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24
Court of Criminal Appeal 17 August 2012

R v Nykolyn

[2012] NSWCCA 219

Theft & property
CRIMINAL LAW CROWN APPEAL SENTENCE WHETHER NON WHERE NON PAROLE PERIOD 21.42% OF HEAD SENTENCE

Citation: R v Nykolyn [2012] NSWCCA 219
Court: Court of Criminal Appeal
Date: 17 August 2012
Judge(s): McClellan CJ at CL; Hall J; R A Hulme J

Background

The respondent pleaded guilty in the District Court to four serious residential break-and-enter offences committed over several days in February and March 2011, along with additional offences taken into account on two Form 1 documents. The offences included aggravated entries into occupied dwellings, one occurring while the occupant was present working at her computer, and another in the early hours of the morning while a resident was asleep.

The sentencing judge imposed an aggregate sentence of 7 years imprisonment with a non-parole period of only 18 months, representing approximately 21 per cent of the head sentence. The sentencing judge's primary reasons for the abbreviated non-parole period were the respondent's longstanding and serious mental illness (chronic schizophrenia), his need for rehabilitation, and a view that appropriate psychiatric treatment could best be provided in the community.

The Crown appealed, contending on five grounds that the sentence was infected by legal error and that the non-parole period was manifestly inadequate.

Legal Issues

  • Whether the sentencing judge erred by treating each of the four offences as being of similar seriousness without differentiation
  • Whether the sentencing judge failed to properly take into account the offences listed on the Form 1 documents, and whether that failure was saved by section 53A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in finding the offences were unplanned
  • Whether the sentencing judge erred in the manner in which he gave weight to the respondent's mental illness
  • Whether the non-parole period of 18 months was manifestly inadequate

Decision

Ground 1 and Ground 2 (similar seriousness and Form 1 offences):
The Court accepted that the sentencing judge had made errors. His Honour treated each offence as equally serious without differentiation, and failed to indicate how the Form 1 matters affected the individual sentences, as required by section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999. However, section 53A(5) expressly provides that an aggregate sentence is not invalidated by a failure to comply with section 53A. The failure to comply, though erroneous, did not invalidate the sentence or alone require intervention.

Ground 3 (planning):
The Court rejected the Crown's submission that the sentencing judge was wrong to describe the offences as unplanned. The respondent had worn gloves and selected a property in Randwick partly because it had no security cameras, but the Court found this conduct reflected no more than a general intention to rob suitable premises as they were found. The respondent had not specifically targeted any particular address or organised himself beyond that. No error was established in the sentencing judge's characterisation.

Ground 4 (mental illness):
The Court confirmed the established principles governing the sentencing of offenders with mental illness, as summarised in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. Where mental illness materially contributes to offending, it may reduce moral culpability, reduce the weight given to general and specific deterrence, and make custody more onerous. The Court found the evidence did not establish that the respondent's substance abuse had "triggered" his schizophrenia: he was diagnosed in 2004 and reported first using methylamphetamine in 2007. No error was found in the sentencing judge's approach to mental illness.

Ground 5 (manifest inadequacy of non-parole period):
The Court acknowledged the non-parole period was undoubtedly lenient, at only 21 per cent of the head sentence compared to the statutory ratio of 75 per cent. However, a majority found it was not manifestly inadequate requiring appellate intervention. The respondent had not reoffended during his previous parole period, suggesting that community supervision had been an effective disincentive. The sentencing judge was entitled to conclude that effective psychiatric treatment was better delivered in the community and that a lengthy parole period would provide continued supervision with the incentive of recall to prison if the respondent reoffended. Hulme J noted additionally that the appeal was heard only two weeks before the respondent was due to become eligible for release, and that he had been accepted into a residential rehabilitation program at Odyssey House, with release on parole recommended by a Probation and Parole Officer. This was a powerful factor supporting dismissal in the exercise of the Court's residual discretion, even if the non-parole period had been erroneous.

Orders Made

  • Crown appeal dismissed
  • Respondent's application for leave to appeal dismissed

Key Takeaways

  • Under section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge imposing an aggregate sentence must indicate the sentence that would have been imposed for each individual offence. A blanket assessment treating all offences as equally serious, without accounting for differences in circumstances or Form 1 matters, does not properly satisfy this obligation.

  • Section 53A(5) provides an important saving provision: a failure to comply with section 53A does not invalidate an aggregate sentence, even where the judge's reasoning was inadequate.

  • Hulme J identified four purposes served by proper compliance with section 53A(2)(b): it aids application of the totality principle; it exposes the sentencing reasoning to appellate review; it communicates to victims and the public the court's assessment of each offence's seriousness; and it assists the Court of Criminal Appeal in re-sentencing if one or more underlying convictions are later quashed.

  • Where an offender suffers from serious and longstanding mental illness such as chronic schizophrenia, a sentencing court may legitimately reduce the weight given to general and specific deterrence, and may impose a significantly shorter non-parole period to facilitate community-based treatment and supervision, provided the approach remains within the boundaries of sentencing discretion.

  • In dismissing a Crown appeal against a non-parole period, the Court of Criminal Appeal may take into account, through its residual discretion, the proximity of an offender's parole eligibility date and evidence of acceptance into a residential rehabilitation program as factors weighing against resentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Pawnbrokers and Second Hand Dealers Act 1996
- Crimes (Sentencing Procedure) Act 1999
- Crimes (Sentencing Procedure) Amendment Act 2010
- Crimes (Sentencing Procedure) Amendment Bill 2010

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1
- FP v R [20120] NSWCCA 182
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- R v Brown [2012] NSWCCA 199