By Blake O’Connor and Ugur Nedim
Radio shock jocks and tabloid newspapers often publish sensationalised reports accusing magistrates and judges of being ‘soft on crime’ by imposing lenient sentences on those who commit serious offences.
Those reports are often presented in a misleading fashion, ignoring many of the facts to invoke the emotions of the audience – who are led to conclude that courts are ‘out of touch’ with the community.
However, studies have repeatedly demonstrated that – when presented with all of the facts and circumstances – members of the public are generally more lenient than the judiciary when it comes to sentencing.
This blog discusses two cases where the prosecution appealed cases to the NSW Court of Criminal Appeal (NSWCCA) on the basis that the penalty imposed by the District Court was ‘manifestly inadequate’ or ‘plainly unjust’.
Dangerous Driving Causing Death
On 2 September 2016, the NSWCCA delivered its judgment in an appeal against the sentence of Bo Barker, who pleaded guilty to two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. The facts of the case are certainly distressing.
Mr Barker was driving three friends in a black, single cab Toyota Hilux. Two of those friends, Chloe Hardy and Jake Isbister, were seated in the front of the vehicle while a third, Kyle Dalzell, was seated in the tray on the back of the ute.
As Mr Barker approached a crest of the road, the vehicle hit a mound and started to sway from side to side, becoming unsteady. The imbalance caused the vehicle to roll four to five times, resulting in the tragic death of two passengers and serious injury to a third.
The ute had accelerated to a speed of 104 km/h in a 60 km/h zone – the speed and acceleration amounting to dangerous driving.
The District Court judge assessed the objective seriousness of the offence as “…within the medium range and towards the lower medium range” of all cases of dangerous driving causing death or GBH. He noted Barker’s genuine remorse, his prior good character, the conduct amounting to ‘dangerous’ and the enormous, documented psychological impact of the incident upon him – ultimately sentencing Barker to a total of 3 years and two months’ imprisonment with a non-parole period of 1 year and 8 months; meaning he would need to spend at least the latter period of time behind bars.
On Appeal, the NSWCCA found the judge had “understated” the seriousness of Mr Barker’s conduct:
“[57] I am satisfied that His Honour did fail to take into account all the relevant aggravating factors when determining the moral culpability of the respondent for the offending. This resulted in His Honour understating the objective seriousness of the offending”.
The court found that the sentence was “manifestly inadequate”. However, this did not mean the court was bound to increase the sentence. Rather, the law requires a court to consider a range of factors before exercising its “residual discretion” to impose a longer prison term.
In the present case, the court noted that the DPP had previously conceded that Mr Barker’s conduct was in the middle range of objective seriousness. It also took into account that he had already spent 8 months behind bars by time of the appeal hearing, that the psychiatric evidence concluded he had suffered – and continues to suffer – severe anxiety, depression and acute guilt as a result of his conduct and that “there exists a real risk that an increase in the respondent’s sentence would substantially and adversely affect his already fragile mental state.”
For those reasons, the court declined to exercise its discretion to “intervene and resentence” Mr Barker; meaning that his original sentence was confirmed.
Child Sex Offender
The second case involves the well-publicised case of the Bega child sex offender, Maurice Van Ryn.
Van Ryn committed 17 child sex offences over an 11-year period between 2003 and 2014. He was sentenced by the District Court to a term of 13 years’ imprisonment with a non-parole period of seven years.
One of the victims was an 11-year old boy who Mr Van Ryn groomed and performed sexual acts upon over a five-year period until he was 15. He gave the boy gifts, soft drinks and lollies as well as money for odd-jobs.
The NSWCCA found the sentence to be manifestly inadequate given the severity and sustained nature of the offending conduct. Justice Hulme remarked:
“I am of the view that the sentence is manifestly inadequate. There were a number of specific errors made by the Judge in his approach to sentencing which may explain the inadequacy of the sentence. Even if the errors were not the cause of the inadequacy, the sentence is so unreasonable and plainly unjust that it amounts to an affront to the administration of criminal justice”.
Mr Van Ryn was resentenced to 18 years in prison with a non-parole period of 13 and a half years.
Image credit: Wikipedia
