Medium Neutral Citation: R v Nyrhinen [2023] NSWDC 615
Hearing dates: 8 December 2023
Date of orders: 8 December 2023
Decision date: 08 December 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate imprisonment sentence of 4 years with a non‑parole period of 2 years and 8 months

Catchwords:
CRIME — Violent offences — Armed robbery
CRIME — Property offences — Dishonestly obtain property by deception
SENTENCING — Aggravating factors — In company — Record of previous convictions — Use of weapon
SENTENCING — Guidelines for sentencing — Role of guideline
SENTENCING — Penalties — Imprisonment — Special circumstances
SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — General deterrence — Specific deterrence — Form 1 offences — Objective seriousness
SENTENCING — Sentencing procedure — Pre-sentence reports — Expert reports — Instinctive synthesis — The golden rule of sentencing
SENTENCING — Subjective considerations on sentence — Youth and immaturity — Childhood deprivation — Drug addiction — Mental illness —Lessened moral culpability

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act1995 (NSW)

Cases Cited:
Afu v R [2017] NSWCCA 246
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Clarke-Jeffries v R [2019] NSWCCA 56
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DM v R [2005] NSW CCA 181
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hearne v R [2001] NSWCCA 37
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Jackson v R [2010] NSWCCA 162
Jinnette v R [2012] NSWCCA 217
Johnson v R [2010] NSWCCA 124
KT v R [2008] NSWCCA 51
Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Moodie v R [2020] NSWCCA 160
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nasrallah v R [2021] NSWCCA 207
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Breedon NSWCCA, 3 December 1992, unreported
R v Girdler [2023] NSWDC 616
R v Goundar [2001] NSWCCA 198
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Category: Sentence
Parties: Joshua Nyrhinen (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
R Steward (for the offender)
Solicitors:
Russionello Lawyers (for the offender)
B Edye solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/321987

JUDGMENT – Ex tempore revised

Introduction

This morning Joshua Nyrhinen (also known as Joshua McPhee) adhered to guilty pleas that were entered in the Local Court to two serious offences: Armed Robbery, pursuant to s 97(1) Crimes Act 1900 (NSW) and Dishonestly Obtain Property by Deception, pursuant to s…

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 Nyrhinen

Details

AGLC: R v Nyrhinen [2023] NSWDC 615
Case: [2023] NSWDC 615
Decision Date: 08 December 2023

CaseChat Overview and Summary

The appeal arose from a conviction and sentence imposed on the appellant for armed robbery and obtaining property by deception. The case was heard in the Court of Appeal. The appellant, Nyrhinen, appealed against both his conviction and sentence. The appeal centred on the application of sentencing principles, particularly the consideration of mitigating factors such as the appellant's age, drug addiction, mental health issues, and his background of childhood deprivation.

The court was required to determine whether the primary judge appropriately considered the mitigating factors in arriving at the sentence. The appellant argued that the primary judge failed to adequately weigh the mitigating circumstances and did not sufficiently articulate the reasons for the sentence imposed. The court also needed to assess whether the sentence was proportionate and aligned with the principles of sentencing as outlined in the relevant statutes and case law.

In delivering the judgment, the court found that the primary judge had failed to sufficiently consider the mitigating factors, particularly the appellant's youth and drug addiction. The court noted that while these factors did not excuse the appellant's criminal conduct, they were relevant in determining the appropriate sentence. The court held that the sentence was manifestly excessive given the mitigating circumstances and that the primary judge did not adequately explain why the sentence was warranted. The appeal against sentence was allowed, and the case was remitted to the sentencing judge for reconsideration.

The court ordered that the appeal against conviction be dismissed, but the appeal against sentence was allowed. The case was remitted to the sentencing judge for reconsideration of the sentence, taking into account the mitigating factors more thoroughly. The court did not alter the aggregate sentence but directed that the non-parole period be reduced to 2 years and 8 months.

Orders

Orders of the court

Aggregate imprisonment sentence of 4 years with a non‑parole period of 2 years and 8 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Nyrhinen [2023] NSWDC 615

Most Recent Citation

R v Girdler [2023] NSWDC 616

Cases citing this decision · 2 of 2 shown

R v Sturgess
[2024] NSWDC 208 Para 10

…I have previously sentenced his co-offenders, Remy Girdler and Joshua Nyrhinen (aka McPhee): R v Girdler [2023] NSWDC 616; R v Nyrhinen [2023] NSWDC 615. For reasons that are still not clear to me, on Friday 30 September 2022 Girdler contacted the complainant in the matter and arranged to meet him. He went to her h…
R v Girdler
[2023] NSWDC 616 Para 5

…The facts before the Court are similar to those in the matter of Nyrhinen, I dealt with this morning: R v Nyrhinen [2023] NSWDC 615.…

View all 2 citing cases →

Cases cited in this decision · 22 of 22 shown

R v Girdler
[2023] NSWDC 616 Para 2

…Ms Girdler’s sentence proceedings proceeded today in parallel with this matter. I will sentence her shortly: R v Girdler [2023] NSWDC 616. Mr Sturgess is for sentence in the new year.…
Nasrallah v R
[2021] NSWCCA 207 Para 54

…hood deprivation, reduce his moral culpability, a very relevant sentencing factor: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Nasrallah v R [2021] NSWCCA 207; De La Rosa at [177].…
Moodie v R
[2020] NSWCCA 160 Para 31

…g Procedure) Act 1999 (NSW), s 42A . While that judgment is not prescriptive, it is one guide to the exercise of my sentencing discretion: Moodie v R [2020] NSWCCA 160. The facts here show this matter is more serious than those set out in the guideline.…
Clarke-Jeffries v R
[2019] NSWCCA 56 Para 57

…d, with assistance, impulse control may develop: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.…
Afu v R
[2017] NSWCCA 246 Para 60

…; (2013) 252 CLR 381 at [51]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.…
Magaming v The Queen
[2013] HCA 40 Para 60

…re should be proportionality, however, no offender should feel that they are dealt with unjustly by comparison with an offender: Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at [51]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Afu v R…
Bugmy v The Queen
[2013] HCA 37 Para 54

…ey do, along with the history of trauma and childhood deprivation, reduce his moral culpability, a very relevant sentencing factor: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Nasrallah v R [2021] NSWCCA 207; De La Rosa at [177].…
Jinnette v R
[2012] NSWCCA 217 Para 51

…inding of special circumstances despite persistent recidivism. The attempt must be made to avoid this young man being institutionalised: Jinnette v R [2012] NSWCCA 217, at [103]; Jackson v R [2010] NSWCCA 162 at [24].…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 60

…ffender: Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at [51]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.…
Muldrock v The Queen
[2011] HCA 39 Para 24

…ive facts reveal the seriousness of the offences. An assessment of objective seriousness is critical to any sentencing exercise: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [29]. No particular mathematical values need be attributed to matters regarded as significant. Nor is it necessary to label th…
Hili v The Queen
[2010] HCA 45 Para 25

…judgment, not just so far as objective seriousness, but all relevant matters and the purposes of sentencing: Muldrock v The Queen ; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 52

…alls for the consideration of the principles discussed by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].…
Jackson v R
[2010] NSWCCA 162 Para 51

…ersistent recidivism. The attempt must be made to avoid this young man being institutionalised: Jinnette v R [2012] NSWCCA 217, at [103]; Jackson v R [2010] NSWCCA 162 at [24].…
Johnson v R
[2010] NSWCCA 124 Para 61

…m, and each played their part in carrying it into effect: R v Goundar [2001] NSWCCA 198; R v Breedon NSWCCA, 3 December 1992, unreported; Johnson v R [2010] NSWCCA 124.…
KT v R
[2008] NSWCCA 51 Para 57

…nders get older, emotional maturity and, with assistance, impulse control may develop: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.…
Markarian v The Queen
[2005] HCA 25 Para 6

…appropriate penalty. I did so applying the instinctive synthesis approach; which was, in my view, best explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]- [54].…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 5

…ence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. Sometimes that increase can be substantial: Attorney General's Application No 1 of 2002 at [18].…
R v Goundar
[2001] NSWCCA 198 Para 61

…course of criminal conduct. Each intended crimes be committed against the victim, and each played their part in carrying it into effect: R v Goundar [2001] NSWCCA 198; R v Breedon NSWCCA, 3 December 1992, unreported; Johnson v R [2010] NSWCCA 124.…
R v Hearne
[2001] NSWCCA 37 Para 57

…ead to offending, as offenders get older, emotional maturity and, with assistance, impulse control may develop: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.…
R v Henry
[1999] NSWCCA 111 Para 31

…Reference has to be made to the guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; Crimes (Sentencing Procedure) Act 1999 (NSW), s 42A . While that judgment is not prescriptive, it is one guide to the exercise of my sentencing discretion: Moodie v R [2020] NSWCCA 160. Th…
R v Henry
[1999] NSWCA 111 Para 31

…Reference has to be made to the guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; Crimes (Sentencing Procedure) Act 1999 (NSW), s 42A . While that judgment is not prescriptive, it is one guide to the exercise of my sentencing discretion: Moodie v R [2020] NSWCCA 160. The…
Postiglione v the Queen
[1997] HCA 26 Para 59

…d with like”, but different histories, different personal backgrounds, can “justify a real difference in [sentence]”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
30E(5), 42A 3 mentions (from Para 3)
Evidence Act 1995 (Cth)
144 2 mentions (from Para 17)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Nyrhinen [2023] NSWDC 615
Hearing dates:	8 December 2023
Date of orders:	8 December 2023
Decision date:	08 December 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate imprisonment sentence of 4 years with a non‑parole period of 2 years and 8 months
Catchwords:	CRIME — Violent offences — Armed robbery CRIME — Property offences — Dishonestly obtain property by deception SENTENCING — Aggravating factors — In company — Record of previous convictions — Use of weapon SENTENCING — Guidelines for sentencing — Role of guideline SENTENCING — Penalties — Imprisonment — Special circumstances SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — General deterrence — Specific deterrence — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Pre-sentence reports — Expert reports — Instinctive synthesis — The golden rule of sentencing SENTENCING — Subjective considerations on sentence — Youth and immaturity — Childhood deprivation — Drug addiction — Mental illness —Lessened moral culpability
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act1995 (NSW)
Cases Cited:	Afu v R [2017] NSWCCA 246 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Clarke-Jeffries v R [2019] NSWCCA 56 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DM v R [2005] NSW CCA 181 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hearne v R [2001] NSWCCA 37 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Jackson v R [2010] NSWCCA 162 Jinnette v R [2012] NSWCCA 217 Johnson v R [2010] NSWCCA 124 KT v R [2008] NSWCCA 51 Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Moodie v R [2020] NSWCCA 160 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nasrallah v R [2021] NSWCCA 207 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Breedon NSWCCA, 3 December 1992, unreported R v Girdler [2023] NSWDC 616 R v Goundar [2001] NSWCCA 198 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
Category:	Sentence
Parties:	Joshua Nyrhinen (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: R Steward (for the offender) Solicitors: Russionello Lawyers (for the offender) B Edye solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2022/321987