McClellan CJ at CL at [1] Hall J at [50] R A Hulme J at [52]
Decision:
Reason delivered 16 October 2012: 1. Crown appeal dismissed. 2. Respondent's application for leave to appeal dismissed.
Catchwords:
CRIMINAL LAW - Crown appeal - sentence - where sentencing judge categorise each offence as being of similar seriousness - where sentencing judge failed to indicated impact of matters on Form 1 on sentence for particular offences - application of s 53A of Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred in finding that offences were not planned - no error in finding that offences were not planned - whether sentencing judge erred in the manner in which he took into account mental illness of respondent - no error found in approach of sentencing judge to issue of mental illness - whether non-parole period of sentence manifestly inadequate - where non-parole period 21.42% of head sentence - where history of significant mental illness - where effective and appropriate psychiatric treatment requires - where respondent had history of not offending whilst on parole - non-parole period not manifestly inadequate.
Crown (Applicant) Daniel Joseph Nykolyn (Respondent)
Representation
- Counsel:
Counsel: S Dowling (Crown) J Stratton SC (Respondent)
- Solicitors:
Solicitors: Solicitor for Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Respondent)
File number(s):
2011/69304 2011/11800 2011/201186
Decision Under Appeal
- Court / Tribunal:
- Before:
Finnane DCJ
- Date of Decision:
17 February 2012
- Citation:
- Court File Number(s)
2011/693042011/11800
Publication Restriction:
JUDGMENT
McCLELLAN CJ at CL: On 17 August 2012 this Court unanimously dismissed the Crown's appeal against the sentence of the respondent, Daniel Nykolyn. Reasons for the decision to dismiss the appeal were reserved. I set out my reasons below.
The respondent pleaded guilty to the following offences:
1.Break and enter with intent to steal in circumstances of aggravation, contrary to s 113(2) of the Crimes Act1900 (the aggravation pleaded was that the respondent knew that there was a person present within the said dwelling house). The maximum penalty for this offence is 14 years.
2.Break and enter and commit a serious indictable offence, namely stealing, contrary to s 112(1)(a) of the Crimes Act1900. The maximum penalty for this offence is 14 years.
3.Enter dwelling house with intent to commit a serious indictable offence (stealing) in circumstances of aggravation, contrary to s 111(2) of…
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.
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Details
AGLC
R v Nykolyn [2012] NSWCCA 219
Case
[2012] NSWCCA 219
Decision Date
CaseChat Overview and Summary
In the case of R v Nykolyn, the respondent was convicted of multiple offences, leading to a Crown appeal regarding the appropriateness of the sentence imposed. The appeal centred on the sentencing judge’s approach to categorising the offences and the impact of the respondent’s mental illness on the sentencing. The sentencing judge had classified each offence as being of similar seriousness but did not explicitly indicate how matters on Form 1 affected the sentence for each particular offence. This led to a challenge under section 53A of the Crimes (Sentencing Procedure) Act 1999.
The legal issues before the court included whether the sentencing judge erred in determining that the offences were not planned, whether the judge erred in how he accounted for the respondent’s mental illness, and whether the non-parole period of the sentence was manifestly inadequate. The court found no error in the sentencing judge's conclusion that the offences were not planned. Regarding the mental illness, the court concluded that the sentencing judge had not erred in his approach. The court further determined that the non-parole period, which was 21.42% of the head sentence, was not manifestly inadequate, given the respondent's history of significant mental illness, the necessity for effective and appropriate psychiatric treatment, and the respondent's history of not reoffending while on parole.
Ultimately, the Crown appeal was dismissed. The court upheld the original sentence, finding that the non-parole period was appropriate under the circumstances. The detailed consideration of the respondent's mental health history and the effectiveness of the psychiatric treatment were pivotal in this decision. The court did not find any error in the sentencing judge's handling of the mental illness factor or in the overall sentence imposed.