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Court of Criminal Appeal 12 August 2003

R v Nykolyn

[2003] NSWCCA 229

Assault & violenceTheft & propertyTraffic & drivingPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF NOT GUILTY DRIVE IN A MANNER DANGEROUS STEAL MOTOR VEHICLE DRIVE WHILST UNLICENSED

Citation: R v Nykolyn [2003] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 12 August 2003
Judge(s): Wood CJ at CL, Simpson J, Adams J

Background

The applicant was convicted after a jury trial in the District Court on two principal charges: using an offensive weapon (a motor vehicle) with intent to prevent lawful apprehension, and stealing a motor vehicle. He was also sentenced for two summary offences, dangerous driving and driving whilst unlicensed, to which he pleaded guilty at the sentencing proceedings. All four offences arose from a single incident on 13 February 2001.

The applicant had been on parole at the time of the offences, and his parole was subsequently revoked. He also failed to attend court on the fourth day of his trial and was convicted in his absence, before being re-arrested on 8 May 2002. The Parole Board determined he should serve the balance of his parole from 7 May 2002 to 24 July 2003.

The District Court imposed a total sentence of six and a half years imprisonment with an effective non-parole period of three years and seven months. The applicant sought leave to appeal on the grounds that the sentence was manifestly excessive, both individually and in combination, and that errors had been made in the sentencing process.

  • Whether the sentencing judge had demonstrably taken into account the applicant's pre-sentence custody when imposing sentence
  • Whether the sentencing judge had erred by applying incorrect maximum penalties for the dangerous driving and unlicensed driving offences
  • Whether the sentences for stealing a motor vehicle and using an offensive weapon to avoid apprehension were individually or in combination manifestly excessive

Decision

On the first ground, the Court observed that while the usual practice is to backdate a sentence to account for pre-sentence custody, the relevant legislation (ss 24 and 47 of the Crimes (Sentencing Procedure) Act 1999) does not strictly require backdating. Her Honour had instead reduced the sentence to reflect pre-sentence custody, which was not necessarily an error in itself, though it remained a factor in assessing whether the overall sentence was excessive.

On the second and third grounds, the Crown conceded error. The sentencing judge had treated the maximum penalty for dangerous driving as 18 months imprisonment, when the correct maximum for a first offence was a fine of 20 penalty units or 9 months imprisonment. Similarly, the maximum for driving whilst unlicensed was only 20 penalty units, not 18 months as applied. These errors required correction.

On the fourth ground, the Court found that the sentence for the offensive weapon offence, when assessed against the objective seriousness of the conduct, the need for both general and personal deterrence, the applicant's parole status at the time, and the Judicial Commission's sentencing statistics for the offence under s 33B, fell outside the top of the available range. Combined with the errors on the traffic offences, the Court granted leave to appeal and resentenced across the affected counts. The sentence for motor vehicle theft was left undisturbed.

In fixing the new sentence for the offensive weapon offence, the Court found special circumstances justifying a longer parole period than standard, given the applicant's extensive criminal record and evidence that he had become institutionalised, making supervised reintegration into the community important. All custodial sentences were ordered to be served concurrently.

Orders Made

  • Dangerous driving (s 42(2) Road Transport (Safety and Traffic Management) Act 1999): Appeal allowed; sentence quashed; replaced with a fixed term of 4 months imprisonment commencing 8 May 2002
  • Driving whilst unlicensed (s 25(1)(a) Road Transport (Driver Licensing) Act 1998): Appeal allowed; sentence of imprisonment quashed; replaced with a fine of 5 penalty units
  • Steal motor vehicle (s 154A(1)(a) Crimes Act 1900): Appeal dismissed
  • Use offensive weapon to prevent lawful apprehension (s 33B(1)(a) Crimes Act 1900): Appeal allowed; sentence quashed; replaced with imprisonment for 4 years and 9 months commencing 8 May 2002 and expiring 7 February 2007, with a non-parole period of 2 years and 9 months commencing 8 May 2002 and expiring 7 February 2005

Key Takeaways

  • Applying an incorrect maximum penalty when sentencing constitutes a clear error that can warrant appellate intervention, even where the Crown concedes the point.
  • Under ss 24 and 47 of the Crimes (Sentencing Procedure) Act 1999, pre-sentence custody must be taken into account, but the legislation does not mandate backdating as the exclusive method of doing so; reducing the sentence itself may satisfy the requirement.
  • Where multiple sentencing errors are established, including incorrect maximum penalties and a head sentence outside the available range, the Court of Criminal Appeal will ordinarily resentence across the affected counts rather than merely adjust individual components.
  • Special circumstances justifying a longer parole supervision period can be established by reference to an offender's extensive prior record and evidence of institutionalisation, where those factors point to a greater need for supervised reintegration.
  • In dismissing the appeal on the motor vehicle theft count, the Court confirmed that not every ground of appeal in a multi-count sentence matter will succeed; each count is assessed on its own merits against objective seriousness and relevant sentencing principles.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47
- Criminal Procedure Act 1986 (NSW), s 36
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25(1)(a)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(2)

Cases:
- 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