R v Nyrhinen

Case [2023] NSWDC 615


District Court


New South Wales

  • Amendment notes
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

  1. 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…

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Details
AGLC
R v Nyrhinen [2023] NSWDC 615
Case
[2023] NSWDC 615
Decision Date

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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