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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: NSW 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 to four offences of break, enter and steal (or enter with intent to steal), all involving residential premises in inner Sydney in late February and early March 2011. Several offences were aggravated because the respondent knew occupants were present at the time. Additional related offences, including disposal of stolen property and custody of unlawfully obtained goods, were listed on two Form 1 documents taken into account during sentencing.

The sentencing judge imposed an aggregate sentence of seven years imprisonment with a non-parole period of 18 months. The Crown appealed, contending the sentence was the product of multiple errors and that the non-parole period was manifestly inadequate. The respondent also sought leave to appeal his sentence.

The respondent had a significant history of mental illness, which featured prominently in the sentencing proceedings and in the appeal arguments.

  • Whether the sentencing judge erred in finding the offences were not planned
  • Whether the sentencing judge erred in the approach taken to the respondent's mental illness as a sentencing consideration
  • Whether the non-parole period of 18 months (approximately 21.42% of the head sentence) was manifestly inadequate
  • Whether the sentencing judge adequately complied with the obligation under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 to indicate the sentence that would have been imposed for each individual offence

Decision

The Court of Criminal Appeal unanimously dismissed the Crown appeal. On the question of planning, the Court found no error in the sentencing judge's assessment. While the respondent had selected targets opportunistically and shown some deliberateness, the judge's conclusion that the offences were not planned in an aggravating sense was not shown to be wrong.

On mental illness, the Court also found no error in the sentencing judge's approach. The respondent's significant psychiatric history was a relevant factor that legitimately affected the sentence, particularly in assessing moral culpability and the purposes of punishment.

On manifest inadequacy, the Court, while acknowledging the non-parole period was undoubtedly lenient, held it did not fall outside the range of the sentencing discretion given the respondent's mental illness and the rehabilitative treatment it required. Hulme J added that even if the non-parole period were considered erroneous, the Court would have exercised its residual discretion to dismiss the appeal: the hearing took place only two weeks before the respondent was due to be considered for parole release into a residential rehabilitation program at Odyssey House, recommended by his Probation and Parole Officer.

Hulme J (with Hall J agreeing) also took the opportunity to address the sentencing judge's approach to s 53A(2)(b), which requires a court imposing an aggregate sentence to indicate what sentence would have been imposed for each individual offence. The judge had stated only that each offence was of "similar seriousness" and each would have attracted a four-year sentence. Hulme J described this as "paying lip service" to the requirement, noting in particular that two of the counts carried additional Form 1 matters, which ought to have produced different individual sentences. Proper compliance with s 53A(2)(b) serves at least four functions: applying the totality principle, enabling appellate review, informing victims and the public, and facilitating re-sentencing if a conviction is quashed on appeal.

Orders Made

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

Key Takeaways

  • A non-parole period representing approximately 21% of a head sentence is not automatically manifestly inadequate: where significant mental illness requires sustained rehabilitative treatment and the offender has a history of not reoffending while on parole, such a period may remain within the permissible sentencing range.
  • No error was established in treating mental illness as a mitigating factor affecting both moral culpability and the weight given to punitive sentencing purposes.
  • Under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court imposing an aggregate sentence must indicate the sentence that would have been imposed for each offence individually. Applying a blanket assessment that assigns identical sentences to all offences, particularly where Form 1 matters apply to only some counts, is likely to fall short of that obligation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that it may exercise a residual discretion to decline to resentence even where a non-parole period is arguably erroneous, particularly where release on parole is imminent and an appropriate rehabilitation plan is in place.
  • Proper compliance with the indicative sentencing requirement in s 53A(2)(b) serves four distinct purposes: assisting the totality assessment, enabling appellate scrutiny, providing transparency to victims and the public, and facilitating resentencing if individual convictions are later quashed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 112(1)(a), 113(2), 114(1)(d), 189, 527C(1)(a)
- Pawnbrokers and Second Hand Dealers Act 1996 (NSW), s 15(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)

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