Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Ryan v R; Coulter v R [2013] NSWCCA 175
• Hearing dates: 11 April 2013
• Decision date: 29 July 2013
• Before: Simpson J at [1]; Price J at [83]; Harrison J at [84]

Decision

Helen Ryan:

(i) Leave granted to appeal against sentence;

(ii) Appeal dismissed.

Coralie Coulter:

(i) Appeal against conviction dismissed;

(ii) Leave granted to appeal against sentence;

(iii) Appeal against sentence dismissed.

• Catchwords: CRIMINAL LAW - appeal - murder - conviction - leave required under r 4 of the Criminal Appeal Rules to argue sole ground of appeal - whether error in failing to leave partial defence under s 421 of the Crimes Act 1900 to the jury - no evidence which required s 421 issue to be left to jury - leave to argue ground refused - appeal dismissed; CRIMINAL LAW - sentence - murder - application for leave to appeal against sentence - whether sentence manifestly excessive - no error found - leave to appeal granted - appeal dismissed; CRIMINAL LAW - sentence - murder - application for leave to appeal against sentence - whether sentence manifestly excessive - whether error in departure from the standard non-parole period - whether error in findings relating to appellant's prospects of rehabilitation - whether insufficient attention given to mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 - whether error in not adequately disclosing reasons for exceeding non-parole period - no error found - leave to appeal granted - appeal dismissed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Crimes Act 1900; Criminal Appeal Rules; Surveillance Devices Act 2007
• Cases Cited: Barton v Regina [2009] NSWCCA 164; Braysich v The Queen [2011] HCA 14; 243 CLR 434; Des Rosiers v Regina [2006] NSWCCA 16; Fingleton v The Queen [2005] HCA 34; 227 CLR 166; Goebel-McGregor v R [2006] NSWCCA 390; Pemble v The Queen [1971] HCA 20; 124 CLR 107; R v Braham (1994) 73 A Crim R 353; R v Ceniccola [2011] NSWSC 302; R v Chen (2003) 138 A Crim R 433; R v Holyoak (1995) 82 A Crim R 502
• Category: Principal judgment
• Parties: 2009/282687; Helen Kay Ryan (Appellant); Regina (Respondent); 2010/38082; Coralie Coulter (Appellant); Regina (Respondent)
• Representation: Counsel: I Barker QC/J Willims/G J Stanton (Ryan); S Odgers SC (Coulter); J Dwyer (Respondent); Solicitors: Cambridge Law (Ryan); Elamrousy Lawyers (Coulter); S Kavanagh - Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/282687; 2010/38082

Decision under appeal

• Citation: [2011] NSWSC 1249
• Date of Decision: 2011-10-21 00:00:00
• Before: Latham J
• File Number(s): 2009/282687; 2010/38082

Judgment

1 SIMPSON J: On 4 July 2011 Helen Kay Ryan and Coralie Coulter were convicted after jury trial, each on a single count of murder. By s 19A of the Crimes Act 1900, each became liable to imprisonment for life. By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") a standard non-parole period of 20 years is prescribed.

2 On 21 October 2011 Latham J sentenced Ryan to imprisonment for 36 years with a non-parole period of 27 years. Her Honour sentenced Coulter to imprisonment for 27 years with a non-parole period of 18 years. Both Ryan and Coulter filed notices of appeal against conviction, and applications for leave to appeal against sentence. On 8 April 2013 Ryan gave notice of abandonment of the appeal against conviction. She maintains her application for leave to appeal against sentence. Coulter has maintained the appeal against conviction and her application for leave to appeal against sentence.

 

Background

3 Helen Ryan is the daughter of Coralie Coulter. Another daughter of Coralie Coulter, Helen Ryan's sister, Ganene Coulter, pleaded guilty to conspiracy to murder and gave evidence in the trial.

4 The outline of facts that follows is largely drawn from the Remarks on Sentence of Latham J.

5 The victim of the murder was Helen Ryan's husband, Jeffrey Ryan. Helen Ryan and Jeffrey Ryan married in 1994. They lived together on a property near Tamworth (in the north of NSW) from 2001. Each had children from a previous relationship. Together they had one daughter (CR) who was aged 13 at the time of her father's death.

6 By early to mid 2008, the marriage of Helen Ryan and Jeffrey Ryan had deteriorated and Jeffrey Ryan had taken legal advice with a view to initiating divorce proceedings. Each made allegations of assault against the other, although these appear to have been relatively minor. As a result of an allegation by CR of assault against Jeffrey Ryan, and a consequent Apprehended Violence Order, Jeffrey Ryan moved out of the house and into a shipping container on the property, some distance from the house.

7 On 23 October 2009 Jeffery Ryan was shot dead on the property, just outside the container in which he was living. A man called Ken Brooks was convicted of the shooting.

The Crown case

8 The Crown case, which was accepted by the jury, was that Helen Ryan had contracted with Brooks to undertake the killing. She had agreed to pay him $30,000 for that purpose.

9 The evidence established to the satisfaction of Latham J to the requisite (criminal) standard that, while Jeffrey Ryan was resolute about ending the marriage, Helen Ryan wished the marriage to continue. She sought to interfere in a new relationship Jeffrey Ryan had begun with another woman. She had learned that Jeffrey Ryan had changed his will, to her detriment. These two factors provided the motivation for her arranging for the murder of her husband. Helen Ryan therefore initiated steps to arrange for Brooks to kill Jeffrey Ryan. She was introduced to Brooks by a man called Ian Carroll, also known as "Sharkie". She paid $15,000 by way of deposit, the balance of $15,000 to be paid after Jeffrey Ryan's death. Coulter contributed $10,000 of the deposit. Coulter provided the money to Helen Ryan after Helen Ryan had complained to her of Jeffrey Ryan's behaviour. In sentencing Latham J was satisfied that the accounts given by Helen Ryan to Coulter were "grossly exaggerated", and that Coulter believed those accounts.

10 Helen Ryan gave Brooks photographs of Jeffrey Ryan, and told him of Jeffrey Ryan's living circumstances and the location of the container.

11 On the evening of 23 October 2009 Jeffrey Ryan visited the main residence on the property and left between 7.30pm and 8.15pm and returned to the shipping container. At about 8.40pm, he went outside. Brooks was present, and fired at least two shots from a shotgun, killing Jeffrey Ryan.

12 Following the murder, both Helen Ryan and Coralie Coulter went to some lengths to deflect suspicion from themselves. Their subsequent telephone conversations were the subject of lawful interception, and constituted a good part of the Crown case against them.

13 Having regard to Coulter's ground of appeal against conviction, it is important to note the following aspect of the Crown case. From an early stage a police undercover operative, who gave his evidence under the name "Shane", had been involved in the investigation, and made contact with Helen Ryan, and Ganene and Coralie Coulter. All of his conversations with them were recorded pursuant to a warrant issued under the Surveillance Devices Act 2007.

14 Notwithstanding the concealment measures she had taken, on 15 December 2009, Helen Ryan was charged with murder. Two days later, she was granted bail. On the same day, she accompanied Shane to the Local Court, with the intention of paying $10,000 to a person she believed to be a corrupt official who would arrange for the destruction of evidence.

15 In January 2010, Shane was introduced to Ganene and Coralie Coulter by Ian "Sharkie" Carroll, who was by then, acting at the behest of police. Both women were aware that police were investigating (Helen Ryan had already been charged) and believed that Carroll had introduced Shane with a view to his assisting them to deflect police inquiries. Both had lengthy conversations with him, which were recorded, and which featured heavily in the Crown case. One of the conversations with Coulter is central to the ground of appeal against conviction that she advances.

16 This conversation took place on 12 January 2010 when Shane met Coulter at a park. They met just before 10am, and the meeting ended at 2.17pm. The recording of this conversation became Exhibit P in the trial. Shane told Coulter that he was there because "Sharkie" had asked Shane to do Sharkie a favour. She told him that she was under suspicion because she had withdrawn $10,000 from the bank. She said that she took the money out of the bank "to pay this Ken [Brooks]", and:

"I took $10,000 out of the bank to pay him for the job he done ... because Helen [Ryan] hasn't got any."

Shane asked Coulter if Helen Ryan had told her what she wanted the money for. She answered:

"She just said she wanted the money to pay Ken [Brooks] to get rid of Jeff. Should I be telling you this?"

Shane told her that he needed to know everything so that he could help her and Helen Ryan out.

Coulter said:

"That's, that's why she said. She said, 'Oh,' and I said, 'Well, I'll give you,' he was giving her a terrible time. He was going to bury her alive and he was going to get somebody in Tamworth to do it, kill her and all this. It was just terrible.

...

Yeah, he was terrible to her. He was terrible to her. She, you know, even Sharky can give you that. You know, he said, he, he could feel that she was in a terrible position you know? Yeah, but I don't, I've never met this fellow that did it and Helen's only ever seen him once and ---"

In the conversation that immediately followed, Coralie Coulter made it quite clear that the arrangement with Brooks was to kill Jeffrey Ryan.

17 A little while later the following was recorded:

SHANE: And what did you think, what, what did you think of Jeff, was he ---

COULTER: No, he was a horrible thing. He had another woman. But she wanted to divorce him ---

SHANE: Yeah.

COULTER: --- and he wouldn't do it.

SHANE: Okay.

COULTER: Yeah, he wouldn't do it. She said 'Get a divorce,' and he said 'No,' he wouldn't, he wouldn't even divorce her. He wanted everything and she, and he didn't want her to have anything see?

SHANE: Yeah.

COULTER: And that's how it was. And ---

SHANE: Jeez, you're a good mum, helping her out like that?

COULTER: Oh, well you do it for your kids don't you?

SHANE: Oh, exactly. Yeah, I've got a couple of little ones, you know?

COULTER: Yes, yes, you know?

SHANE: But I'd do anything for them.

COULTER: Yep, yep. Especially when she was, the life she was going through. Well, her daughter had an AVO out against him from school.

SHANE: Yeah.

COULTER: [CR], he was terrible to her, yes.

SHANE: Okay.

COULTER: Yeah, it wasn't, it wasn't, it was terrible.

SHANE: How, how was he towards [CR]?

COULTER: Not nice.

SHANE: No?

COULTER: He said, he told her he used to tell her he hated her and all this, he was terrible to her. And the school made her take an AV[O], she was getting you know, bad at school and it was affecting her and they got to the bottom of it the school and they said, 'Oh, you'll have to take an AVO out against him.'

SHANE: Mmmm.

COULTER: And Helen said, Oh, no, she wouldn't do that. She said, it would only make him worse.

SHANE: Does [CR] know any of this?

COULTER: No, no.

18 On 10 February 2010 Ryan attended Brooks' home in order to pay the balance of the contract price. She was arrested on that day, refused bail and has remained in custody since. Coralie Coulter was also arrested that day and has also remained in custody.

The defence cases

19 Both Ryan and Coulter gave evidence in the trial. Ryan's evidence was to the effect that she had contracted Brooks to assault her husband, short of inflicting any serious harm upon him. She sought to cast the blame for arranging the murder on her sister Ganene Coulter, to whom she attributed hate, jealousy and resentment because Ganene Coulter had had a relationship with Jeffrey Ryan prior to his meeting Helen Ryan.

20 In her evidence, Coralie Coulter acknowledged that she had been guilty of the offence of accessory after the fact of murder, but she denied participation in the murder. She said that she had lent Helen Ryan $10,000 to assist Jeffrey Ryan who was in financial trouble, and that she did not know until after the event that the money was used to pay for his murder.

21 The jury rejected both defences. It is expressly conceded on behalf of Coulter, having regard to the terms of the conversation extracted above, that the verdict against her is supported by the evidence.

The conviction appeal

22 Coulter has pleaded a single ground of appeal against conviction, as follows:

"The trial judge erred in failing to leave to the jury the partial defence under s 421 of the Crimes Act 1900."

Senior counsel for Coulter acknowledged that, as no submission was put to the trial judge that the "partial defence" should be left to the jury, he needs leave to be permitted to argue the point: Criminal Appeal Rules, r 4. The point is without merit, and, for the reasons that follow, leave should be refused.

23 Section 421 provides for the so-called "partial defence" shortly known as "excessive self-defence". It is called a partial defence because, if the necessary conditions are met, a person who would otherwise be convicted of murder is to be found guilty of the lesser crime of manslaughter. The section is in the following terms:

"421 Self-defence-excessive force that inflicts death

(1) This section applies if:

(a) the person uses force that involves the infliction of death, and

(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:

(c) to defend himself or herself or another person, or

(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."

The reference to "the person" is clear when s 421 is read in the context in which it appears. Section 421 appears in Pt 11 of the Crimes Act, which is headed "Criminal responsibility - defences". Division 3 of Pt 11 is headed "Self-defence", and commences with the sub-section:

"418(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence."

It will be observed that, unlike s 421, s 418 is of general application, encompassing offences that do not result in death.

24 The "partial defence" for which s 421 provides is not, in reality, a true defence. That is made clear by s 419. Section 419 provides:

"In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence."

25 Read literally, s 421 applies only to the person who uses the force that causes death. Taken in those terms, the section cannot be applicable to Coulter, as she did not inflict the force that caused the death of Jeffrey Ryan. However, senior counsel who appeared for Coulter argued that the protection afforded by the provision can extend, in a derivative way, to a person who aids and abets the person who inflicts the fatal force.

26 It is unnecessary, in this case, to reach any conclusion as to that proposition. The Crown accepted that it is conceivable that some circumstances might give rise to such an interpretation. For example, a person who handed a gun or a knife to another person who was under immediate threat of being killed or injured might be able to claim the benefit of the section. Whether that is so does not arise for determination in the present case. Even if Coulter, as a person responsible for the death of Jeffrey Ryan, while not the person who used the force that caused his death, could avail herself of the benefit of the provision, the conditions necessary before the jury could have been invited to consider the defence were not met.

27 The substance of s 421 is to be found in sub-s (2). Put simply, if the relevant conditions are met, then a person who would otherwise be convicted of murder, is to be convicted of manslaughter.

28 The relevant conditions are:

(i) that the person accused used force that caused death;

(ii) that that use of force was not a reasonable response in the circumstances as the accused person perceived them.

If those two facts are established (and they must be proved beyond reasonable doubt by the prosecution) then, ordinarily (absent the availability of some other defence or partial defence, such as mental illness, provocation, or substantial impairment), s 421 appears to provide for the reduction of the offence from murder to manslaughter in circumstances where:

(iii) the person accused believed that the use of force was necessary for one of the purposes specified in sub-para (c) and (d) - to defend himself or herself or another person (against what is not stated) or to prevent or terminate unlawful detention. It is of some note that there is no requirement that any such belief be reasonable, or be held on reasonable grounds.

I said that s 421 "appears" to provide for that reduction in circumstances where the person holds the stated belief. In fact, that is not quite correct. That is because of s 419. Although s 419 was not mentioned in either the written submissions or the oral argument advanced on behalf of Coulter, it is an important provision in understanding s 421. Section 419 provides:

"Self-defence-onus of proof

In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence."

29 Accordingly, the third necessary condition for s 421(2) to operate is that the Crown fails to prove that the person did not (subjectively) hold the relevant belief.

30 It is, therefore, a misnomer to call the protection afforded by s 421(2) a "defence" or "partial defence". Disproof that the accused person held the belief is an essential element in the Crown case. But it becomes an essential element in the Crown case only when "the application of [Div 3] is raised". That can only mean "raised by the accused person" or "raised on the evidence". It is not in every case in which murder is charged that the Crown must set out to negative the belief. That obligation arises only where the provisions of Div 3 "are raised".

31 What must be negatived by the Crown, where Div 3 issues are raised, is the state of mind of the accused person. That can be done, as well as through direct evidence of that accused person, by inference or by circumstantial evidence: see, for example, Braysich v The Queen [2011] HCA 14; 243 CLR 434 per Bell J (in dissent) [101].

32 The issue in Braysich was whether a true defence - that is, a response to the Crown case in which both the legal and evidential onus was cast on the accused ([36], [101]) ought to have been left to the jury. In that context, the plurality said:

"35 Where, as in the present case, a statute creating an offence provides for a defence and imposes the legal burden of establishing that defence on the accused, then the accused also bears the evidential burden. For that evidential burden to be met there must be evidence upon which the trial judge can properly direct the jury that the defence is open as a matter of law.

36 If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be:

1. In a case where the legal burden is on the prosecution and the evidential burden on the accused - is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?

2. ...

..."

33 The defence in question in Braysich involved the purpose of the accused in conducting himself as he did. In that context, the plurality went on to say:

"37 The appellant was not required to produce evidence of his subjective purpose or purposes in order to meet the legal burden of establishing the statutory defence. The legal burden on him was to prove on the balance of probabilities that he lacked the proscribed purpose. One way of doing that was to adduce or point to evidence inconsistent with the proposition that he had that purpose. He did not have to point to evidence of his actual purpose in order to invoke the defence. Any evidence that could support an inference that the appellant did not have the proscribed purpose was relevant to the statutory defence. The question whether he had discharged the 'evidential burden' was to be answered accordingly." (italics added)

34 Here, by reason of s 419, no legal burden rested on Coulter. One question that arises is whether, by reason of the words "is raised" in s 419, she bore an evidential burden. I incline to the view that she did not. That is because issues concerning Div 3 can be, and often are, raised in the prosecution case. However, it is unnecessary to resolve that question.

35 It is well established that where a defence or possible defence (whether complete or partial) is capable of arising on the evidence, a trial judge is obliged to leave that defence or partial defence to the jury, even where that defence or partial defence is not being relied upon by the accused, and even if it has been disclaimed: Pemble v The Queen [1971] HCA 20; 124 CLR 107; Fingleton v The Queen [2005] HCA 34; 227 CLR 166.

36 Important words in that formulation are "on the evidence". They hark back to the passages in Braysich, in [35] and [36] extracted above.

37 For application in Coulter's case, the test stated in [36] of Braysich may be paraphrased and adapted as follows:

"Was there evidence which, taken at its highest in favour of Coulter, could have led the jury, acting reasonably and properly instructed, to have considered that there was a reasonable possibility that she believed that her conduct in participating in the murder of Jeffrey Ryan was necessary in order to defend Helen Ryan or CR against Jeffrey Ryan?"

38 What is now put is that there was evidence sufficient to raise the question whether Coulter believed that her participation in the murder was necessary in order to protect her daughter Helen Ryan, and Helen Ryan's daughter CR, against Jeffrey Ryan. Given that Coulter's evidence was that she did not know what Helen Ryan intended to use the money for, she did not give evidence of any belief that it was necessary for her to do what she did in order to defend Helen Ryan or CR. However, on her behalf, it was argued that there was, in the evidence in the Crown case, sufficient to meet the Braysich test as reformulated to take in the circumstances of the present case.

39 Reliance was placed upon those passages in the conversation with Shane of 12 January 2010, in which Coulter said that Jeffrey Ryan was giving Helen Ryan "a terrible time ..."; and "he was going to bury her alive and he was going to get somebody in Tamworth to do it, kill her and all this. It was just terrible ... She was in a terrible position". Reference was also made to evidence that, when CR's school proposed an Apprehended Violence Order against Jeffrey Ryan, Helen Ryan responded that she would not do that because "it would only make him worse".

40 In this context, mention was also made of Latham J's characterisation of the accounts given by Helen Ryan to Coulter of Jeffrey Ryan's conduct as "grossly exaggerated", and Coulter's belief in those grossly exaggerated accounts.

41 It is one thing to say that the evidence of Coulter's conversation with Shane went some way to providing an explanation for her conduct. It is a very different thing to characterise an explanation for participating in a crime as a belief that that conduct was necessary - necessary for the stated purpose, or one of the stated purposes. The evidence of what Coulter said to Shane is capable of throwing some light on why Coulter did what she did. It falls far short of even having the capacity to constitute evidence that Coulter had the requisite belief - that the murder of Jeffrey Ryan was necessary in order to defend Helen Ryan and/or CR.

42 The notion that a court might be called upon to direct a jury that a contract killing, if motivated by a (subjective) belief in its necessity for defensive purposes, ought to result in a conviction for manslaughter rather than murder is both repugnant and abhorrent. Yet the language of s 421 appears to comprehend just that - provided that its benefit can fall upon a person other than the person who uses actual force. Subject to that question, if Coulter had given evidence that she held the requisite belief, or if there had been evidence in the Crown case that she held that belief, Latham J would have been obliged to leave the question to the jury.

43 However, it is not necessary to grapple with the implications of s 421. Put simply, there was no evidence that would have supported leaving the s 421 issue to the jury. That, no doubt, is why the question was not raised in the trial.

44 I would refuse leave to argue the only ground advanced. I would dismiss the appeal against conviction.

The applications for leave to appeal against sentence

The applicants' personal circumstances

(i) Helen Ryan

45 Helen Ryan was born in May 1960. She was 49 at the date of the offence, 51 at sentencing. Latham J was provided with a report by a psychologist, Ms Anna Robilliard. The report pre-dates the trial, and was, presumably, commissioned with a view to ascertaining if there were any available defences or partial defences to the charge of murder. It did not disclose anything relevant in that respect. The author reported a history given by Ryan of a childhood dysfunctional relationship with her mother, and the death of her father, to whom she was devoted, when she was 17. Ryan told Ms Robilliard that she became pregnant at 15, and was "kicked out" of home by her mother. She remained for 17 years in a relationship with the father of her child, although he was a heavy drinker and consistently verbally abusive and intermittently physically abusive. Ryan is in good physical health. She has no previous criminal history.

(ii) Coralie Coulter

46 Coralie Coulter was born in October 1939 and was 70 years of age at the time she participated in the arrangements to have Jeffrey Ryan murdered. She was 72 at sentencing. Before the Court was a pre-sentence report based on information supplied by Coulter, and confirmed by others of her children.

47 The report stated that her husband died in 1987, aged 47. The couple had six children, two of whom were Ganene Coulter and Helen Ryan. To the author of the report, Coulter continued to assert her innocence, saying that she was unaware of the plan to kill Jeffrey Ryan. She said that she lent money to Helen Ryan because she had been told that the couple were in financial difficulties. She also has no prior criminal convictions.

The Remarks on Sentence

48 For the purposes of sentencing, Latham J set out the facts of which she was satisfied; those which were adverse to the applicants, she found established beyond reasonable doubt; those which were in their favour, she found established on the balance of probabilities.

49 She was satisfied that Helen Ryan had, prior to the murder, and in order to gain support for her plan from Coralie Coulter and Ganene Coulter, given accounts of Jeffrey Ryan's behaviour that were grossly exaggerated. She nevertheless accepted that there were some, relatively minor, instances of assault by Jeffrey Ryan on Helen Ryan, and one occasion on which Jeffrey Ryan pushed or threw a bag of feed towards CR. Under no circumstances could it be said that these incidents justified the course that was taken by Helen Ryan and by Coralie Coulter.

50 Latham J also recounted the steps taken by Ryan and Coulter following the murder, for the purposes of concealing their involvement. This included Ryan's attempt, through Shane, to bribe a supposedly corrupt court official to destroy evidence.

51 With respect to Ryan, she said:

"14 By its verdict, the jury determined that Helen Ryan deliberately and methodically plotted to have her husband killed, and that she enlisted the aid of her mother and her sister to bring about that result and avoid the possibility of detection for the offence. Far from the cowering, oppressed and terrorised wife that she attempted to portray, Helen Ryan embarked on a cold-blooded plan to get rid of her husband, rather than risk the dissolution of the marriage and the loss or diminution of the assets that they had jointly acquired.

15 The objective gravity of this offence is of a very high order. The callousness with which both offenders embarked upon this plan and carried it to fruition, knowing that it would deprive Mr Ryan's extended family of a much loved father, brother and son, not to mention Helen Ryan's own daughter of a father, beggars belief. In my view, the offence falls very close to the worst category for offences of this type.

16 In the case of Helen Ryan, the offence is worthy of the description 'wicked' and 'gravely reprehensible'. To contemplate and carry out such a plan for purely selfish and largely financial motives demonstrates heinousness to a significant degree. There was a considerable deal of persistence exhibited by Helen Ryan. The killing was to have taken place weeks earlier but was called off by Mr Brooks. Throughout this period of time, the offender was acutely aware that there were agencies in the community, such as the police, the legal profession and the Family Court, which were capable of advocating on her behalf so as to preserve her lawful interests. She deliberately chose to exact revenge upon her husband. On the night that he was killed, Helen Ryan received a call from Mr Brooks and informed him that her husband had left the house. I am satisfied to the requisite standard that she did so, knowing that she was sending her husband to his death." (italics added)

Notwithstanding these findings, her Honour considered and rejected the Crown submissions that Ryan's offence fell into the worst category of offences of murder and called for a sentence of imprisonment for life. She said:

"17 ... In particular, there does not appear to be a compelling need to protect the community from this offender. There is no material which justifies the conclusion that this was not a gross aberration. There is no reason to think that she represents an ongoing danger to the community at large."

These remarks were made in the context of a hypothetical consideration of the sentence that would have been imposed had she acceded to the Crown submission that Ryan's offence was a "worst category" case. Essentially, her Honour was here addressing the considerations raised by s 61(1) of the Sentencing Procedure Act (which requires, in certain specific circumstances, the imposition of a life sentence). Her conclusion was that, even if she categorised the offence as a "worst case", that did not necessarily dictate the imposition of a life sentence.

52 In concluding her Remarks concerning Ryan, her Honour said:

"35 It is clear that the offender refuses to take responsibility for the murder of her husband and must therefore be sentenced on the basis that she demonstrates no remorse or contrition. Her prospects of rehabilitation therefore remain guarded. I can see no basis upon which the Court should find special circumstances [for the purpose of s 44(2) of the Sentencing Procedure Act], particularly given that the length of the sentence necessarily imports a lengthy parole period which should be more than sufficient to allow the offender to re-engage with the community."

53 With respect to Coulter, her Honour held, by reference to the intercepted telephone conversations, that Coulter was "integral to the contract with Brooks, in the sense that she provided the bulk of the deposit that initiated the killing". She held also that Coulter actively and consistently encouraged Ryan and Ganene Coulter "to remain firm in the face of the police investigation" after the death. She found it difficult to comprehend the participation of Coulter, given that Coulter had acknowledged that she previously regarded Jeffrey Ryan as a good husband and father, and had no personal motive for participating in his murder. Her Honour accepted that Coulter's involvement was prompted by fabricated allegations made by Helen Ryan against Jeffrey Ryan, but held that she was, at every stage of the process, a willing and active participant.

54 Her Honour held that Coulter's criminality was of a lesser order than that of Ryan, because she was not the instigator of the plot, and, apart from providing the money, played no direct role in the negotiations with Brooks that preceded the killing. She was persuaded that Coulter's participation could be explained (although never justified) by her genuine belief that her daughter and granddaughter were being subjected to gross physical and possible sexual abuse.

55 Her Honour rejected an argument advanced on behalf of Coulter that considerations of parity between Ganene Coulter and Coralie Coulter arose. There is no challenge to that finding.

The grounds of the applications

Coulter

56 The only ground sought to be relied on in support of Coulter's application for leave to appeal against sentence is that the sentence is manifestly excessive.

57 The written submissions cited the relevant factual findings made by Latham J as follows:

" The appellant 'was integral to the contract with Mr Brooks, in the sense that she provided the bulk of the deposit that initiated the killing' ... At no stage did [Coulter] 'attempt to persuade [Helen Ryan] that there were other lawful measures that were available to her'. However, 'she was not the instigator of the plot and apart from providing money, she played no direct role in the negotiations with Mr Brooks that led up to the killing' ...

 There was no remorse or contrition.

 The appellant 'personally had no motive for harming the victim'.

 The appellant was 72 years old at the date of sentencing, a person of good character without prior convictions.

 The appellant was a 'devoted and selfless mother and grandmother' ...

 'Helen Ryan's claims in respect of the assaults upon her by her husband, and his general behaviour towards her and towards their daughter, were grossly exaggerated, no doubt in order to convince her mother, Coralie Coulter ... that drastic action was needed to ensure their safety'.

 [Coulter's] participation in the offence 'can be explained ... by her genuine belief that her daughter and granddaughter were being subjected to gross physical and possibly sexual abuse' by the victim ... She accepted 'without reservation the claims made by Helen Ryan to the effect that both she and CR were being terrorised by the victim'.

 There were special circumstances justifying a variation in the usual ratio between non-parole period and [full]term."

58 No additional oral argument was advanced in support of the written submissions. In my opinion, no case has been made that the sentence was manifestly excessive. That Coulter had "personally no motive for harming" Jeffrey Ryan is, in my opinion, a significant finding, but one that, far from mitigating the offence, exposes it as one of considerable callousness, as her Honour regarded it.

59 As is obvious from the Remarks on Sentence, the cold blooded and calculating nature of the offence makes it a very serious one indeed, as does the sustained period of planning, preparation and organisation.

60 I am satisfied that the sentence was not manifestly excessive. I would grant leave to Coulter to appeal against the sentence, but dismiss the appeal.

Ryan

61 As finally presented, Helen Ryan's application for leave to appeal against sentence pleaded five grounds as follows:

"1. The sentence was manifestly excessive.

2. Her Honour erred in departing from the standard non-parole period by increasing the non-parole period to 27 years.

3. Her Honour erred in finding that the appellant's prospects of rehabilitation 'remained guarded'.

4. Her Honour paid insufficient attention to the mitigating factors enumerated in s 21A(3)(e) to (h) [of the Sentencing Procedure Act].

5. Her Honour erred in not adequately disclosing her reasons for increasing the non-parole period from 20 years to 27 years."

Grounds 1, 2, and 5: exceeding the standard non-parole period

62 Part 4 Div 1A of the Sentencing Procedure Act deals with standard non-parole periods. For the purposes of the present application, the relevant provisions are as follows:

"54A What is the standard non-parole period?

(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.

54B Sentencing procedure

(1) This section applies when a court imposes a sentence of imprisonment for an offence ... set out in the Table to this Division.

(2) When determining the sentence for the offence ... the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

(4A) ...

(4B) ...

(5) The failure of a court to comply with this section does not invalidate the sentence."

63 The Table to the Division (referred to in s 54A(1)) contains three references to offences of murder. Items 1A and 1B prescribe standard non-parole periods of 25 years for offences of murder where the victim of the murder was a member of a particular occupational group (such as police officer, emergency services worker, judicial officer, and a range of others), or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, or where the victim was a child under 18 years of age. In other cases of murder, the Table prescribes a standard non-parole of 20 years. This is the category into which Ryan's offence falls. Accordingly, pursuant to s 54B(2), Latham J was required, in determining the sentence for Ryan, to impose a non-parole period of 20 years unless she determined that there were reasons for setting a longer or shorter non-parole period.

64 The only permissible reasons for departure from the standard non-parole period are those listed in s 21A of the Sentencing Procedure Act (s 54B(3)). That section sets out, in sub-s (2), factors that aggravate an offence, and, in sub-s (3), factors that mitigate an offence. However, by sub-s (1)(c), the Court is also required to take into account:

"any other objective or subjective factor that affects the relative seriousness of the offence",

and, for good measure, a suffix to sub-s (1) provides:

"The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law."

The effect of this is that all sentencing considerations are relevant to a determination under s 54B(2) to impose the prescribed standard non-parole period, or to depart from it, whether incrementally or decrementally.

65 In fixing a non-parole period of 27 years, Latham J imposed a term that was longer than the standard non-parole period by a considerable margin. Pursuant to s 54B(4) she was required to make a record of her reasons for doing so, and to identify each factor that she took into account.

66 There is no discrete section in the Remarks on Sentence in which her Honour recorded her reasons for taking that course. In my opinion, s 54B(4) calls for a clear explanation of the reasons for imposing a non-parole period that exceeds the standard non-parole period, and for express identification of all relevant factors. However, by reason of sub-s (5), failure to comply with sub-s (4) does not invalidate the sentence.

67 Section 54A(2) should not be overlooked. It is clear that the standard non-parole period is intended to prescribe a non-parole period by reference to an offence in the middle of the range of objective seriousness for offences of its type. It is perfectly clear, from the passages in the Remarks on Sentence that I have extracted above, that her Honour took the view that Ryan's offence was considerably more serious than an offence in the middle of the range of objective seriousness. She said, explicitly, that the objective gravity was "of a very high order", and that the offence "falls very close to the worst category for offences of this type".

68 Also relevant, and touched upon, at least implicitly, in the Remarks on Sentence, were items (m) and (o) of the catalogue of aggravating factors set out in s 21A(2) of the Sentencing Procedure Act - that the offence was part of a planned or organised criminal activity, and was committed for financial gain. These were among the circumstances that took the offence close to a worst category offence.

69 In support of these grounds, senior counsel for Ryan also referred to statistical material provided by the Judicial Commission of NSW. The limitations of such material were recognised. These, it was contended, showed that, between 2005 and 2012, the average sentence for murder was a head sentence of 25 years, with a non-parole period of 18 years. Where the murder was a contract killing, the statistics suggested a head sentence of 26.32 years, with a non-parole of 23.02 years; where the victim was the spouse of the offender, the average head sentence was 23.57 years, with a non-parole of 18.12 years.

70 What was lacking in the analysis was any reference to the circumstances of individual cases. It is to be borne in mind that her Honour considered that this was a case which only marginally fell short of being in the worst category of offences of its type - for which Ryan would have been liable for a penalty of imprisonment for life.

71 The sentence does represent a considerable increment upon the standard non-parole period; however, that is commensurate with the gravity of the offence.

72 To the extent that ground 1 incorporates a challenge to the head sentence as well as the non-parole period, I observe that that sentence is proportionate to the non-parole period. It is also proportionate to the gravity of the crime.

73 I would reject grounds 1 and 2 of the application; with respect to ground 5, I am satisfied that the Remarks read as a whole adequately disclose her Honour's reasons for increasing the standard non-parole period as she did.

Ground 3: prospects of rehabilitation

74 I recognise that there is some apparent tension between the finding, in [35], that Ryan's prospects of rehabilitation "remain guarded" and her Honour's earlier expressed view, in [17], that there did not appear to be a compelling need to protect the community from Ryan, that the offence was "a gross aberration", and that there was no reason to think that Ryan represents an ongoing danger to the community at large. However, examination of the contexts in which these observations were made dispels any notion of inconsistency.

75 The former finding ([35]) was made on the basis of the complete absence of any evidence of remorse or contrition. It was also made in the context of her Honour's consideration of a variation of the statutory proportion between the non-parole period and the head sentence (see s 44(2) of the Sentencing Procedure Act). It is plain that, in expressing that view, her Honour was rejecting a submission for variation from that proportion, with a view to providing Ryan with an extended period of supervision while on parole. The latter finding ([17]) was made in the context of consideration of the imposition of a sentence of life imprisonment, with implicit reference to s 61(1) of the Sentencing Procedure Act.

76 In the absence of any acknowledgement by Ryan of her guilt of the offence, it was legitimate, in that context, to find that her prospects of rehabilitation were guarded. Even if it were not so, the prospects of rehabilitation would not be a sufficient reason to depart from the inevitable consequences of the finding that the offence came very close to a worst category offence. The submissions with respect to this ground focussed heavily on Ryan's previous good character and the absence of any criminal history. In this respect they overlapped with ground 4, with which I deal below. I merely note, for the purposes of this ground, that absence of criminal history does not necessarily bespeak prospects of rehabilitation. That Ryan could even contemplate a crime of the magnitude of the murder she organised suggests an absence of moral character.

77 I would reject this ground of appeal.

Ground 4

78 By ground 4, complaint is made that her Honour paid insufficient attention to certain mitigating factors spelled out in s 21A(3). Those to which reference was made are:

"(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,

..."

Her Honour recognised explicitly that Ryan had no criminal record. There was no evidence that she was otherwise a person of good character. I have dealt with the likelihood (or otherwise) of re-offending, and prospects of rehabilitation.

79 In my opinion, her Honour dealt adequately with all of these factors. I would reject this ground of appeal.

80 I would grant leave to appeal against the sentence, but dismiss the appeal.

81 The orders I propose are:

Helen Ryan:

(i) Leave granted to appeal against sentence;

(ii) Appeal dismissed.

Coralie Coulter:

(i) Appeal against conviction dismissed;

(ii) Leave granted to appeal against sentence;

(iii) Appeal against sentence dismissed.

82 Since preparing the above reasons, I have read in draft the dissenting judgment of Harrison J. I have considered the matters that he raises, and I accept that the age of Coulter, and her more limited involvement in the offence, are significant matters which could have resulted in a sentence more lenient than that imposed. However, it is fundamental that assessment of sentence is a matter for the primary sentencing judge, and a sentence so imposed is not to be interfered with unless it is shown to have been manifestly excessive, or, put another way, one which was not open in all of the circumstances. In this case, I am not able to be so satisfied. I agree that the sentence was severe, but, in my opinion, not manifestly excessively so.

83 PRICE J: I agree with Simpson J.

84 HARRISON J: I agree with Simpson J that the application by Ms Ryan for leave to appeal against her sentence should be granted but that the appeal should be dismissed. I also agree that Ms Coulter's appeal against her conviction should be dismissed. I consider that Ms Coulter's application for leave to appeal against her sentence should be granted but I am unable to agree that her appeal against that sentence should be dismissed.

85 As the trial judge correctly observed, Ms Coulter was at the time of her conviction 72 years of age and of previous good character without prior convictions. She was described as a devoted and selfless mother and grandmother. She was not the instigator of the plot and apart from providing money, played no direct role in the negotiations with the person hired to commit the murder. Her Honour noted that Ms Coulter's participation in the offence could be explained, but not excused, by a genuine belief that her daughter and granddaughter were being subjected to gross physical and possibly sexual abuse by the deceased and that Ms Coulter accepted her daughter's claims to the effect that both her daughter and her granddaughter were being terrorised by him. On the other hand, she took no steps to dissuade her daughter from proceeding with the plan to kill the deceased or to direct her towards appropriate legal ways of dealing with her problems with him. Ms Coulter expressed no remorse or contrition for what had occurred.

86 It is unnecessary for present purposes to refer in detail to the authorities dealing with the sentencing of offenders of advanced years. Even though the prospect of spending the last years of one's life in custody is likely, if not certain, to make the experience significantly more onerous and difficult, the requirement to impose what is a proper sentence in all of the circumstances remains an important consideration.

87 In R v Ceniccola [2011] NSWSC 302 a 72 year old male offender was sentenced to a non-parole period for the violent murder of his elderly neighbour with a shotgun in the context of a dispute over a boundary fence that separated their rural properties. The offence was premeditated and planned and the offender never once expressed or exhibited any remorse for his actions. The shooting occurred on the deceased's property directly outside his kitchen in which the deceased's wife, to the knowledge of the offender, was huddled and in fear for her own safety. Paragraphs [47] - [49] of the remarks on sentence in that case are as follows:

"[47] I regard the offender's age and health as being of particular weight when determining an appropriate non-parole period for this offence relative to the standard non-parole period although a meaningful assessment of the precise nature and extent of the offender's health, compared to any similarly aged male member of the community, suffers from the absence of evidence directed specifically to that issue. So far as his age is concerned, Allen J in Holyoak (1995) 82 A Crim R 502 at 507 commented relevantly as follows:

"It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged of the offender, that he well may spend the whole of his remaining life in custody. A helpful review of the relevant authorities is contained in Braham (1994) 73 A Crim R 353. It is submitted for the applicant that Angel J was correct, in that case, in stating (at 369): 'Where advanced age is a factor justifying significant leniency - and the learned sentencing judge so held in fixing the disproportionate head sentences he did - ex necessitate considerations of ... proportionality of sentencing are irrelevant and the case is an inappropriate vehicle to give voice to general deterrence - as opposed to personal deterrence or deterrence to others of a like age.'

I would not accept, however, that any of those considerations is irrelevant when sentencing a person of advanced age who, albeit generally in good health, has a statistically short expectation of life. Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant. Likewise, the effect of the sentence upon general deterrence is not irrelevant. What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free."

[48] In Barton v Regina [2009] NSWCCA 164 at [24], Giles JA, with whom Howie and Latham JJ agreed had this to say:

"[24] In Goebel-McGregor v R [2006] NSWCCA 390 the applicant was found guilty of murder, and was sentenced to imprisonment for a non-parole period 15 years and a total term of 20 years. The sentence commenced when the applicant was aged 62. James J, with whom Hidden and Hislop JJ agreed, recorded at [126] the submission that the sentencing judge 'having decided that the offence did not call for a life sentence, had imposed a sentence which, having regard to the prisoner's age and life expectancy, was tantamount to a life sentence'. His Honour said of this:

'128 As regards the further submission made by counsel for the appellant, it is true that this Court has said that, if a life sentence is to be imposed, it should be imposed "frankly and directly" and a sentencing court which refrains from imposing a life sentence should not impose a determinate sentence which would have the effect of a life sentence. R v Chen (2003) 138 A Crim R 433 at 444 (67). However, a sentence must reflect the objective seriousness of the offence and when the offender is of advanced years a determinate sentence, in order to reflect the objective seriousness of the offence, may unavoidably extend for all or most of the offender's life expectancy. In Des Rosiers v Regina [2006] NSWCCA 16 Latham J, with whom the other members of the Court agreed, referred with approval at par 30 of her judgment to a statement by Allen J in R v Holyoak (1995) 82 A Crim R 502 at 507...

129 In the present case the appellant was sixty-two years old at the time he committed the offence of murder by what the sentencing judge found to be a cowardly and brutal act. It was inevitable that there would be a real risk of the appellant dying in custody, before he completed serving even the non-parole period of any sentence which adequately reflected the objective seriousness of the offence'."

[49] The age of the offender means that a custodial sentence appropriate in all the circumstances for the murder of the deceased will be likely to see him still in custody at the end of his life. There is no certainty of that but the actuarial probabilities and common experience suggest that it is so. I am bound to take that fact into account but not in a way that derogates from the obligation of a sentencing judge to impose a sentence that adequately reflects the objective seriousness of the offence. The advanced age of the offender is a matter I take into account when determining whether to reduce the standard non-parole period of 20 years and whether or not to vary the statutory ratio of the non-parole and parole periods."

88 In my opinion a head sentence of 27 years with a non-parole period of 18 years for Ms Coulter is an undoubtedly stern and severe sentence. It has been imposed upon an offender who contributed in a calculated and cynical way to the death of an innocent man. I agree in all respects with the sentencing judge's characterisation of the crime. However, I am unable to agree that a non-parole period of imprisonment of 18 years for a 72 year old woman in the particular circumstances of this case is not manifestly excessive. Although there is no evidence upon which to make an accurate assessment about it, common experience suggests that the applicant's age makes it at least likely, if not highly likely, that she will not survive to be released on parole in accordance with the sentence that has been imposed, or that she is likely to be severely diminished both mentally and physically if she does. That fact alone raises the prospect that the traditional and important concepts such as rehabilitation, protection of the community, specific deterrence and the risk of re-offending, as well as the exercise of a discretion to vary the statutory ratio, all acquire a wholly artificial, if not entirely meaningless, character in the context of cases such as this. Whilst I accept that it is necessary to impose a sentence in this case that meets the expectations of the community for general deterrence, punishment and retribution, it is my view that the sentence imposed is nevertheless manifestly excessive and that some other sentence is warranted in law and should have been passed.

89 I would propose the following orders:

1. Dismiss the appeal against conviction.

2. Grant leave to appeal against sentence and allow the appeal.

3. Quash the sentence imposed by Latham J on 21 October 2011 and in lieu thereof sentence the applicant to a term of imprisonment of 20 years with a non-parole period of 14 years commencing on 10 February 2010 expiring on 9 February 2024 with a balance of term of 6 years commencing on 10 February 2024 expiring on 9 February 2030.

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Decision last updated: 29 July 2013