R v Nylander

Case [2003] SASC 191

R v NYLANDER
[2003] SASC 191

Court of Criminal Appeal:  Prior, Bleby and Sulan JJ

  1. PRIOR J:              I agree with Justice Bleby.  The appeals against conviction should be dismissed.  The appeal against sentence should be allowed and a sentence of 26 years imprisonment with a non-parole period of 20 years substituted for that imposed by the single Judge.  The substituted sentence and non-parole should date from 20 September 2000.

    BLEBY J:

    Introduction

  2. The appellant, Mr Harry Nylander, was initially charged on one information with four counts of armed robbery and two counts of shooting with intent to do grievous bodily harm.  The armed robbery offences were alleged to have been committed on 9 February 1996 at the Westpac Branch at Wayville, on 12 August 1999 at the ANZ Branch at Kent Town, on 31 December 1999 at the same ANZ Branch at Kent Town, and on 12 May 2000 at the ANZ Branch at Walkerville.

  3. The shooting offences were alleged to have been committed on 16 August 2000 at Brompton.  The alleged victims were both police officers.

  4. The trial Judge, after hearing argument on the matter, ordered the severance of the shooting charges, thus separating the trial of the shooting with intent charges (the “shooting trial”), from the trial of the armed robbery charges (the “robbery trial”).  The trials followed each other in close succession, the robbery trial being heard first.

  5. Separate juries found the appellant guilty of all six counts. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 the trial Judge imposed a single sentence of 32 years imprisonment in respect of all six offences, and fixed a non-parole period of 24 years. The appellant now appeals against those convictions and the sentence imposed.

    The Facts

  6. In view of some of the issues that need to be resolved on this appeal it is necessary to summarize the evidence led for the prosecution in both trials and for the defence in the shooting trial.

    Evidence of armed robberies led at the robbery trial

  7. There were a number of elements common to each of the four armed robberies of which the appellant was convicted.  On each occasion the offender wore a peaked cap similar to a baseball cap and a black stocking pulled over his face as a mask.  The offender in each case was armed with a handgun, being on some occasions a revolver and on another a semi-automatic pistol.  The offender demanded cash from the bank tellers.  At each bank the offender was photographed by security cameras, and in all cases used a can of spray paint to spray over the lens of the camera before leaving.  Prior to spraying the lenses, the offender forced all persons present to either get on the floor face down, or turn away and face a wall.  In total, approximately $30,000 was stolen from the banks. Eye witnesses were able to provide a general description of the offender.

    The events of 16 August 2000

  8. Evidence was led at both the…

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R v Nylander [2003] SASC 191
Case
[2003] SASC 191
Decision Date

CaseChat Overview and Summary

In the Supreme Court of South Australia, the appellant appealed against convictions and sentences for six offences, including four counts of armed robbery and two counts of assault with intent to rob. The trial judge imposed a sentence of 32 years imprisonment, with a non-parole period of 24 years. The central issue before the court was whether the evidence was sufficient to uphold the convictions, particularly given the appellant’s alibi defence and the reliability of identification evidence. The court also had to consider whether the sentence was appropriate given the nature and circumstances of the offences.

The court examined the evidence led in both the robbery and shooting trials, noting the similarities in the modus operandi of the robberies and the appellant’s distinctive appearance during the crimes. The court assessed the reliability of the eyewitness identifications, weighing the opportunity for observation, the distinctiveness of the appellant's features, and the consistency of the descriptions provided. The court found that the identification evidence was reliable and corroborated by other evidence, including the appellant's possession of adhesive tape and the bulge in his clothing, which suggested the presence of a weapon. The court also considered the appellant's flight from the police and his subsequent apprehension, which supported the inference of guilt.

In its reasoning, the court held that the evidence was sufficient to uphold the convictions beyond reasonable doubt. The court found that the identification evidence, when considered with the other circumstances, was compelling. The court also found that the sentence was not excessive given the seriousness of the offences, the need for deterrence, and the appellant's criminal history. The appeal was therefore dismissed, and the convictions and sentences were upheld.

Orders

Orders of the court

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Background

Background to the litigation

Separate juries found the appellant guilty of all six counts. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 the trial Judge imposed a single sentence of 32 years imprisonment in respect of all six offences, and fixed a non-parole period of 24 years. The appellant now appeals against those convictions and the sentence imposed.The Facts In view of some of the issues that need to be resolved on this appeal it is necessary to summarize the evidence led for the prosecution in both trials and for the defence in the shooting trial.Evidence of armed robberies led at the robbery trial There were a number of elements common to each of the four armed robberies of which the appellant was convicted. On each occasion the offender wore a peaked cap similar to a baseball cap and a black stocking pulled over his face as a mask. The offender in each case was armed with a handgun, being on some occasions a revolver and on another a semi-automatic pistol. The offender demanded cash from the bank tellers. At each bank the offender was photographed by security cameras, and in all cases used a can of spray paint to spray over the lens of the camera before leaving. Prior to spraying the lenses, the offender forced all persons present to either get on the floor face down, or turn away and face a wall. In total, approximately $30,000 was stolen from the banks. Eye witnesses were able to provide a general description of the offender. The events of 16 August 2000 Evidence was led at both the robbery and the shooting trials of an incident which occurred on 16 August 2000, which would eventually lead to the appellant’s apprehension by the police some time later. On 16 August, two police patrol officers went to a section of the median strip on Port Road at Hindmarsh after a member of the public had reported that a man was seen to be acting suspiciously there over a number of days. Two banks were near the vicinity of the median strip. The officers approached the appellant, who was sitting on a park bench facing the city bound carriageway of Port Road. They observed that the appellant was wearing sunglasses and a cloth cap similar to a baseball cap. Both officers noticed that the underside of the appellant’s fingers, thumbs and palms was completely covered with a skin coloured medical type adhesive tape. They also noticed a bulge at the back of the appellant’s clothing at waist level. The officers spoke with the appellant, who gave his name as John Graham Palmer of 8/68 Bower Street, Woodville, and his date of birth of 7 February 1949. The appellant said that a friend had dropped him off in a car, and that he had left his identification in that car. The officers returned to their car. The appellant left the scene on foot and proceeded towards an area behind buildings on the eastern side of Port Road, where he was seen by witnesses to run away from Port Road. The officers, having decided to see where the appellant had gone, drove to an area east of Port Road, where they observed the appellant driving a blue Nissan in the opposite direction. The officers began to follow the appellant’s vehicle, at which stage it sped off. The officers followed the appellant’s vehicle to the end of Pens Close, a cul-de-sac, where the appellant was found outside the car, squatting at the open driver’s door.

Evidence

Evidence Before The Court

In view of some of the issues that need to be resolved on this appeal it is necessary to summarize the evidence led for the prosecution in both trials and for the defence in the shooting trial.Evidence of armed robberies led at the robbery trial There were a number of elements common to each of the four armed robberies of which the appellant was convicted. On each occasion the offender wore a peaked cap similar to a baseball cap and a black stocking pulled over his face as a mask. The offender in each case was armed with a handgun, being on some occasions a revolver and on another a semi-automatic pistol. The offender demanded cash from the bank tellers. At each bank the offender was photographed by security cameras, and in all cases used a can of spray paint to spray over the lens of the camera before leaving. Prior to spraying the lenses, the offender forced all persons present to either get on the floor face down, or turn away and face a wall. In total, approximately $30,000 was stolen from the banks. Eye witnesses were able to provide a general description of the offender. The events of 16 August 2000 Evidence was led at both the robbery and the shooting trials of an incident which occurred on 16 August 2000, which would eventually lead to the appellant’s apprehension by the police some time later. On 16 August, two police patrol officers went to a section of the median strip on Port Road at Hindmarsh after a member of the public had reported that a man was seen to be acting suspiciously there over a number of days. Two banks were near the vicinity of the median strip. The officers approached the appellant, who was sitting on a park bench facing the city bound carriageway of Port Road. They observed that the appellant was wearing sunglasses and a cloth cap similar to a baseball cap. Both officers noticed that the underside of the appellant’s fingers, thumbs and palms was completely covered with a skin coloured medical type adhesive tape. They also noticed a bulge at the back of the appellant’s clothing at waist level. The officers spoke with the appellant, who gave his name as John Graham Palmer of 8/68 Bower Street, Woodville, and his date of birth of 7 February 1949. The appellant said that a friend had dropped him off in a car, and that he had left his identification in that car. The officers returned to their car. The appellant left the scene on foot and proceeded towards an area behind buildings on the eastern side of Port Road, where he was seen by witnesses to run away from Port Road. The officers, having decided to see where the appellant had gone, drove to an area east of Port Road, where they observed the appellant driving a blue Nissan in the opposite direction. The officers began to follow the appellant’s vehicle, at which stage it sped off. The officers followed the appellant’s vehicle to the end of Pens Close, a cul-de-sac, where the appellant was found outside the car, squatting at the open driver’s door. At the robbery trial, the evidence of the remainder of this incident was that the police officers alighted from their vehicle and that as they did so the appellant, holding a black coloured pistol, stood up, shouted something and moved closer to them.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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