R v Ryan [2020] NSWDC 406

District Court New South Wales

Medium Neutral Citation: R v Ryan [2020] NSWDC 406 Hearing dates: 3 June 2020 Decision date: 03 June 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 1 year 6 months. Non parole period of 9 months. Catchwords: CRIME: Hinder apprehension – offence of short duration. SENTENCE - Relevant factors on sentence - loyalty to a mate - on parole – early guilty plea - institutionalised offender. Legislation Cited: Crimes Act 1900 Crimes (Sentence Administration) Act 1999 Cases Cited: Callaghan v R [2006] NSWCA 58 Sampson v R [2014] NSWCCA 19 Category: Sentence Parties: Matthew James Ryan (the offender) Director of Public Prosecutions Representation: Counsel: Mr T Anderson (for the offender) Mr D Scully, Deputy Senior Crown Prosecutor

Solicitors: Blair Criminal Lawyers (for the offender) Director of Public Prosecutions File Number(s): 2019/00170047

SENTENCE – ex tempore revised 1. Matthew James Ryan is for sentence today for a serious offence; hinder the apprehension of a person who committed a serious indictable offence. It carries a maximum penalty of seven years imprisonment: s 315(1)(c) Crimes Act 1900. 2. He committed this offence out of loyalty to a friend. He thought loyalty was more important than obeying the law; the law that binds us together as a community. He committed the offence in breach of promises he made in order to secure his release to parole. Promises to be of good behaviour and not commit further criminal offences. Promises made to; the State Parole Authority, me as a sentencing judge, his family and I suspect himself. 3. He has been in custody in relation to this offence since 30 May 2019. He served the balance of parole of a sentence I imposed on him until February of this year. He is still in custody. 4. He entered a plea of guilty in the Local Court. The utilitarian value of that plea requires the otherwise appropriate sentence I fix be reduced by 25%. The plea of guilty is also a practical expression of remorse, contrition and/or acceptance of responsibility. It is hard in all the circumstances to determine into exactly what category it falls. 5. Any sentencing exercise must start with the facts of what occurred. There are agreed facts before the Court. The agreed facts in relation to the element of the offence "person who committed a serious indictable offence" relate to allegations against a man, Butler, who is still before the courts and as I understand will be pleading not guilty to the charge, as presently preferred. 6. In the early hours of Saturday 18 May 2019 Daniel Merrett died in a serious and significant motor vehicle accident when the car in which he was a passenger collided with a petrol tanker. The circumstances leading up to the collision involve allegations that the car was being chased by a vehicle driven by Butler. Butler did not stop following the collision that resulted in Mr Merrett's tragic death. Rather, it is alleged he fled the scene. 7. At the time of the collision Ryan was in custody serving part of the balance of parole of the sentence I imposed upon him. 8. On 22 May 2019 he spoke with his mother on the telephone. She told him that Butler and two co-offenders were wanted by police for manslaughter and were on the run. 9. Ryan was released on 24 May 2019. At about 6.30am on 30 May 2019 Ryan driving a white Nissan utility picked up Butler from Warilla. He then allowed Butler to drive that vehicle. He allowed Butler to drive that vehicle knowing that Butler was wanted by police and knowing that Butler was avoiding arrest. At the time he allowed Butler to drive his vehicle there were no obvious signs that Butler was being pursued by police. 10. Ryan also allowed Butler to use his telephone to make arrangements for Butler to meet another person. Those arrangements were made. As police had access to the calls they assisted in the police apprehending Butler. 11. At 10.15am police saw Butler driving the offender's vehicle onto the Princes Highway heading south. PolAir were alerted. Police coming northbound tried to intercept him but Butler made a sudden right turn accelerating heavily. a police pursuit took place. That police pursuit involved Butler driving the offender's vehicle between 50 to 100 kilometres per hour in a 50 kilometre signposted area. 12. Butler was able to avoid police cars for a short time before mounting a kerb. Butler, the offender and another person in the car were apprehended and placed under arrest. 13. The offender told police on his arrest; that he had known Butler since they were about 12, that he knew Butler was in trouble and he knew how "big" the charges were. He said that he had fallen asleep in the vehicle and says that he slept through the pursuit. That story on its face would be hard to accept. but Ryan also told his psychiatrist, and given his history I am prepared to accept, that he was affected by a number of illicit or prescription drugs at the time, and that history supports that explanation. 14. Ryan said he let Butler drive his vehicle because they were friends and he would "let him drive his vehicle any time of the week, even if he was not on the run." He accepted that it was not the best thing to do, to associate with someone on the run. But he told police loyalties are about more than that. 15. I am assisted in this matter by both written and oral submissions from Mr Anderson, who appears for the offender and Mr Scully, Deputy Senior Crown Prosecutor. I will take into account what each of them have said. Their primary issue of dispute is about the objective seriousness of the particular offence. Mr Anderson submits that it falls at the very bottom of the range. Mr Scully, while accepting that it is not in the middle of the range, says there are a number of features relating to the offence which mark it out as one of some seriousness. 16. The offence for sentence involves the need to punish someone who does anything, intending in any way to hinder the apprehension of another person who has committed a serious indictable offence. (My emphasis.) Butler was suspected, on reasonable grounds, to have committed the serious indictable offence involving the death of one person and serious injury to another. Ryan knew this. By providing Butler with his car and letting him drive it he did hinder police. The period was only relatively brief and it is accepted that when the car was initially given to Butler to drive he was not then being actively pursued. 17. As the Crown point out to provide transport and a telephone could be the key to someone on the run staying at large. Here, fortuitously it appears that the phone may have alerted the police to Butler's presence. 18. Ryan acted with knowledge; he chose to pick Butler up. His motivation cannot and does not excuse the offence. That he may have been, in all probability was, drug affected cannot not excuse the offence. The fact that the crime he committed was connected with the investigation of an alleged homicide is a marker of the significant seriousness: Sampson v R [2014] NSWCCA 19. 19. On the other hand, the police were not at all hindered in their investigation of the allegations against Butler by anything Ryan did. It is his apprehension which was impeded because Butler was allowed to use the vehicle. It is unlikely the vehicle was being used to enable Butler to escape the jurisdiction. 20. Mr Anderson's point is that there was no active participation in the police pursuit by the offender. He was just in "the wrong place at the wrong time." 21. Mr Crown's point is that by providing any escapee with a vehicle in such circumstances created the real possibility of what, in fact, occurred here: that the vehicle would be used to avoid apprehension with the consequent enhanced risks the pursuit of the vehicle would occasion to others in the community. 22. It is that point, which I accept, that brings this matter above the very bottom, of the range so far as objective seriousness is concerned. But to be clear in accepting that submission I note that Ryan is not being punished for the police pursuit. 23. Principles of general deterrence are important when it comes to assess the sentence for matters such as this. It is important that the community understand and appreciate the seriousness of this type of offence. To be clear it must be understood that unlike the attitude displayed by Ryan; friend or not, if you know someone has been involved in the commission of a serious crime and is wanted by police the law will punish you if you do anything intending to hinder the police, including hinder the wanted person's apprehension. 24. Although Ryan has a number of significant problems, including mental illness and associated cognitive disabilities, he is also a rational person who is able to make rational decisions. He needs to know and understand how serious helping a mate can be in such circumstances. If he hasn't learnt that lesson by the additional period in custody he has spent, he never will. Because of his loyalty to a friend it has meant that his loyalty to his mother, his father, his family and his daughter, who he professes to be the most important things in his life, were put to the side - just to help a mate. Well, he has to think carefully about where his loyalties lie in the future. He chose his mate, who may have committed a serious crime, over his family. I think he is astute and smart enough to realise the wrong decision was made. 25. I have to take into account his criminal record. He has been before the Children's Court and he first went to gaol in 2011. He has been in gaol for almost all of the last decade. He was sentenced by me in 2017. When I sentenced him I noted that; he had a number of significant mental health issues, his need for rehabilitation and his high risk of his institutionalisation. He was due for release to parole on 15 August 2018. He was in fact paroled a month later, but he was re-arrested within a month. He was re‑paroled on 24 May 2018, applying the "manifest injustice" provisions in s 137B Crimes (Sentence Administration) Act 1999 and reg 23 of the associated regulations. 26. He had spent longer in custody than I had intended, but he was the maker of his own fate. I have no information as to what the manifest injustice was, but he failed to take advantage of his release. It would appear from all the material before me that no structured programs were put in place other than appointments with the State Parole Authority; one of which he kept and the others he was unable to keep because of his arrest for this matter. 27. I will, as I must, increase the appropriate sentence because it was committed in breach of parole and in breach of the promises I have referred to. I do not believe he should lose the entire balance of parole as I have taken into account it is a circumstance of aggravation of sentence. Such matters should not be double counted. 28. I propose to start the sentence four months after he returned to custody. The commencement date is 13 September 2019. On this point I have considered as, noting matters referred to in the parties written submissions and Callaghan v R [2006] NSWCA 58.