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District Court 8 December 2023

R v Nyrhinen

[2023] NSWDC 615

Assault & violenceFraud & dishonestyTheft & property

Citation: R v Nyrhinen [2023] NSWDC 615
Court: District Court of New South Wales
Date: 8 December 2023
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to two serious offences committed on 30 September 2022: armed robbery under s 97(1) of the Crimes Act 1900 (NSW), and dishonestly obtaining property by deception under s 192E(1)(a). The offences were committed in company with two co-offenders, Remy Girdler and Tristan Sturgess. Sentence proceedings for Girdler were conducted in parallel (R v Girdler [2023] NSWDC 616), while Sturgess was to be sentenced separately in the new year.

The facts, which were agreed, involved a pre-arranged meeting with the victim at a lookout near Mount Kembla. The offender, while drug-affected, confronted the victim with a knife, forced him into the passenger seat, and directed the victim's own vehicle to Berkeley. During the drive the offender made a phone call describing the situation as a "hostage situation." Once in Berkeley, the victim was taken to a park and coerced, at knifepoint, into transferring $1,464 to an account linked to the offender. The victim was then driven to another address and left without his car, phone, or money. Sturgess had earlier punched the victim in the face, causing bruising and soreness.

The offender had been in custody since his arrest on 27 October 2022. He was 26 years old at the time of sentencing and had a lengthy criminal history, including a prior armed robbery involving a knife for which the District Court had sentenced him in November 2018.

  • Whether the agreed facts, including the Form 1 offence of detaining a person in company with intent to obtain an advantage (s 86(2)(a), Crimes Act), were properly taken into account in setting the sentence for the armed robbery without double-counting
  • The appropriate objective seriousness of the principal offences, including the weight to give the armed robbery guideline judgment (R v Henry)
  • The 25% reduction for the utilitarian value of the early guilty pleas
  • How to weigh substantial mitigating factors, including youth, childhood deprivation, drug addiction, and mental illness, against the need for general and specific deterrence, community protection, and retribution
  • Whether special circumstances existed to justify a longer-than-standard parole period
  • Parity considerations arising from the parallel sentencing of co-offender Girdler

Decision

Objective seriousness and the Form 1 matter

Haesler SC DCJ assessed the principal offences as more serious than the scenarios contemplated in the guideline judgment R v Henry. The offending occurred at night, the victim appeared targeted, a knife was used, the victim was placed in prolonged fear, and he was stripped of his phone, car, and money. Although the offender's drug-affected state was raised as context, the Court found it did not reduce seriousness. To the contrary, a drug-affected man driving a vehicle while holding a knife to the victim represented a heightened danger. The Form 1 detention offence was integral to the surrounding circumstances of the robbery and was taken into account to increase the sentence on the principal offence, consistent with Attorney General's Application No 1 of 2002. The Court was careful to avoid double-counting across the overlapping facts.

Sentencing approach

The Court applied the instinctive synthesis method as explained by McHugh J in Markarian v The Queen, declining to parse individual facts arithmetically or label the offending by an abstract tier. The maximum penalties (20 years for armed robbery, 10 years for the deception offence) were treated as significant reference points. The offender's prior record, including the 2018 armed robbery, not only disentitled him to leniency but also required close attention to community protection.

Mitigating factors

The Court acknowledged a powerful mitigation case. The offender's background included significant childhood deprivation, drug addiction, and mental health issues, all of which contributed to lessened moral culpability in the manner recognised in Bugmy v The Queen. A psychiatric report from Dr Martin (Exhibit 1) was given substantial weight. The offender showed some signs of maturing insight and had not yet become fully institutionalised, although the Court noted a concerning pattern of escalating offending. The 25% discount for the early guilty pleas was applied. Special circumstances were found, producing a longer-than-standard parole period to support rehabilitation through supervision in the community.

Balancing mitigation and punishment

Despite accepting the mitigation, the Court maintained that sentencing courts carry an obligation to protect the community and vindicate the dignity of victims of violence. General and specific deterrence remained significant. The Court ordered that Dr Martin's report accompany the warrant to Corrections to enable implementation of a mental health care plan, and noted the importance of the offender receiving anger management support both in custody and on parole.

Orders Made

  • Aggregate sentence of 4 years' imprisonment, commencing 27 November 2022
  • Non-parole period of 2 years and 8 months, commencing 27 November 2022
  • Eligibility for parole consideration from 26 July 2025
  • Parole period of 1 year and 4 months, commencing 27 August 2025 and expiring 26 November 2026
  • Finding of special circumstances
  • 25% reduction applied to each indicated sentence for the utilitarian value of the guilty pleas
  • Indicated sentence of 3 years and 9 months for the armed robbery (inclusive of the Form 1 matter)
  • Indicated sentence of 1 year and 10 months for dishonestly obtaining property by deception
  • Dr Martin's psychiatric report (Exhibit 1) to accompany the warrant to Corrections

Key Takeaways

  • A Form 1 offence does not result in a separate sentence but can, and in this case did, lead to a meaningful increase in the sentence for the offence to which it relates, particularly where the Form 1 facts are integral to and inseparable from the principal offending.
  • Instinctive synthesis, as applied here, requires the sentencing court to identify all relevant facts and purposes of sentencing holistically, without attributing discrete mathematical values to individual aggravating or mitigating factors or labelling seriousness by abstract tiers.
  • Drug-affected offending does not automatically attract mitigation; in this case the Court found the offender's intoxication made him more dangerous, not less culpable.
  • Substantial subjective matters, including childhood deprivation, mental illness, and drug addiction, carry genuine weight under Bugmy v The Queen but do not displace the purposes of punishment, deterrence, and community protection, particularly where an offender has a pattern of serious violence.
  • A finding of special circumstances adjusted the parole period to allow for extended post-release supervision and support, reflecting the Court's forward-looking concern that rehabilitation required both in-custody and community-based intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 97(1), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 37 (guideline judgments) and Form 1 provisions
- Evidence Act 1995 (NSW), s 144

Cases
- 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
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- 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
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Henry [1999] NSWCCA 111; (1999