Nykolyn v The Queen - [2021] NSWCCA 312

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nykolyn v R [2021] NSWCCA 312
Hearing dates: 20 October 2021
Date of orders: 17 December 2021
Decision date: 17 December 2021
Before: Bathurst CJ [1];
Rothman J [3];
Dhanji J [47]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME – Appeal against sentence – Misapplication of principle – De Simoni – No error – appeal dismissed.

Legislation Cited:
Crimes Act 1900 (NSW) ss 111(2), 112(2), 113(1), 113(2), 117

Cases Cited:
Cassidy v R [2012] NSWCCA 68
Dixon v R [2019] NSWCCA 85
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Taufa v R; Siola’a v R [2020] NSWCCA 264

Category: Principal judgment
Parties: Daniel Joseph Nykolyn (Applicant)
Regina (Respondent)
Representation:
Counsel:
I Nash / W Burton (Applicant)
G Newton (Crown)
Solicitors:
Aboriginal Legal Service (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00377511
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 October 2020

Before:

King SC DCJ

File Number(s):

2019/00377511

Judgment

BATHURST CJ: I agree with the orders proposed by Rothman J and with his reasons.
I also agree with the additional reasons of Dhanji J.
ROTHMAN J: The applicant, Daniel Joseph Nykolyn, seeks leave to appeal the sentence imposed upon him. If leave be granted, the appeal is agitated on the same basis. The application for leave and the appeal were heard concurrently.
On 2 October 2020, the applicant was sentenced in the District Court to an aggregate sentence of 3 years and 1 month, with a non-parole period of 2 years and 3 months, concluding on 28 May 2022. The commencement date of the prison sentence was fixed as the date upon which the applicant was arrested, 29 February 2020, as he had remained imprisoned for these offences since that time.
The applicant was sentenced for two offences: aggravated enter dwelling house with intent to commit a serious indictable offence, contrary to s 111(2) of the Crimes Act 1900 (NSW); and larceny, contrary to s 117 of the Crimes Act. His Honour set out indicative sentences of 2 years and 9 months for the aggravated enter dwelling house and 15 months for the larceny offence.
The maximum sentence available for the aggravated enter dwelling house with intent is 14 years’ imprisonment and the maximum sentence that may be imposed for the larceny is 5 years’ imprisonment. Neither offence has a standard non-parole period.
The applicant seeks leave to appeal, and if leave be granted appeals, the sentence imposed upon him in the District Court. That appeal raises one ground, in the following terms:

“The sentencing judge contravened the principle in The Queen v De Simoni (1981) 147 CLR 383 … by having regard to a ‘breaking’ which was an element of a more serious offence not charged.”

The applicant had pleaded guilty to the charges for which he was ultimately sentenced, which charges were substituted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nykolyn v The Queen

Details

AGLC: Nykolyn v The Queen [2021] NSWCCA 312
Case: [2021] NSWCCA 312
Decision Date: 17 December 2021

CaseChat Overview and Summary

The case of Nykolyn v The Queen involved the appellant, Nykolyn, who appealed against his sentence following a conviction for various criminal offences. The trial judge had imposed a sentence of imprisonment, which Nykolyn argued was excessive and a result of the misapplication of legal principles, particularly in relation to the De Simoni decision. The High Court of Australia was tasked with reviewing the trial judge's sentencing decisions and determining whether the appeal should be upheld.

The primary legal issue before the court was whether the trial judge erred in the application of legal principles when imposing the sentence on Nykolyn. The court examined the principles outlined in De Simoni, which provide guidelines for sentencing judges to consider the seriousness of the offence and the need for deterrence and retribution. The court also assessed whether the trial judge had taken into account the appropriate mitigating and aggravating factors in the sentencing process.

In delivering the judgment, the court found that the trial judge had appropriately applied the principles of sentencing as outlined in De Simoni. The court held that the sentence imposed was not excessive and that the trial judge had properly considered the relevant factors in arriving at the sentence. Consequently, the court dismissed the appeal, finding no error in the sentencing process. The reasoning was based on the comprehensive evaluation of the evidence and circumstances of the case, which supported the trial judge's decision.

The final orders of the court were to dismiss the appeal and affirm the original sentence imposed by the trial judge. The court's decision underscored the importance of correctly applying legal principles in sentencing and reinforced the trial judge's authority in determining an appropriate sentence in criminal cases.

Orders