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Court of Criminal Appeal 17 December 2021

Nykolyn v R

[2021] NSWCCA 312

Assault & violenceTheft & property
CRIME APPEAL AGAINST SENTENCE MISAPPLICATION OF PRINCIPLE DE SIMONI NO ERROR APPEAL DISMISSED.

Citation: Nykolyn v R [2021] NSWCCA 312
Court: NSW Court of Criminal Appeal
Date: 17 December 2021
Judge(s): Bathurst CJ, Rothman J, Dhanji J

Background

The appellant had originally been charged with aggravated break and enter a dwelling house and commit a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment. Following negotiations between the prosecution and defence, the charge was replaced with two lesser offences: aggravated enter dwelling house with intent to commit a serious indictable offence (s 111(1)(2), maximum 14 years) and larceny (s 117, maximum 5 years). The appellant pleaded guilty to both substituted charges.

The offending involved entering a ground-floor unit in Waterloo in the early morning hours and stealing a handbag, laptop, and mobile phone from a sleeping occupant. Police traced the stolen phone using a tracking application and arrested the appellant nearby, in possession of the stolen property.

In the District Court, the appellant was sentenced to an aggregate term of 3 years and 1 month, with a non-parole period of 2 years and 3 months. He then sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had impermissibly taken into account conduct amounting to an element of the more serious original charge.

  • Whether the sentencing judge contravened the principle in R v De Simoni (1981) 147 CLR 383 by having regard to a "breaking," which is an element of a more serious offence that was not before the court for sentencing.
  • Whether certain references to "breaking" and "breaking into the house" in the sentencing remarks, including a passage drawn from a psychiatrist's report, demonstrated that the sentence in fact reflected the more serious charge under s 112(2).

Decision

The Court of Criminal Appeal unanimously dismissed the application for leave and the appeal. All three judges agreed that the sentencing remarks, read in context, did not disclose any breach of the De Simoni principle.

Rothman J, delivering the primary reasons, noted that the sentencing judge had accurately identified the two offences and their respective maximum penalties at the outset of the sentencing remarks. The reference to "a breaking up of the original charge" appeared in the section of the remarks concerned with the history of the proceedings, and was relevant only to whether the guilty pleas had been entered at the earliest practicable time. It did not reflect an assessment of the criminality involved in the offences actually before the court.

Regarding the references to "breaking into the house" in the psychiatrist's report and in the judge's recitation of that report, Rothman J found that these arose because the psychiatric assessment had been obtained at a time when the appellant still faced the more serious charge. The references were therefore an artefact of the timing of the report, not an indication that the sentencing judge was treating a "breaking" as an aggravating feature of the offences charged.

Dhanji J added that, in the absence of any evidence before the court capable of establishing a "breaking," the appellant's task was inherently difficult. His Honour concluded that the reference to "breaking" in the sentencing remarks was no more than a slip, and that nothing in the reasons as a whole supported the inference that the judge had sentenced the appellant for an offence more serious than those charged.

Orders Made

• Leave to appeal be granted
• Appeal be dismissed

Key Takeaways

  • The De Simoni principle prohibits a sentencing court from taking into account circumstances of aggravation that would have warranted a conviction for a more serious offence than the one charged, but it does not prevent a court from considering all conduct of the accused that does not elevate the offending to a more serious category.
  • Isolated references to elements of a more serious uncharged offence in sentencing remarks do not automatically establish a De Simoni breach; the remarks must be read as a whole, including the accurate identification of the charges and applicable maximum penalties.
  • Where a psychiatric report was obtained while a defendant faced a more serious charge, later references in that report to elements of that charge (such as "breaking") do not necessarily indicate error by the sentencing judge who recites the report at a later, reduced sentencing.
  • No error was established on appeal where the sentencing judge's references to "breaking" were confined to the procedural history of the matter and to a recitation of a pre-existing psychiatric report, rather than to any assessment of the objective criminality of the offences being sentenced.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the threshold for demonstrating a De Simoni error is not met by ambiguous language alone, particularly where no facts supporting the more serious offence were before the court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 112(2), 113(1), 113(2), 117

Cases
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Cassidy v R [2012] NSWCCA 68
- Dixon v R [2019] NSWCCA 85
- Taufa v R; Siola'a v R [2020] NSWCCA 264