention to two decisions of differently constituted Benches of this Court: Reg v Diamond: Hunt CJ at CL and James J, Smart J dissenting: unreported, 18 February 1993; and Reg v Steele: Sheller JA, Grove and Simpson JJ: unreported, 17 April 1997.

21 In Diamond, Hunt CJ at CL articulated the following propositions, which were adopted by the Court in Steele: "The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one…………………. In my opinion, that stage has well and truly been passed in the present case, and a reduction of the applicant's sentence…………. would ……….. be described as an affront to the proper administration of justice. The sentence imposed by ………(the relevant District Court judge) ……… was, as I have said, appropriate and not excessive. That imposed by the Magistrate was, as I have also said, irresponsible. The disparity between them may give rise to a sense of grievance on the part of the applicant, but it was not a justifiable one."

22 I have come, however, albeit with the greatest reluctance, to the conclusion that the present matter cannot be disposed of properly by giving simple effect to those observations.

23 The reasoning of the Bench which upheld the co-offender's appeal turns upon propositions stated as follows in the judgment delivered by Barr J, with whom McInerney AJ simply agreed: "4. The first ground of appeal is that the sentence is manifestly excessive by comparison with sentencing statistics compiled by the Judicial Commission. Of 133 accused who pleaded guilty to multiple offences of breaking, entering and stealing, between 1994 and 1998, only twenty-four received sentences of five years or more. Twenty accused of age twenty-one or younger were sentenced for multiple counts and only two of them received terms of five years or more. However, it appears from material tendered by the Crown that those offenders all or almost all pleaded guilty. It was submitted that since the applicant was only eighteen years and seven months of age at the time of ten of the eleven offences, the sentences imposed showed that his Honour gave insufficient weight to his youth. It was put that the primary aim in sentencing young offenders is the promotion of rehabilitation

6. The offences in combination were very serious and his Honour was bound to impose a substantial sentence. Although the applicant was a young man, he was not a child or a young person who might have relied particularly heavily on the principles set forth in the cases I have cited. Although he was an adult, he was still young, however, and was not yet of an age, even taking into account his modest criminal experience, that denied him the benefit of those principles.

9. However, even taking into account the combined seriousness of the offences, it seems to me in view of the age of the applicant and the quite remarkable evidence that he had already begun the process of rehabilitation, sentences so close to the upper limit of the range were inappropriate, for that is where these sentences lie when compared with the statistical information put before the Court.

10. …………………………………………………………………… …………………………………………………………………………… ……………By the time the applicant came before his Honour, he had had the very good fortune to have been adopted, using that term in a loose and practical sense, by a responsible family and to have forsworn, apparently successfully, the use of alcohol altogether. As I said earlier in this judgment, he got himself a job, he began a technical college course. The pattern of his life was in stark contrast to the pattern which had obtained at the time of the commission of the offences.

11. It seems to me that those circumstances, combined with the applicant's age, needed to be given very great weight, and the length of the total sentence of five years suggests to me that his Honour gave those features insufficient weight." [(1999) NSWCCA 140]

24 The application of this reasoning to the facts of Mr. Hill's case brought about, as earlier noted, a reduction in Mr. Hill's sentence. That is a fact which this Court cannot simply ignore in its own approach to the particular case of the present applicant. I think that it is inescapable that the proper application to the applicant's case of the principle of parity in sentencing must entail some reduction in the applicant's sentence.

25 It remains only to consider the extent to which this Court should now intervene in the applicant's favour. I would say at once that, in my opinion, there is absolutely no justification for approaching that matter upon the basis of a simple reduction of 20 per cent in the applicant's sentence, that having been the percentage of the reduction made to the co-offender's sentence. Even considerations of parity in sentencing can only be taken so far.

26 In my opinion, justice would be done to the applicant if his effective aggregate sentence of 4 years was reduced to 3 years and 6 months, divided between a minimum term of 1 year and 6 months and an additional term of 2 years. Such an apportionment would require the finding of "special circumstances" as contemplated by s.5(2) of the Sentencing Act. Like his Honour Judge Nield, I would find such circumstances in the age of the applicant and in his prospects of successful rehabilitation. 27 The process of reasoning which I have thus far exposed is, in my opinion, sustainable on the law as unaffected by the guidelines that are stated in the Court's guideline judgment delivered this morning. Were those guidelines to be applied to the applicant's case, then the first of the applicant's submissions would be even more decisively rejected; but the applicant's parity point, given the judgment on appeal in his co-offender's case, would still have to be upheld. 28 It should be said, in my opinion, that it is unfortunate that the appeals of Mr. Hill and of the present applicant were listed separately and before differently constituted Benches of this Court. This Court has repeatedly said that the sentencing of co-offenders at first instance should be done, if at all possible, by one Judge. It is, in my opinion, equally desirable that the hearing by this Court of appeals by co-offenders against the asserted severity of their respective sentences should be carried out in the case of each such appeal by the same Bench of the Court.

29 In my opinion, therefore, the Court should order: 1) that the applicant be granted leave to appeal against the sentences imposed upon him in the District Court;

2. that the appeal against such sentences be allowed and the sentences quashed;

3. that for each contravention of s.188 of the Crimes Act 1900 , the applicant be sentenced to penal servitude for a fixed term of 1 year and 6 months, to commence on 11 August 1998 and to expire on 10 February 2000; and that in respect of each contravention of s.112(1) of the Crimes Act 1900 , the applicant be sentenced to penal servitude for 3 years and 6 months, divided between a minimum term of 1 year and 6 months to commence on 11 August 1998 and to expire on 10 February 2000, and an additional term of 2 years to commence on 11 February 2000, and to expire on 10 February 2002. **********

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