R v Ryan [2014] NSWDC 53

District Court New South Wales

Medium Neutral Citation: R v Ryan [2014] NSWDC 53 Hearing dates: 7 March 2014 Decision date: 07 March 2014 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an effective overall non-parole period of 5 years and an effective overall head sentence of 8 years. Catchwords: CRIMINAL LAW- Sentence - Assault occasioning actual bodily harm - Malicious wounding with intent to cause grievous bodily harm - Cricket bat used as a weapon - Subject to a s12 bond at time of the offence Category: Sentence Parties: The Crown Matthew Scott Ryan Representation: Counsel: Mr E Balodis - Crown Mr T Anderson - Offender Solicitors: Director of Public Prosecutions - Crown CDM Lawyers - Offender File Number(s): 2011/370698

Sentence 1HIS HONOUR: Family feuds can arise from the most minor issues. What led to the offender bashing his nephew with a cricket bat, and assaulting a security guard as well, with the necessary result that the offender must spend a very long time in gaol, was the inadvertent failure to repay of a debt of a mere $100. 2Michael Ryan and his girlfriend, Catrina Lee, borrowed $500 from Michael Ryan's uncle, Matthew Ryan, the offender in this case, and his girlfriend, Christy Melcham. There was an agreement that it would be repaid at $100 per fortnight. Because those repaying the loan miscalculated, the final payment was missed. Rather than this being sorted out amicably things were said, tempers were raised, and threats were made. The Ryan family split in two, yet both families lived in Muswellbrook, a relatively small country town, where one side of the family crossing paths with the other was inevitable. It appears that Michael Ryan may well have been involved in damaging the offender's home, certainly the offender believed that he had been. And so it was that on 18 November 2011 the two sides of the family came together in a very violent way. 3The offender approached his sister at the Royal Hotel in Muswellbrook; he threatened her and left. Michael, the son of the lady who had just been threatened, saw his younger brother, Brody, outside the hotel and was concerned for his welfare. He therefore left the hotel and circumnavigated it trying to find Brody. He was unsuccessful, but as he was running back towards the hotel he noticed the offender and Christy Melcham up ahead of him. His evidence at trial was that the offender stood in front of him with a knife in his hand and that when he, Michael Ryan, raised his hands to protect himself, they were slashed. The offender was charged with wounding with intent to cause grievous bodily harm, as a result but he was acquitted of this charge and the alternative. The defence case at trial was that it was Christy Melcham who had been in possession of the knife and who had caused the injuries to Michael Ryan's hands. Consistent with the jury's verdict, I will sentence the offender on the basis that that is what occurred. 4After his hands were slashed, causing very deep wounds which later required him being transported to Royal North Shore Hospital in Sydney and undergoing surgery there, Michael Ryan ran away. One of the security guards from the hotel, attracted by the commotion, was outside. Michael Ryan ran behind the security guard, Mr Pemberthy, using him as a shield. Matthew Ryan had brought a cricket bat with him to the hotel. He pulled it out of his tracksuit pants and began to use it, firstly on Mr Pemberthy, the unfortunate security guard being used as a shield, and then after Mr Pemberthy collapsed to the ground, chasing after Michael Ryan so that he could bash him with the cricket bat as well. 5The offender pleaded guilty to assault occasioning actual bodily harm relating to his attack on Mr Pemberthy and was found guilty by a jury of malicious wounding with intent to cause grievous bodily harm relating to his bashing of his nephew. The plea of guilty concerning the assault on Mr Pemberthy was entered fairly late but the offender had indicated a willingness to plead to that offence to the Director of Public Prosecutions at an earlier time. The sentence I impose upon him for that matter will be reduced by approximately 15% as a result. 6I also note in this context that he pleaded guilty to the alternative charge relating to the bashing of Michael Ryan with a cricket bat. That limited the issues at trial and that plea had a utilitarian benefit, which I will reflect in the sentence for the wounding with intent to cause grievous bodily harm upon Michael Ryan. 7Although what happened when Michael Ryan's hands were slashed at the front of the hotel was not captured on closed circuit television, the attack on Mr Pemberthy at the side of the hotel and the attack upon Michael Ryan at the rear of the hotel, were. Recordings of the CCTV footage were played in Court during the trial. Those recordings revealed in a graphic and truly horrible way the manner in which the offender used the cricket bat on the completely innocent Mr Pemberthy and the significantly injured Michael Ryan. Fortunately and perhaps even miraculously, Mr Pemberthy was able to get up after he was attacked by Matthew Ryan, the offender, but Michael Ryan was not so fortunate. It is to be remembered that he was scarcely in a position to defend himself. His hands had suffered serious wounds but nevertheless while lying on the ground he attempted to fend off the blows which were raining down upon him. The CCTV footage shows the offender raising the bat above his head, holding onto the handle with two hands and hitting Michael Ryan with considerable force indeed. It is apparent also, from the footage, that the offender moves around the body of Michael Ryan as he attempts to find a way to strike Michael Ryan to the greatest effect. In all, the offender used the bat upon Michael Ryan something in the order of ten or 12 times, each time appearing to use as much force as he possibly could. He only stopped when a further security guard intervened. Again it is something of a miracle that Michael Ryan was not more severely injured or even killed. He suffered a wound to his head which required suturing and a number of other injuries. Although he is left with scar on his scalp there are no other residual effects, at least in physical terms, from the beating he received from his uncle. 8The maximum penalty for the offence involving Mr Pemberthy is imprisonment for five years. The maximum penalty for the offence involving Michael Ryan is 25 years with a standard non-parole period of seven years. I have taken the maximum penalties and standard non-parole period into account in determining the appropriate sentences in the present case. My reasons for not imposing the standard non-parole period are to be found in these remarks on sentence. 9The offender is 30 years of age. Since leaving school he has had some employment as a labourer and before that in the upholstery industry with his father. But for the last six years he has been unemployed. That was, so he told the author of a pre-sentence report, because he had sole care for his two youngest children. He also has an older child from a previous relationship who is a ward of the State in Queensland and at the time the pre-sentence report was prepared, had a partner who was then pregnant with the offender's child. His two youngest children live with his mother and have done so since I refused the offender bail after his conviction by the jury. 10He has a criminal history but not for offences of violence. Given the nature of the offences on his criminal history it is no surprise to learn that the offender has had problems with alcohol and drugs for many years. He has tried to deal with these problems in the past, entering detoxification on three occasions, in 2005, 2006 and 2007. Clearly that has been largely unsuccessful. While on a good behaviour bond in 2011 it was proposed that he would enter rehabilitation again but he committed the offences for which I must sentence him before he could enter that program. 11At the time of this offence he was on a s 12 bond for a drink driving matter. Given the circumstance that he relies on the fact that he was caring for two of his children before I refused him bail, it is important to note that at the time of his high range PCA matter, when he had a blood alcohol level over 0.15, his two youngest children were in the car with him. The conviction as a result of the events of 18 November 2011 clearly represent breaches of the s 12 bond. With the offender's consent I will deal with the consequences of that breach. It is important to note that I will not double count . As will be made clear when I impose sentence, the offender will do some time in custody solely related to the PCA matter. It would be double counting to regard breach of the s 12 bond as an aggravating factor in addition. 12Somewhat surprisingly, despite the horrific assault which the offender perpetrated upon his nephew, and the assault on Mr Pemberthy, the presentence report notes that the offender continued to direct anger towards the victim in regards to the events that led to the current offence. Although it was said that he expressed remorse, that was apparently only for the impact his actions had on his immediate family. There is nothing at all in the presentence report to suggest that the offender has taken responsibility for his actions. Today, a report by psychologist, Mr Watson-Munro, was tendered. In that Mr Watson-Munro says that the offender continues to profess his innocence, consistent with the presentence report. But in giving evidence today the offender explained that both the author of the presentence report and the author of the psychological report had made mistakes. He said that he was remorseful, saying that he was sorry for the injuries suffered by the victim. In circumstances where both the presentence report and the psychological report expressed similar things about the offender's attitude towards the offence, in circumstances where how such mistakes could be made by those authors was not explained, and in circumstances where the offender's expressed remorse comes very much at the 11th hour, I do not accept that what he said in the witness box was genuine. I do not accept that he is sorry for the injuries suffered by, at the least, Michael Ryan. 13The offender's upbringing has involved some recent sad circumstances. His father, who had been ill for some time, died shortly before this trial and the family had earlier suffered from the tragic suicide of the offender's older brother. It is perhaps understandable, given such tragedies, that the offender might resort to an excess consumption of alcohol, especially given the circumstance that drinking was relatively commonplace as he grew up. The offender is depressed; part of that, of course, will be a reaction to the circumstances in which he finds himself in custody while his mother, now 63 years of age and suffering from arthritis, has been left to bring up his children. 14The offender says he was also using large amounts of amphetamines at the time of this offence. I do have to say that it is difficult to see that that is a mitigating circumstances. The offender's consumption of ice was entirely voluntary and, after all, it cannot be overlooked that each time he consumed ice he was committing an illegal act. 15Although a submission was not made that I would find hardship to third parties such that I could reduce the sentence accordingly, I will say this: it is terribly sad for the offender's children that he is in gaol and must remain there for some time. It is terribly sad for the offender's mother that she, after having lost one of her sons to suicide now finds the offender in custody. It is terribly sad for her too, that she must shoulder the burden, a burden I understand she willingly accepts but it is a burden nevertheless, of bringing up the offender's children. Unfortunately, consequences such as these are commonplace. Nevertheless, I accept that the offender will do his time in custody harder knowing that it is his misconduct which has caused harm, directly, to his mother and his children. I also note that he will do his time in custody harder because of the mental health issues which have been raised in the psychological report. 16The offender retains a great deal of family support. As I mentioned earlier he has worked in the upholstery industry for a number of years. His father was an upholsterer and from the age of eight the offender assisted him. He plans upon release from custody to enter that trade after completing appropriate TAFE courses. It is to be hoped that he might be able to do some of those courses and gain considerable experience whilst in custody. I recommend to the prison authorities that if work and courses involving upholstery are available in prison that upon the offender's request he be incarcerated in an institution where such courses and work are available. 17It is true that the offender's actions on this night appear to have been out of character. The absence of any other offence of violence on the offender's criminal history is testament to that. But it was not out of character for him to be intoxicated. He clearly has a great deal of trouble dealing with his addictions. The lack of any lasting benefit from his various rehabilitative efforts in the past suggests that he will have trouble upon release from custody in staying drug free and in not abusing alcohol to excess. Whilst I am satisfied that he has good prospects of rehabilitation as far as offences of violence are concerned, I cannot say the same thing about offending of every kind given the relationship between his prior criminal history and his drug and alcohol use. 18There are clearly special circumstances in this matter. They relate to issues of accumulation, his mental health issues, in particular his troubles with addiction to alcohol and drugs, and it is in both the community's interests and the offender's interests that he be offered an extended period of supervision upon parole in order to maximise that chance that he will not commit further offences. Nevertheless, a lengthy non-parole period is required to reflect the objective gravity of the offender's most violent conduct on 18 November 2011. 19I make the following orders. In relation to the s 12 matter I revoke the order for suspension and impose a non-parole period of nine months to date from 18 November 2012. For the offence of assault occasioning actual bodily harm upon Stanley Pemberthy I impose a fixed term of imprisonment of 18 months to date from 18 February 2013. For the offence of wounding Michael Ryan with intent to cause grievous bodily harm I impose a non-parole period of four years to date from 18 November 2013 and a head sentence of seven years. 20The overall sentence will thus be one consisting of an effective nonparole period of five years and a head sentence of eight years. The offender is eligible to be released to parole on 17 November 2017.