Director of Public Prosecutions v Nyikos

[2019] VCC 1095

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00565

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN NYIKOS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	18 July 2019
CASE MAY BE CITED AS:	DPP v Nyikos
MEDIUM NEUTRAL CITATION:	[2019] VCC 1095

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown
For the Accused	Ms J. Clark

HIS HONOUR: 

1New Year's eve is a time for celebration.  Many, especially those with children celebrate in smaller gatherings at home with good friends.  So it was that the victim and his wife and two children went to a friend's house in Ballarat.  The host family also were a husband, wife and two children. 

2Around 7.30 in the evening, the adults were on a patio out the back of the house, cooking the food on the barbeque, enjoying drinks and the company.  The four children were enjoying a game in the front yard.  At that time, and I emphasise that it was just 7.30 pm, you, Sean Nyikos were drunkenly walking along the street, randomly looking in neighbouring mail boxes and removing mail. 

3Seeing the children simply playing in their front yard, somehow annoyed you.  You aggressively yelled at them, wrongly accusing them of having a go at you.  You crossed the road and the children, not surprisingly, ran into the safety of the house and to their parents.  In saying that, of course, the children thought their house was a safe haven from your aggression, but sadly it was not.  The children ran through the house to where the adults were.  They told the adults that there was an angry, crazy man yelling at them out the front. 

4The victim, as he will be described, was the male guest at the house.  The victim thought there was something quite concerning, due to the children appearing so terrified.  The victim went to the front door and saw you were inside the property and at the front door, ranting and banging on that door.  The victim told you to leave and that you could not come inside.  You did not listen to this, but rather punched the leadlight window by the door and then kicked the front door in with considerable aggression.  

5You were in a total and frightening rage as you burst into the house and attacked the victim.  You punched him in the face.  The children were down the hall and could see this attack.  So too could the adults and in particular, the wife of the victim.  All were distressed.  Bravely, the victim managed to restrain you.  Other members of the public passing by on the street were flagged down by the victim's son and they assisted the victim to restrain you.  You responded with more violence and horrid spitting into the victim's face.  You then bit him on the thumb, breaking his skin. 

6The police had been called and when they arrived, you resisted your arrest.  You remained aggressive and violent at the police station, including spitting at a custody officer.  You were taken to the Ballarat Hospital, where you were breathalysed.  The reading was .14 per cent.  After sleeping it off in the hospital and the police cells, you were interviewed at around 10 am the next morning.  You said you had no memory of what you had done, but were apologetic on hearing of your behaviour. 

7The victim's physical injuries included the bite to his thumb, a laceration to his big toe, bruising around his eye, forehead and chest.  The victim had to undergo a blood test for communicable disease at the time and again after six months.  Not surprisingly, in addition to the physical injuries, the victim suffered psychological injury.  Indeed all in the house, including the children, have been adversely affected by your mindless violent conduct. 

8The victim impact statements that have been tendered on this plea, make it clear how frightening the episode was and how enduring are the psychological stresses. 

9The victim said that at first, he was in complete disbelief.  He was, at one moment, enjoying the company of friends in the supposed security of the home and the next minute, he was being physically attacked by a complete stranger 'who had invaded my friend's home'.  He says that he was initially fearful for the physical safety of himself, his family and his friends, but now he is angry for himself, for is family and his friends that the sanctity of their home had been so completely disrespected.  He had difficulty establishing regular sleeping patterns.  He found that he was troubled, both in sleeping and with general anxiousness in the weeks that followed.  He noticed the anxiety in his wife and children and that also caused him to be distressed.  He has continued to be more reluctant than he used to be to put himself in unfamiliar social settings because of the lack of trust of others. 

10This is a sense that all the victims have.  They no longer have the same trust that they did in the community in which they move.  They are hypervigilant.  They should not have to feel this way.  The victim had to give up an important extra job that he did in Ballarat.  He was recompensed for that and that is lost, but also his contribution as someone in the Ballarat community to the board he was on, has been lost to that community and he has lost the enjoyment of it.  He says that he is much warier than he would have been previously, in particular as to allowing his children to participate in social activities with their peers. 

11His wife wrote of her great anxiety and fear when she saw what it was that was happening with her husband being attacked by you.  She was also, as she looks back on it, fearful of what might have happened to the children who just got in the door before your attack.  She spoke of the 'what ifs' and she feels a sense of something she should not, that somehow she could have prevented it.  That is a burden she should not have to carry, nor any of the adults.  What happened at that house is entirely your responsibility and they should not be made to feel, in any way, guilty because of what occurred.  She is also, as
I have said, worried about her children much more than she was before, worried about whether the whole family is safe at home and out and about.  Instead of being relaxed through that summer holiday, it was taken from them, as she was stressed and dealing with the consequences of what you did.  She felt robbed of family time.  She had difficulty herself with her own work and she feels less safe as a result of what occurred and she is hypervigilant around her community. 

12Their young daughter wrote that she found herself getting more nervous and worried about things that she should not, at her age, have worried about.  She said that there have been some things that have enabled her to have a measured view of things.  She is now in a school year she enjoys, but she should not have been exposed to the violence.  She just does not feel as safe as she used to. 

13The hosts themselves wrote of the impact on that horrid night, being such that it greatly disturbed and upset the male host.  He thinks about it every day.  He struggles with anxiety day and night.  He has flashbacks of what played out that night, which turns him angry and simply sad.  He had been diagnosed with
post-traumatic stress, something that he wished he did not have.  He finds it harder to trust and he has lost faith in others.  Since the incident, he says, 'My happy, outgoing nature has been damaged.  This is totally abhorrent and the offending changed me from being a happy person, to somewhat of a person who is on high alert.' 

14His wife, or the female host, says that she has flashbacks of the night and what unfolded.  She describes how the family had to alter the way things worked in the house.  Sleeping in the same room.  The children not able to sleep without their parents for a significant time.  These were teenagers.  She noticed, that is, the mother noticed both her daughter and son are no quite the same as they were before.  She said that, 'Trying to support each other, when everyone of the family was affected, was difficult and there was strains.  We no longer feel the safety and security of each other, as we were all so affected.' 

15She sensed herself becoming more angry and perhaps less tolerant.  She describes not having invited anyone socially to the house for some significant time.  They were doing this on that night and she feels and should not be made to feel, but she feels guilty 'for what our friends and their children were exposed to' at their house.  She has a real sense and I am sure, very insightful, that the innocence of her children has been shattered.  She says that she is not sure if what she has written in her victim impact statement has made clear just what a big impact it has had upon their lives.  She says, 'it has had a big impact.'  She feels different and changed and the family different and changed.  "I don't feel as though things can ever really be the same again and sometimes I'll admit,
I am surprised how far the effect of this incident has gone.' 

16I just pause for a moment.  Judges such as myself and my colleagues have come to learn, vice listening carefully to victim impact statements, that crimes do have a very significantly effect upon people, perhaps more than they thought, it would, more than they think might have when they read about crimes. But when it is in their house, the effect is far-reaching and the courts have come to understand that. 

17The daughter of the hosts speaks about having being scared and frightened and having to sleep with her parents for a significant time.  She says when it first happened, she was horrified and scared, just in case things got worse.  She had to make a statement to the police on video and she did not want to do that.  She now has to see a psychologist to manage nerves and she does get nervous.  She finds people appear now as scary and threatening to her.  She thinks something bad will happen.  "At night time it's hard to sleep, because I think about it and my mind is not thinking about the day in answering schoolwork questions', such things that a child should be able to think about and others. 

18I have, as the Sentencing Act requires, taken into account the effect upon the victim, but be reassured, I have not allowed these matters to simply overwhelm all others.  These are matters kept in balance.  But the gravity of your crimes of aggravated burglary, recklessly causing injury, criminal damage, is, in my view, starkly revealed by the brief descriptions that I have given and that given by the victims thus far. 

19The community is deeply concerned at random home invasions, especially by a drunk and unpredictable violent man.  The fact that you, in effect, chased children into the house, bent on violence and then perpetrated violence before their eyes, adds to the seriousness of your conduct, all in the house, where all were entitled to feel safe and secure.  The sanctity of the family home is important and you comprehensively shattered that sense. 

20Your conduct adds to the community concerns about not feeling safe.  This feeling in our community is corrosive, as people feel less inclined to enjoy the streets of their hometowns, or socialise.  As noted already, the parents here are worried about their children, less inclined to allow them to socialise as teenagers should be able to do.  The violence you used to smash the door is a separate offence, but as referred to in the DPP v Meyer, it is also a factor in assessing the gravity of the offence of aggravated burglary.  Of course I will ensure you are not doubly punished for the separate crime of criminal damage.

21Once in the house, you were immediately and aggressively violent towards a victim, a stranger who justifiably was simply trying to keep you away from the children and others.  Though his injuries were able to be treated appropriately and conservatively and have resolved, the immediate attack upon him reveals your capacity to speedily turn from verbal aggression into physical violence.  Spitting and biting after being restrained also reveals that you can and did resort to dangerous and dreadful behaviour.  All abhor spitting, especially given the risk of disease.  To repeat this at the police station, including, that is, spitting at the custody officer, adds to what must be condemned. 

22Your significant level of intoxication at the time is not mitigatory.  It is not anywhere near an excuse, that you were drunk and cannot remember what you did.  Your intoxication made you more unpredictable and thus dangerous.  You have been made aware of how you react violently when drunk, as I was told that your previous convictions for violence against your ex-partner had alcohol in the background.  Thus your intoxication is a more concerning aspect of your offending and is not, in any sense, mitigatory.

23On any analysis of your offending, especially the aggravated burglary, was serious conduct.  That crime of aggravated burglary is considered a grave one, as reflected in Parliament's decision to set the maximum term at the second highest level available to the courts at 25 years, only exceeded by a maximum term of life imprisonment.  As I will make clear, these crimes call for significant weight to be given to denunciation, deterrence and protection of the community.  In this regard, your rehabilitation is not ignored, but it must yield to the other sentencing purposes. 

24As to your personal circumstances, you are now 27.  You were raised as an only child by your mother, who you acknowledged did a good job in difficult circumstances.  Your mother left your father before you were born, due to his violence towards her.  You met him again at age 18.  He was then a drug addict and ultimately behaved aggressively in the short time he lived with you and your mother.  He died of a drug overdose shortly after.

25Apart from a period of three or so years when you were in an important relationship, you have lived with your mother and plan to do so again upon your release.  She is obviously important to you, as are her parents, that is, your grandparents.  Her support for you gives greater hope for your rehabilitation. You also had a close uncle, but unfortunately he passed away about six years ago. 

26As a child, you were not keen on school and you gave up at Year 10.  You have had some short-term stints of employment in the building industry.  You plan to take up opportunities for work in this industry upon your release, these opportunities being an offer from your extended family.  Again, it is for you to apply yourself once you are released to take these matters up. 

27You did not commit any crimes until in your mid-20s, however, in early-2017, you were before the Magistrates' Court in Ballarat for similar violent offences, including violence to police and emergency workers.  You were gaoled for a short time, being the time that you were on remand before being released on bail and in addition to the gaol term, this was combined with a community corrections order, designed to assist you with your significant problem with alcohol and your mental health. 

28It seems, within a short time you were back before the Magistrates' Court again for criminal damage and assault, receiving another 12 month community corrections order.  As I have indicated, these crimes occurred in the context of the breakdown of your relationship.  Thus it was that you were on a community corrections order at the time of this offending.  It seems that you did not take up those opportunities that were given to you to change and reform.  The fact that you were on a community corrections order at the time adds to the seriousness of the offending.

29The offences that you were before the Magistrates' Court, as I have indicated, were directed at your previous partner.  You did not, it seems, deal well with the end of the relationship.  However, I am told that you are on good terms now.  You have a child who is about three years.  Your ex-partner brings her to see you in the prison and you want to properly reconnect with the child in the future.

30You have had a long-term problem with alcohol.  You drank every day, mostly alone and during the day.  You acknowledge now that your drinking problem is entrenched.  To your credit, you now attend AA meetings in the prison.  You are doing all you can in prison to keep active and improve yourself.  You have told your lawyers that you have decided that you must abstain from alcohol upon release.  That is wise and an important first step in your ultimate reform.  Staying off alcohol, once you are released in the community and exposed to it, will be the test. 

31The report of the psychologist that was engaged to see you was direct and helpful and I have taken into account all that was set out in that report.  She was not sure of your previous diagnosis of bipolar disorder, but her tests and clinical observations certainly established that you have suffered depression for some time.  The mood swings and anger that you spoke to her about, led her to consider that you have a personality disorder.  She recommended ongoing psychological treatment, both in the form of mood-stabilising medication and specific behavioural therapy. 

32In prison you remain on the significant anti-psychotic medication that you were prescribed from 2018 by your general practitioner.  It is important that you take up psychological therapies and remain on what medication that you are prescribed upon release.  I should add that you have used cannabis for some time and this has been a long-standing problem.  Mr Nyikos, it must stop if your mental health is to stabilise and improve. 

33Overall your prospects of rehabilitation have positive aspects.  Important to this and to mitigation generally, is that you do appreciate the dreadful impact of what you did, on all the victims.  I take your remorse to be genuine.  Your plea of guilty is also evidence of remorse.  The plea of guilty has other important aspects, utilitarian and other aspects relating to taking responsibility.  All these matters related to your plea and your remorse are mitigatory and your sentence will be less than otherwise because of your plea.

34In your counsel's well-considered plea, she conceded that there is only one option, imprisonment, grave as that always is.  I must ensure that your punishment is proportionate to the totality of your crimes and in particular, that you are not doubly punished for what you did to get in the house and then what you did once you were in it. 

35The sentencing purposes that are most prominent are denunciation of your frightening violent crimes.  This denunciation must not just be in my words, but also in the practical sense of punishment, just deserts for what you did, being imprisonment.  I must ensure your sentence operates to deter others who might be minded to invade the sanctity of a house, bent on violence.  I can achieve that purpose only by making it clear in my sentence that those who commit such crimes, will face stern sentences of imprisonment. 

36I must give some weight to deterrence to you, given your limited but recent prior crimes, where you were given a chance, which you did not take up, crimes that involve violence towards a vulnerable person, your ex-partner. 

37Your rehabilitation, as I have said, remains important.  You are still in your 20s, but as noted, your rehabilitation must yield to other sentencing purposes.  I have indicated that there is some prospects for you, but it is entirely up to you.

38I will allow for the potential for parole while still sentencing you on the basis that you may have to do every day of the head sentence that I fix.  A grant of parole, if any, is for others, not me.  For my part I consider that you will need considerable support on your release, apart from your family, which will be best provided by the parole system.

39I have considered appellate decisions in other cases regarding, in particular, aggravated burglary.  I must ensure that I appropriately apply the appellate guidelines and points of principle, however, I must always ensure that I deal with the unique circumstances and facts of this case and you as the offender. 

40Can you please stand, Mr Nyikos.

41Doing the best I can, I impose the following sentences:

42For the crime of aggravated burglary, you and sentenced to be imprisoned for four years and six months.

43For the crimes of recklessly causing injury, you are sentenced to 12 months' imprisonment. 

44For the crime of criminal damage, you are sentenced to four months' imprisonment.

45For the assault upon the emergency officer, you are sentenced to four months' imprisonment.

46I order that six months of Charge 2, the injury charge; one month of Charge 3, the criminal damage; and two months of the assault the emergency officer, be cumulative upon each other and upon the base sentence, being the aggravated burglary.

47My mathematics tells me that that is five years and three months is the total effective sentence and I fix a minimum non-parole period of three years and three months.

48Had you pleaded not guilty to these offences, I would have imposed a sentence of seven years, with a minimum of five.

49I have been told that you have done 199 days since you were on remand.  That 199 days, having been reckoned.  I now declare that it is part of the sentence that I have just imposed.  I will ensure that that declaration is entered into the records of this court, so the prison authorities are left in no doubt that you have already done 199 days of the sentence I have just imposed.

50Are there any other orders, Mr Brown?

51COUNSEL:  No, Your Honour.

52HIS HONOUR:  Is the mathematics correct?

53MS CLARK:  Yes, Your Honour. 

54HIS HONOUR:  Thank you.

55MS CLARK:  In my opinion. 

56HIS HONOUR:  Mr Brown?

57MR BROWN:  Yes. 

58HIS HONOUR:  Thank you very much.  There is nothing further. 

59I just say this, that I normally say at the outset to the victims that I do not intend to use their names, because the sentence that I have just - or the reasons for the sentence will be available publicly, as the courts are open and transparent in trying to educate everyone about what we do.  And I think it is important that the privacy of the victims be kept - to be respected, so the fact that I did not name any victims, not because I do not know them, or know their names, it was out of respect for them, not the opposite.  Ultimately, the sentence that I have - or the reasons for sentence that I have just articulated will be available, but will only identify them in that way.  Likewise, no addresses and the like will be noted. 

60Is there anything further? 

61MR BROWN:  No, Your Honour.

62HIS HONOUR:  Thank you.

63HIS HONOUR:  Ms Clark, thank you very much for your considerable assistance, as usual, at pretty short notice by the look of it. 

64Mr Nyikos, the people that have come to support you are important to you, no doubt, but the court itself is not - there are no facilities or the like for them to spend any time with you here, you simply have to go back to the prison and they will see you when they can.  So you now head back downstairs. 

65I thank Mr Brown for his assistance. 

66Just adjourn the court.

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