R v Ryan [2000] NSWCCA 98

New South Wales Court of Criminal Appeal

CITATION : R v Ryan [2000] NSWCCA 98 FILE NUMBER(S) : CCA 60277/99 HEARING DATE(S) : 22/03/00 JUDGMENT DATE : 22 March 2000

PARTIES : Regina v Keith Wayne Ryan JUDGMENT OF : Abadee J; James J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0511 LOWER COURT JUDICIAL Williams DCJ OFFICER :

COUNSEL : CB Craigie - Applicant M Grogan - Crown SOLICITORS : TA Murphy - Applicant SE O'Connor - Crown

DECISION : Leave to appeal granted - appeal dismissed

IN THE COURT OF CRIMINAL APPEAL No 60277/99 ABADEE J JAMES J

Wednesday 22 March 2000 REGINA -V- KEITH WAYNE RYAN JUDGMENT

1 JAMES J: Keith Wayne Ryan has applied for leave to appeal against sentences imposed on him in the District Court on 13 May 1999 by his Honour Judge Williams, after he had pleaded guilty to two charges of robbery whilst armed with an offensive weapon, being offences under s 97(1) of the Crimes Act, for which the maximum sentence is penal servitude for twenty years. In sentencing the applicant Judge Williams took into account, pursuant to s 21 of the Criminal Procedure Act, four further charges, consisting of two offences of robbery whilst being armed with an offensive weapon, two offences of goods in custody and one offence of possessing a prohibited drug. On each of the two charges of robbery whilst armed with an offensive weapon Judge Williams imposed a sentence of penal servitude for ten years consisting of a minimum term of six years to commence from 6 March 1998 and an additional term of four years, the two sentences to be served concurrently. 2 It is desirable to set out in chronological order a number of events relating to the sentencing of the applicant. 3 On 5 March 1993 a District Court Judge sentenced the applicant for an offence of armed robbery whilst in company and an offence of assault with intent to rob whilst armed and in company, to concurrent sentences of penal servitude for eight years, including minimum terms of six years, which were to commence on 14 March 1991 and to expire on 14 March 1997. On 29 April 1994 another District Court Judge sentenced the applicant for an offence of maliciously inflicting grievous bodily harm to a fixed term of penal servitude of six months to be served cumulatively on the minimum terms of the sentences imposed on 5 March 1993. On 23 September 1997 the applicant was released on parole. 4 On 1 November 1997 the applicant was injured in a motor vehicle accident. Some submissions on behalf of the applicant in the proceedings on sentence were based on disabilities allegedly suffered by the applicant as a result of this motor vehicle accident. 5 On 24 November 1997 the applicant committed the first offence to be taken into account pursuant to s 21 of the Criminal Procedure Act. The applicant entered the bottle shop of an hotel. He produced a syringe and held it to the neck of the female owner of the hotel, who was in the bottle shop. He threatened to stick the syringe in her neck, if money was not placed in a bag. An employee of the hotel filled the bag with money and the applicant left the bottle shop, with the bag containing the money. The incident was recorded by a security video camera. 6 On 26 November 1997 the applicant was arrested for committing the armed robbery on 24 November 1997. A search warrant was executed at the premises where the applicant was living. Two travellers cheques, a mobile phone and a bank deposit book were found. The applicant's possession of these items gave rise to the charges of goods in custody which were included in the form under the Criminal Procedure Act. A small quantity of cocaine was also found and the applicant's possession of this cocaine gave rise to the charge of possessing a prohibited drug which was also included in the form. The applicant was granted bail and on 23 December 1997 he was released on bail. 7 On 2 February 1998 the applicant committed the first offence of armed robbery included in the indictment. He entered a post office and approached a customer service officer. He placed on the counter a note reading "This is a stick up, no funny business." The applicant then produced an object which was described by the sentencing Judge in his remarks on sentence as a "hand gun" and demanded money from the till. 8 Notwithstanding a submission that was put to us on the hearing of this appeal, I consider that his Honour was entitled to proceed on the basis that the object produced by the applicant was in fact a hand gun. It was described as being a hand gun in the count in the indictment to which the applicant had pleaded guilty. It was described as a hand gun in a facts sheet which had been admitted without objection in the proceedings on sentence. 9 After the applicant had demanded money, the customer service officer handed over money from the till and when the applicant demanded further money the officer handed over further money from under the till. The robbery of the money belonging to the post office constituted the first charge in the indictment. The applicant then demanded money from the customer service officer personally. The officer took out his wallet and handed the applicant a sum of money. The applicant started to leave the post office but then returned to the counter. He asked the officer to turn around and the applicant removed the officer's wallet from the officer's rear trouser pocket. The offence of armed robbery of the customer service officer in his personal capacity was the fifth offence included in the form under the Criminal Procedure Act. The whole incident occurring on 2 February 1998 was recorded by a security video camera. 10 On 13 February 1998 the applicant was arrested for the offences committed on 2 February 1998. On 19 February 1998 he was released on bail. 11 On 28 February 1998 the applicant committed the second offence of armed robbery included in the indictment. The applicant entered a TAB branch and approached the counter. He produced a note to the assistant behind the counter and demanded money. He partly lifted his shirt, thereby revealing that he was holding a hand gun in his right hand. For reasons similar to those which I gave earlier in relation to the robberies committed on 2 February 1998, I am satisfied that his Honour was entitled to proceed on the basis that the object produced was indeed a hand gun. After being threatened the assistant filled a bag with cash and the applicant left the TAB branch, with the bag containing the cash. 12 The applicant was arrested on 6 March 1998. An order was made by the Parole Board revoking his parole and he resumed serving in custody the balance of the additional terms of the sentences imposed on 5 March 1993. 13 It will be noted that all the offences in both the indictment and the form were committed while the applicant was on parole. The armed robberies on 2 February 1998 were committed while the applicant was on bail for the armed robbery committed on 24 November 1997 and the armed robbery on 28 February was committed while the applicant was on bail for the armed robbery on 24 November 1997 and the armed robberies of 2 February 1998. 14 In his remarks on sentence the sentencing Judge referred to the applicant's subjective circumstances in considerable detail. The transcript of this part of his Honour's remarks occupies approximately ten pages. The applicant was forty-one years old at the time of sentencing. He is of aboriginal descent. As a child he had numerous convictions in Children's Courts and he has had numerous convictions since he became an adult. Apart from the sentences imposed on 5 March 1993 and 29 April 1994 he had been sentenced in 1984 to long terms of imprisonment for offences including armed robbery. Judge Williams commented in his remarks on sentence: "In his adult years he has spent about four years altogether out of gaol." 15 In the proceedings on sentence evidence was given by the applicant, his mother, his sister and his brother and in his remarks on sentence his Honour referred at length to this evidence. His Honour also referred at length to a psychiatric report, a report from a psychologist, and a pre-sentence report. Towards the end of his remarks on sentence his Honour said: "His personal features are tragic in the extreme. A severely deprived background in the aboriginal community involving violence, alcohol and drug abuse and without strong family ties at times. An early dependence on alcohol and later turning to other damaging drugs."