Ryan v R

Court of Criminal Appeal (NSW)|2009-06-23|Before: Spigelman CJ, Johnson J, Mr AJ, Clellan CJ

The Applicant's Subjective Features 14 The Applicant was 34 years old at the time of the offences and thirty-five at the time of sentence. She has a lengthy criminal history, including offences of supply and possess prohibited drugs, assault, stealing, obtaining money by deception, possessing a prohibited weapon and ammunition and other matters. She has served a number of prison sentences, the longest being a sentence of imprisonment for three years with an 18 month non-parole period imposed in 2002 for an earlier offence of supplying a prohibited drug. 15 The Applicant gave evidence in the sentencing proceedings and a pre sentence report was tendered, together with a psychological report by Mr John Taylor dated 22 March 2008. The pre-sentence report confirmed that overall, there had been a poor response by the Applicant to past supervision as intervention had produced limited results. However, the pre-sentence report recorded that the Applicant had developed considerable insight into her addiction since her incarceration in 2007, and had demonstrated a capacity to learn and respond well to counselling. She had enrolled in the Self Management and Recovery Training Program (the SMART Program). Mr Taylor expressed the opinion that the Applicant had a moderate risk of recidivism.

Grounds of Appeal 16 Mr Bellanto QC, for the Applicant, relies upon three overlapping grounds of appeal:

(a) Ground 1 - the learned sentencing Judge erred by failing to take into account and apply the principle of mercy, otherwise known as the crossroads principle, in sentencing the Applicant.

(b) Ground 2 - the sentencing Judge erred by taking into account matters that were not in evidence before him, in assessing the Applicant's prospects of rehabilitation.

(c) Ground 3 - the sentencing Judge erred by failing to give proper weight to the Applicant's remorse and contrition. 17 To place these grounds in context, it is appropriate to refer to certain observations and findings in the remarks on sentence. After setting out parts of the pre-sentence report and the report of Mr Taylor, his Honour referred to the Applicant's evidence and said (ROS11-13): "The overall impression I have gained is that the offender is very reluctant to take any real responsibility for the gravity of the supply charge in particular. In cross-examination she maintained that the main motivation in engaging in the sale of drugs was to support her own habit. She said that she did not live an extravagant lifestyle and was in fact collecting social security benefits during the course of her dealing. She confirmed that the goods found during the course of the search of her storage facility were supplied to her in exchange for drugs. In general, I find it difficult to accept some parts of the offender's evidence. In my view she did tend to minimise at least the extent of her dealing. The reality is that the facts disclose that the extent of her dealing was far more than would have been possibly required to support her own drug habit but I do not think that I need to say any more about that. However, I am prepared to accept, and it seems to be supported by the evidence including her criminal history, that she was a person who for some time now has been subject to a drug addiction. Further, I think on balance that the offender does have some resolve to deal with that problem. She seems to have taken steps in this regard since she has been in custody and I take into account the course that she has been completing and the fact that she has not committed any institutional offences and is working within the prison system. I am also satisfied that she has the support of her family which will no doubt be of assistance to her if she maintains her resolve upon her release from custody to continue to deal with her drug problems. Having said this, of course, it would be fanciful to think that she did not make the same promises when she was dealt with in this court in Sydney for the similar offence to which I have referred which no doubt in part led to the finding of special circumstances on that occasion. Further, it is clear that the sentence imposed on that occasion did not provide sufficient personal deterrence to prevent her from not only re-engaging in the supply of drugs, but doing so at a commercial level." His Honour's mention of the earlier occasion when the Applicant had been sentenced for a similar offence was clearly a reference back to the 2002 sentence for supplying drugs. 18 After referring to the submissions of counsel, his Honour said, relevantly to the present application (ROS14-15): "… I think that the offender has some prospects for rehabilitation. As to whether they will ultimately bear fruit, only time will tell, but, as I said, on balance I think that she presently has a resolve to deal with her drug problems. I accept that she is remorseful to some extent and that she has accepted responsibility for her actions, but with some reservations. As I said earlier, I am of the view that she is reluctant to take full responsibility for the serious nature of the supply offence." 19 His Honour found special circumstances (ROS15): "I am prepared to make a finding of special circumstances. This is based on the fact that I do accept on balance that the offender currently has some resolve to deal with her drug problems."

Submissions on Application 20 On behalf of the Applicant, it was submitted that the evidence before the District Court, and in particular the pre-sentence report and the report of Mr Taylor, provided a foundation for the learned sentencing Judge to apply the principle in R v Osenkowski (1982) 5 A Crim R 594, which he referred to as the principle of mercy, or the crossroads principle. Reference was made to decisions of this Court and other courts where this principle has been applied, including R v Micallef (1990) 50 A Crim R 465 at 467 and R v Lenthall [2004] NSWCCA 248. 21 Mr Bellanto QC submitted that the evidence before the District Court demonstrated that the Applicant had reached a point in her life where she was ready to turn the corner and address her offending and drug issues, and that there was no evidence to the contrary placed before the sentencing Judge on this topic. In these circumstances, it was submitted that the Court should have fixed a significantly longer period on parole to allow the Applicant an opportunity to reform at this point in her life. 22 Complaint is made in Ground 2 concerning comments by the sentencing Judge with respect to the Applicant's prospects of rehabilitation. I have mentioned these earlier (at [17]). They involve the specific observation by his Honour that "it would be fanciful to think that she did not make the same promises" when she was dealt with on an earlier occasion for drug supply. Senior Counsel for the Applicant submitted that this observation was not open to the sentencing Judge, as his Honour did not have before him the material relating to sentencing of the Applicant on that previous occasion. It was submitted that there was ample evidence before the District Court on this occasion that would allow a favourable finding concerning the Applicant's prospects of rehabilitation, including the evidence of the Applicant, the pre-sentence report and the psychological report. 23 The Crown submitted that the sentencing Judge in this case did not form the view that the Applicant was at the crossroads. Taking into account the seriousness of the offences, his Honour did not extend mercy to the degree that the Applicant sought. It was submitted that error had not been demonstrated in this respect, and that it was significant that the sentencing Judge had the opportunity to observe the Applicant giving evidence. 24 With respect to the impugned comment which is the subject of Ground 2, the Crown submitted that this comment reflected his Honour's experience of the reality of sentencing proceedings, where often an offender, in an attempt to gain a lesser sentence, will seek to demonstrate contrition and rehabilitation prospects. The Crown pointed to evidence in the District Court before his Honour which supported this observation. The Applicant had acknowledged under cross-examination (T7-8, 22 August 2008) that she had, on an earlier occasion, indicated to the Probation and Parole Service an intent to maintain a drug free lifestyle but that she had reverted to her old ways of drug use thereafter.

Determination of Application 25 This Court is bound by findings of fact of the sentencing Judge, unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King (1936) 55 CLR 499 at 504: R v Merritt (2004) 59 NSWLR 557 at 573 [61]. 26 Having considered the evidence, including that of the Applicant, the sentencing Judge made findings concerning the Applicant's remorse, level of insight and prospects of rehabilitation. Those findings were understandably guarded, given the Applicant's criminal history and recent level of protracted serious offending. 27 In approaching each of the grounds of appeal, it is appropriate to bear in mind the observations of Spigelman CJ in R v Hunt [2002] NSWCCA 482 at [29]-[30] where his Honour observed that a level of scepticism, sometimes described as "wishful thinking" or "the triumph of hope over experience", is appropriate where an offender claims to have changed his or her ways against a long history of criminal offending. Claims of this type are often made in circumstances where there have been past opportunities extended to the offender to reform which have not borne fruit. 28 In R v Govinden (1999) 106 A Crim R 314 at 319 [35], Dunford J (Greg James J and Smart AJ agreeing) said: "Sentencing judges must be vigilant to ensure that they do not accept uncritically at face value all submissions to the effect that the person standing for sentence is 'at the crossroads', 'has seen the error of his ways, is at the turning point in his life', or 'has excellent prospects of rehabilitation'. Often such submissions have no justification in fact and are based on no more than wishful thinking, but there are exceptional cases where such submissions do have validity and the court should be astute to recognise them."

29 In my view, considerations of this type operate strongly against the Applicant on the present application. His Honour's observations about what may have been said on an earlier sentencing occasion (Ground 2), may be regarded as a reasonable reflection of the level of scepticism which is required when a claim of this type is made. 30 His Honour's findings concerning the Applicant's remorse, insight and prospects of rehabilitation, were both open and appropriate. Indeed, a more favourable finding and sentence, by reference to the crossroads principle, would have been, in the circumstances of this case, unduly lenient. 31 The Applicant stood to be sentenced for serious offences, including, on the drug supply count, the taking into account of a substantial number and variety of other offences for which it was necessary to reflect the need for personal deterrence and retribution arising from the additional criminality included in the Form 1 offences: Attorney General's Application Under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 at 159 [42]-[43]. 32 A substantial period of imprisonment was imposed in this case, but that reflected the objectively serious crimes for which the Applicant stood to be sentenced. Issues of personal and general deterrence were of significance, as well as the protection of the community and the need for punishment. A finding of special circumstances was made in the Applicant's favour so as to vary the non-parole period to 63 per cent of the total sentence. This reflected his Honour's acceptance that the Applicant had "some resolve to deal with her drug problems". This approach was open to the sentencing Judge and was appropriate in all the circumstances of the case. 33 To the extent that some of the Applicant's submissions assert that insufficient weight was given to one factor, or that proper or appropriate weight had not been given to another factor, it is timely to refer to the observation of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11] to the effect that "questions of weight in the exercise of a discretion are matters for the first instance judge" and that "the circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined". 34 In the circumstances of this case, I am satisfied that no error has been demonstrated on the part of the sentencing Judge. The sentences which were imposed upon the Applicant were both open and appropriate, having regard to the serious level of criminality involved. There was a finding leading to a variation of the percentage relationship between the non-parole period and the balance of term, being a finding made in the Applicant's favour, which, in my view, was open and reasonable and reflected his Honour's acceptance that there was some resolve on the part of the Applicant to deal with her drug problem. 35 The Applicant has not demonstrated error, either patent or latent, on the part of the sentencing Judge. None of the grounds of appeal have, in my view, been made good. 36 I would grant leave to appeal against sentence but the appeal ought be dismissed. 37 SPIGELMAN CJ: I agree and would only add one observation with respect to Ground 2. His Honour's statement to the effect that it would be fanciful to think that she did not make the same promises when earlier dealt with does have some support in the evidence. 38 During the course of her cross-examination, she was asked about the offence and the conviction in November 2002 and was specifically asked whether she had indicated to the Probation and Parole Service that she was going to maintain a drug free lifestyle then, to which she answered, "For a long time I did". That is a basis for an implicit acceptance, although it is not explicit, that she did make that statement at the time. That is a further reason for supporting his Honour's observation and rejecting Ground 2. 39 McCLELLAN CJ at CL: I agree with Johnson J and the additional remarks of the Chief Justice. 40 SPIGELMAN CJ: The orders of the Court are that leave to appeal is granted but the appeal is dismissed. **********

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CITATION: Ryan v R [2009] NSWCCA 183

R v Osenkowski (1982) 5 A Crim R 594 R v Micallef (1990) 50 A Crim R 465 R v Lenthall [2004] NSWCCA 248 House v The King (1936) 55 CLR 499 CASES CITED : R v Merritt (2004) 59 NSWLR 557 R v Hunt [2002] NSWCCA 482 R v Govinden (1999) 106 A Crim R 314 R v Baker [2000] NSWCCA 85 Attorney General's Application Under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146

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