Ryan v R

CATCHWORDS: CRIMINAL LAW - appeal against sentence - sentence manifestly excessive - application of guideline judgment - subjective circumstances

R v Henry and Others [1999] NSWCCA 111 CASES CITED : R v Todorovic [2008] NSWCCA 49 R v Rushby [1977] 1 NSWLR 594

PARTIES: Stephen Walter James Ryan Regina

COUNSEL: J Manuell (Applicant) D Arnott SC (Crown)

SOLICITORS: Aboriginal Legal Services (Applicant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007 / 5107

McCLELLAN CJ at CL BARR J PRICE J

FRIDAY 29 AUGUST 2008 Stephen Walter James RYAN v REGINA Judgment 1 McCLELLAN J: I agree with Barr J. 2 BARR J: Stephen Walter James Ryan seeks leave to appeal against a sentence imposed in the District Court. For an armed robbery committed on 19 March 2007 the applicant was sentenced to 3 years' imprisonment with a non-parole period of 15 months dating from 2 November 2007. The charge was laid under s97(1) Crimes Act.

3 On the afternoon of 19 March 2007, the applicant, aged 18, had been drinking alone. Shortly after 7.30pm the applicant entered the Bogas Service Station in Windsor Parade, Dubbo where Charles Rogers was working as the console operator. The applicant was armed with a knife. While Mr Rogers was bending down at a cupboard, the applicant grabbed Mr Rogers' shirt, forcing him to stand up. The applicant pointed the knife at Mr Rogers and asked for money. Mr Rogers and the applicant went into the locked console, where Mr Rogers opened the cash register and placed cash into a plastic bag. He gave the applicant the plastic bag and two packets of cigarettes. As the applicant left the console area he cut the telephone cord and told Mr Rogers not to call the police.

4 The entire incident was captured on closed circuit television and the footage was later shown on local television. There was no response by the public. Three days later, on 22 March 2007, the applicant, together with his parents, attended the Dubbo police station. He participated in an ERISP and made full admissions to the armed robbery. He also gave the police the plastic bag which contained most, if not all, of the money stolen from the service station.

5 The applicant entered a plea of guilty in Dubbo Local Court on 8 June 2007 and maintained his plea in the District Court. He stood for sentence before Woods ADCJ on 31 October, 1 and 2 November 2007.

6 The sentencing judge had before him affidavits sworn by the applicant, his mother, Teena Bonham and his father, Stephen Ryan senior. Annexed to the applicant's affidavit was a work reference from the Dubbo Aboriginal Lands Councils, stating that the applicant had commenced maintenance work there in April 2007 and was a punctual and keen worker.

7 Ms Bonham stated that the applicant was deeply affected by the death of his cousin, Lana Ryan, in March 2005. Lana had lived with the applicant's family "on and off" throughout her life, and the applicant regarded her as his older sister. Lana committed suicide while in the Bathurst Correctional Centre and Ms Bonham was of the view that her death affected the applicant "like nothing else." Ms Bonham stated that the applicant began drinking heavily after Lana's death and "in hindsight I feel that we did not assist [the applicant] with his grieving."

8 At the time of Lana's death, the applicant was 16 years old. After her death, he did not return to school and eventually left home at the age of 17 to work on the gas line being constructed between Coolah and Tamworth. He lived in a labourers' camp for 6 months and immersed himself in the drinking culture there. After returning to Dubbo, the applicant commenced working on the Community Development Employment Project and was later offered a carpentry apprenticeship with a building company. However, he continued to drink alcohol excessively and ceased work with the company around Christmas 2006. His family sent him to stay at an uncle's home to dry out. He was then voluntarily admitted to "The Glen" rehabilitation centre. However, on 18 March 2007, the day before the offence, he was discharged from that program for using a mobile telephone to call his mother.

9 Mr Ryan senior gave evidence that he had had difficulties himself with substance abuse but had successfully addressed these and was now a respected member of the local aboriginal community in Dubbo. Mr Ryan gave evidence of the changes in the applicant since the offence: "I think he's been educated a bit since the incident. He's said to us that he's got to deal with the grief and loss issues which are making him - which help make him a substance abuser… He's tried to - well, as far as I know he's maintained zero tolerance with substances."

10 A psychological report prepared by Saskia Cowles-Low was also tendered. The history obtained indicates that the applicant was admitted to Orana Haven rehabilitation centre after the offence but was discharged because he drank alcohol following the death of an aunt. In a letter from Orana Haven, it appeared that two older inmates had "influenced" the applicant's behaviour. Ms Cowles-Low concluded that the applicant was a person of low average intelligence who has a "limited repertoire of coping skills." She was of the view that the applicant was suffering from a moderate major depressive disorder, alcohol dependences and substance dependence. She said "The depression is likely a reactive depression in relation to his cousin's death. It is also a complex grief reaction compounded by his sense of guilt and self-blame." Ms Cowles-Low was of the opinion that, in order to reduce his risk of re-offending, the applicant could be treated within the community by ongoing attendance at substance support groups, medical review of his depression and psychological counselling. Ms Cowles-Low also concluded that a custodial sentence would be particularly harmful since the applicant's cousin had died in custody.

11 The sentencing judge also had available to him two pre-sentence reports. The report of 19 July 2007 stated that the applicant was suitable for medium/high level supervision and that the Probation and Parole Service would direct him to attend loss and grief counselling and drug and alcohol relapse prevention and counselling. This recommendation was confirmed in the report of 17 September 2007. The applicant was assessed as being unsuitable for either a Community Service Order, because he had not remained in the community for 3 months drug and alcohol free at the time of writing the report, or periodic detention because the nearest centre in Bathurst is about 200 kilometres away from Dubbo.

12 There are two grounds of appeal. They may be considered together. The first asserts that his Honour erred in two respects of his consideration of the guideline judgment in R v Henry and Others [1999] NSWCCA 111. The second asserts that the sentence is manifestly excessive. 13 It was first submitted that his Honour erred in the assessment of the general range of s97(1) sentences given by this Court. It was submitted that his Honour had misled himself by considering a period of three to five years as being the non-parole period, producing a notional starting point of eight years, that with be compared to the guideline in Henry of a four to five year head sentence. 14 Secondly, it was submitted that his Honour erred by not giving full consideration to the subjective circumstances of the offence or that the offender's behaviour was due to the effects of his alcohol and substance addiction. The complaint was that his Honour focused on intoxication at the time of the offence rather than giving consideration to "the applicant's underlying impaired judgment". Reference was made to the judgment of Wood CJ at CL in Henry. In R v Todorovic [2008] NSWCCA 49 Hulme J stated at 58 - …there would be cases where the general rule would not apply, for example where the addiction was the result of youth or medical treatment over which the offender had no relevant control. 15 It was submitted that his Honour did not give enough weight to these factors - i. that the applicant developed an addiction to alcohol at the age of 17 years when he was living in labourers' camp and isolated from his family, shortly after the suicide of his cousin; ii. that following his commission of the offence, the applicant was diagnosed as suffering from an untreated moderate major depressive disorder arising from his cousin's death; and iii. that the applicant was assessed as having an information processing speed in the bottom 5th percentile of the community, so his ability to think ahead and consider consequences is limited. 16 It was submitted under the second ground of appeal that the offender should have been given a suspended sentence. Three arguments were made, first that his Honour erred in the assessment of the objective seriousness of the offence, secondly that his Honour failed to give sufficient weight to the voluntary disclosure of the offence by the applicant and thirdly that the erroneous interpretation of Henry resulted in his Honour unduly fettering his discretion.

17 Attention was drawn to the applicant's youth, his major depressive disorder, his alcohol dependence, hist attempts at rehabilitation and to positive changes in his outlook and behaviour.

18 In relation to the applicant's voluntary disclosure, the applicant relied upon the prosecutor's submissions at sentence that it was quite probable that police would have been unable to identify the offender save for his voluntary disclosure. Further, the fact that the applicant did not have a criminal record; that he had left Dubbo following the offence requiring him to travel back there to attend the police station; his immediate admission; and the return of the stolen money were matters that should have been given greater weight.

19 In relation to the third argument, the applicant relied upon the JIRS statistics. Of the 159 offenders sentenced between October 2002 and September 2007, who like the applicant were aged between 18-20 years, pleaded guilty and had no prior convictions, 45% received sentences other than full-time imprisonment. 30% received suspended sentences, with or without supervision. It followed that there was no requirement for the circumstances to be "truly exceptional" or even "exceptional" to warrant a sentence other than one of full-time imprisonment. 20 It seems to me that the words spoken by his Honour and now complained of must be considered in context. Having reviewed the facts, his Honour referred to R v Henry and said (AB 11) - …it does refer to a tariff range of between three and five years actual custody… 21 Later his Honour said (AB 15) - Normally in such robberies of service stations I would have to be considering a starting point of around eight years… 22 Still later his Honour said (AB 15) - So even considering a starting point could be in the upper bracket of penalties I will determine a starting point of five years and find that after giving allowance for the surrender to the police and return of the stolen money and the plea of guilty I would come to a head sentence of three years, which then after allowing for special circumstances I would reduce to a non-parole period of fifteen months. 23 The words attributed to his Honour at AB 11 appear erroneous. In R v Henry this Court was concerned with full terms, not non-parole periods. Whether his Honour would have been justified in "normally" working from a notional starting point of eight years for a head sentence does not really arise for consideration here, because, as the passage last extracted shows, his Honour did not do so in the present case. It appears to me that his Honour began with a notional starting point of five years' full term, a figure within the range spoken of in R v Henry, and reduced both the head sentence and the non-parole period to allow for the favourable features of the case. I do not think that his Honour misled himself. 24 The submission that his Honour did not give full weight to the subjective circumstances of the offence and gave "little consideration" to the applicant's underlying impaired judgment is a conclusion that could be contended for or arrived at only from the resulting sentence. What is clear is that his Honour was alive to these matters. He dealt with the two pre-sentence reports and the reports of those persons close to the applicant, as well with the psychological opinion of Ms Cowles-Low. It was apparent to his Honour that the applicant had been assessed as unsuitable for a Community Services Order or a Periodic Detention Order. His Honour dealt in detail with the applicant's motivation, his substance abuse, his depression following upon the death of a near relative, his need for assistance and his prospects of rehabilitation. The sentence imposed - a non-parole period of one year and three months followed by a period of eligibility for parole of one year and nine months - is remarkably low for an offence of this kind, a hold-up by the use of a knife of a defenceless and vulnerable person at night. Such a sentence could be justified only by full and proper allowance for the important features I have mentioned. 25 The applicant was able to mount an impressive subjective case. There were his voluntary confession and restitution and the consequent plea of guilty, made early and maintained. But a subjective case, however strong, cannot be seen in isolation: R v Rushby [1977] 1 NSWLR 594. His Honour had to consider the strong subjective case against the objective seriousness of the offence, with the danger from the knife occasioned to Mr Rogers, the distress deliberately caused to him and its serious effect upon him. Unfortunately he found himself unable to return to his occupation. 26 It does not seem to me that a proper weighing of these competing features was bound to produce a sentence less than that imposed by his Honour. 27 It was submitted that statistics published by the Judicial Commission of New South Wales showed that between October 2002 and September 2007 16% of persons who had offended under s97(1) received sentences of less than full time imprisonment. It followed, it was submitted, that the trial judge had a discretion to impose a sentence upon the applicant of less than full time custody. 28 That may be so, but the question for this Court is not whether his Honour could have imposed such a sentence but whether his Honour was bound to do so, whether the sentence imposed was outside the proper range of sentencing discretion. In my opinion that has not been demonstrated. 29 I would grant leave to appeal but would dismiss the appeal. 30 PRICE J: I agree with Barr J. **********

02/09/2008 - Incorrect reference to an Act. Criminal Appeal Act replaced with Crimes Act. - Paragraph(s) 1

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.