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R v Nykolyn

R v Nykolyn

Case [2003] NSWCCA 229 12 August 2003

Appeal

Sentencing

Breach of Contract

Unconscionable Conduct

Fiduciary Duty

Criminal Law

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CITATION: R v Nykolyn [2003] NSWCCA 229

HEARING DATE(S): 12/8/03

JUDGMENT DATE:
12 August 2003

JUDGMENT OF: Wood CJ at CL at 1, 63; Simpson J at 61; Adams J at 62

DECISION: Orders: (i) Drive in a manner dangerous (s 42(2) Road Transport (Safety and Traffic Management) Act 1999): Appeal allowed. Sentence below quashed. The applicant is sentenced to imprisonment for a fixed term of 4 months, to commence on 8 May 2002; (ii) Drive whilst unlicensed (s 25(1)(a) Road Transport (Driver Licensing) Act 1998: Appeal allowed, sentence of imprisonment quashed. Substitute a fine of 5 penalty units; (iii) Steal motor vehicle (s 154A(1)(a) Crimes Act 1900): Appeal dismissed; (iv) Use offensive weapon to prevent lawful apprehension (s 33B(1)(a) Crimes Act 1900): Appeal allowed and sentence below quashed. The applicant is sentenced to imprisonment for 4 years and 9 months, to commence on 8 May 2002 and to expire on 7 February 2007, with a non-parole period of 2 years and 9 months, to date from 8 May 2002, and to expire on 7 February 2005. The earliest parole release date will be 7 February 2005.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - plea of not guilty - use offensive weapon with intent to prevent lawful apprehension - drive in a manner dangerous - steal motor vehicle - drive whilst unlicensed - whether sentencing judge took proper account of pre-sentence custody - error in assessing maximum penalties - whether sentences imposed were individually and in combination manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - s 33B(1)(a); s 154A(1)(a)
Crimes (Sentencing Procedure) Act 1999 - 24, 47
Criminal Procedure Act 1985 - s 36
Road Transport (Driver Licensing) Act 1998 - s 25(1)(a)
Road Transport (Safety and Traffic Management) Act 1999 - s 42(2)

CASES CITED: R v Doan (2000) 50 NSWLR 115
R v Duke [2000] NSWCCA 403
R v Galati [2003] NSWCCA 148
R v Hamilton (1993) 66 A Crim R 575
R v Hayes [2001] NSWCCA 358
Regina v. Howard [2001] NSWCCA 309
Regina v McHugh (1985) 1 NSWLR 588
R v Paris [2000] NSWCCA 83
R v Phillips & Simpson [2002] NSWCCA 167
R v Readman (1990) 47 A Crim R 181
R v Rushby [1977] 1 NSWLR 594
R v Sainsbury [2000] NSWCCA 496
R v Simon [1999] NSWCCA 418
R v Simpson (2001) 53 NSWLR 704

PARTIES :
Regina
Daniel Anthony Nykolyn

FILE NUMBER(S): CCA 60149/03

COUNSEL: G Rowling (Crown)
H Dhanji

SOLICITORS: S E O'Connor
D J Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/076

LOWER COURT
JUDICIAL OFFICER : Ainslie-Wallace DCJ

- 1 -

WOOD CJ AT CL
SIMPSON J
ADAMS J

Tuesday 12 August 2003

Regina v Daniel Anthony Nykolyn

The applicant seeks leave to appeal against the severity of a sentence which was imposed upon him, namely, a term of imprisonment of six and a half years with an effective non-parole period of three years and seven months. The sentence was composed of one count…

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 R v Nykolyn

Details

AGLC: R v Nykolyn [2003] NSWCCA 229
Case: [2003] NSWCCA 229
Decision Date: 12 August 2003

CaseChat Overview and Summary

In the case of R v Nykolyn, the appellant contested the severity of a sentence imposed by the court following a series of criminal activities. The appellant was charged with using an offensive weapon with intent to prevent lawful apprehension, driving in a manner dangerous, stealing a motor vehicle, and driving while unlicensed. The sentencing judge sentenced the appellant to a term of imprisonment, which the appellant appealed on the grounds that the sentence was manifestly excessive. The appeal raised questions regarding whether the sentencing judge adequately considered the appellant's pre-sentence custody and whether there were errors in the assessment of the maximum penalties for the offences. The court had to determine if the sentences imposed were excessively severe in both individual and cumulative terms.

The primary legal issues revolved around the adequacy of the sentence imposed by the trial judge and whether there were any errors in the calculation of the maximum penalties for the various offences. The appellant's counsel argued that the sentencing judge had failed to take into account the time the appellant had already spent in custody prior to sentencing, which should have been considered in mitigating the severity of the sentence. Additionally, the counsel contended that there were errors in the assessment of the maximum penalties for the various offences, which might have influenced the overall sentence. The court needed to examine whether the sentences were disproportionately harsh and whether the trial judge had appropriately balanced all relevant factors.

The court, in its reasoning, examined the principle that a sentence should not be manifestly excessive in light of the circumstances of the case. It noted that the sentencing judge had considered the appellant's pre-sentence custody, albeit briefly, and determined that this consideration did not significantly mitigate the severity of the sentence. However, the court identified an error in the calculation of the maximum penalties for the offences, which led to an overestimation of the potential sentences. Despite this error, the court concluded that the sentences imposed were not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. The court upheld the appeal in part, reducing the sentence to reflect the correct maximum penalties, but affirmed that the overall sentence remained appropriate.

The final orders of the court were to reduce the appellant's sentence to reflect the correct maximum penalties for the offences, while affirming the appropriateness of the overall sentence. The court's decision highlighted the importance of accurate penalty assessments in sentencing and the need to consider pre-sentence custody in mitigating the severity of the sentence. The reduction in the sentence was a reflection of the error in the penalty calculations, but the court maintained that the sentence was still justifiable given the circumstances.

Orders