Nykolyn v R

Facts

1. The sentence imposed by the District Court was based upon agreed facts and the circumstances of the offending were not in dispute. The offence in question occurred in Waterloo.
2. The victim and two of her three children lived in a three-bedroom ground floor unit. The victim's third child, Veronica, stayed at the unit from time to time.
3. On 29 November 2019, at or about 5:25 AM, the victim arose and, shortly thereafter, left for work. Between 7:07 AM and 7:50 AM on that date, Veronica, who on this occasion was staying at the unit, woke as a result of hearing the sound of items being moved in her bedroom.
4. Veronica saw the offender crouched down next to her bed, rummaging through her belongings, before running from the unit. Veronica noticed the following property was missing: a Calvin Klein handbag and contents; a laptop computer; and an iPhone XS.
5. The police used the computer app "Find my iPhone" to trace the location of the phone and attended to the rear of a nearby unit block, which was the location indicated by the computer application. Police saw the applicant within the unit block and located the stolen property. The applicant was arrested.
6. Initially the applicant denied responsibility for the offences, but admitted knowing that the items were stolen. As already stated, the applicant had been in continuous custody since his arrest on 29 November 2019.

Applicant's Submissions and Case

1. The applicant seeks to rely on his own Affidavit of 27 September 2021; the Affidavit of his solicitor, Gemma Campagna, of the same date; and a written statement of findings, tendered on the "usual basis", filed on 28 September 2021.
2. The usual basis is that evidence has been received for the purpose of being utilised if the Court were to determine that the appeal should be successful and moves to resentence.
3. The sentencing judge imposed an aggregate sentence. The head sentence imposed was imprisonment for 3 years and 1 month; the non-parole period imposed was 2 years and 3 months' imprisonment. The following table summarises the offence; the maximum penalty for such offence; the indicative sentence imposed; and the ultimate aggregate sentence: Offence Provision Maximum penalties Indicative sentences imposed Aggregate sentence 3 years Aggravated enter dwelling house with intent to commit a serious indictable offence (s 111(2) Crimes Act 1900) 14 years imprisonment 2 years 1 month including a non-parole period of 9 months 2 years and 3 months Larceny (s 117 Crimes Act 1900) 5 years imprisonment 1 year 3 months

1. It is appropriate to note that neither of the offences for which the applicant stood to be sentenced has a prescribed standard non-parole period and it was unnecessary for the sentencing judge to indicate a non-parole period for each of the indicative sentences. The applicant is first eligible for parole on 28 May 2022 and the head sentence expires on 28 March 2023.
2. As already stated, there is one ground of appeal which relates to a breach of the principles established by the High Court in De Simoni. [1] Essentially, the principles provide that where an Indictment does not refer to particular circumstances of aggravation, a judge in imposing a sentence may have regard to those circumstances only if they would not render the accused liable for an offence that involves a greater punishment.
3. The circumstances in De Simoni related to whether, in dealing with a robbery, where the indictment charged the use of actual violence, a sentencing judge was entitled to take into account the wounding that was occasioned by the violence, in circumstances where robbery with wounding was a more serious offence.
4. The submissions of the applicant in these proceedings concedes that, at the outset of the sentencing remarks of the learned sentencing judge, he accurately stated the two offences for which the applicant was to be sentenced. The sentencing judge also stated the maximum penalty applicable to each such sentence. [2] The sentencing remarks then proceed to trace the history of the charges that were then before the court and, in a passage upon which the applicant relies, the sentencing judge said: "… and after some short negotiation between the prosecution and the defence he [the applicant] entered pleas to the charges that are currently before the Court, being in effect a breaking up of the original charge, which was a charge under s 112(2). I accept that the plea of guilty to each of those offences was entered at the earliest practicable time." [3]
5. The learned sentencing judge then accurately summarised the conduct that gave rise to the offences and made findings as to their objective seriousness. The learned sentencing judge then said: "He [the applicant], however, comes to be sentenced in respect of the two charges that are now before the Court as a result of negotiations between the Crown and the defence. Each of the offences, however, is effectively directed at different matters, breaking and entering with intent to steal from occupied premises and stealing property from those premises."
6. The applicant relies upon the description by his Honour of the offence as one of "breaking and entering" as a reference to a more serious offence than that for which the applicant stood to be sentenced and, in particular, that the offence for which the applicant was required to be sentenced did not involve "breaking".
7. Complaint is also made in relation to a portion of a psychiatrist report which was recited by the sentencing judge. In the process of dealing with the psychiatrist's report that addressed a connection between the applicant's mental illness and the offences, [4] his Honour recited the following passage: "There were no indications that his actions in breaking into the house in question were driven by delusional thinking and/or hallucination …". Again, the applicant relies upon the reference to "breaking into the house".
8. Further, after quoting that portion of the psychiatrist's report, his Honour remarked: "As noted by Dr Furst [the psychiatrist], he did not break in because of any delusional thinking or hallucinations." [5]
9. Once more, the applicant relies upon the reference by the sentencing judge to "break in".
10. It is submitted by the applicant that the elements of neither of the offences to which the applicant pleaded guilty, nor the facts upon which he was sentenced, included any suggestion that he had been involved in a "break in", for the purpose of his entry into the premises. The applicant submits that proof of such a break in would have established liability for a more serious offence, being aggravated breaking, entering and commission of a serious indictable offence. [6]
11. Accordingly, on the submission of the applicant, the inclusion in the learned sentencing judge's reasoning to a "break" was not only contrary to the evidence, but contravened the principle in De Simoni, being that aggravating circumstances may not be taken into account when they amount to the commission of a more serious offence of which the accused has not been convicted.

Consideration

1. The Crown, in answer to all of the applicant's submissions, submits that a fair reading of the whole of the remarks on sentence does not disclose the error of which the applicant complains. The Crown refers to the sentencing judge's reference to the correct offences at the commencement of his remarks; the summary of the facts in accordance with the agreed facts; and the lack of any reference to suggest that the applicant gained entry to the dwelling through a "break in".
2. Because of the history of the charges preferred, a reference to the historic charge of breaking and entering was accurate. Further, the Report of Dr Furst, the psychiatrist, was a Report commissioned at a time when the charge preferred against the applicant was one of breaking and entering. So, the reference to break and enter in Dr Furst's Report was, at the time it was written, accurate and no error has occurred by his Honour reciting the extract of the Report.
3. The applicant does not suggest that the aggregate sentence imposed on him was manifestly excessive. Nor is it suggested that either one of the indicative sentences was manifestly excessive. Further, it is not suggested that the sentencing judge, notwithstanding his reference to "break", which, it is said, carries a more severe penalty, used, as a guidepost, a maximum sentence that was inapplicable.
4. As a consequence, it seems that there are two different ways in which his Honour referred to the term "break". First, his Honour has referred to it in an historical context, which deals with the summary of the earlier charged offence and the citation and summary of the Report of Dr Furst.
5. Secondly, his Honour has, seemingly, used the term inadvertently, but not when dealing formally either with the charge itself or the sentence to be imposed. Nor did his Honour use the term when dealing with the maximum penalty that may be fixed. In those circumstances, the inadvertent use of a very familiar term "break and enter" was, in every sense, a slip. [7]
6. The principles in De Simoni stand for the proposition that a sentencing court is entitled to consider all of the conduct of the accused, including that which might aggravate the offence, but cannot take into account circumstances of aggravation, which would have warranted a conviction for a more serious offence. [8]
7. The principles in De Simoni proscribe taking into account circumstances that, if charged, would warrant a conviction for a more serious offence. An offence may be more serious even though it does not involve a more severe maximum penalty, but usually it is not. [9]
8. The converse, however, is always the case. An offence that involves a more severe maximum penalty is a more serious offence. The principle is that an offender is to be punished only for the offence for which he or she has been convicted and not for acts which are not the subject of verdict or plea and which could have constituted a more serious offence. [10]
9. It is necessary to summarise the legislative provisions, because the submission of the applicant is based upon a misapprehension of the statutory scheme and, it would seem, a misunderstanding of his Honour's use of "breaking up" when referring to the historical charge being split.
10. The applicant was initially charged with an offence under s 112(2) of the Crimes Act. Such an offence is an aggravated offence of that which is described in s 112(1) of the Crimes Act. Such an offence requires, relevantly, a break and enter of a dwelling house or other building and the commission of a serious indictable offence.
11. The offence with which the applicant was charged eventually and to which the applicant pleaded guilty was an offence under s 111(2), which is the aggravated form of the offence created by s 111(1) of the Crimes Act and involves entering a dwelling house with intent to commit a serious indictable offence. The commission of the serious indictable offence does not form an element of the offence; only the intent to commit it is an element of the offence.
12. The relevant counterpart of s 111 that deals with "breaking" is not s 112 of the Crimes Act but s 113 of the Crimes Act. Section 113(1) of the Crimes Act creates an offence for a person to break and enter any dwelling house with intent to commit any serious indictable offence and there is an aggravated form of the offence created by s 113(2) of the Crimes Act. The offence under s 113(1) of the Crimes Act carries a maximum sentence of 10 years' imprisonment. The aggravated form of the break and enter under s 113(2) of the Crimes Act carries a maximum sentence of 14 years' imprisonment.
13. Thus, whether or not the offence that had been charged was "entering with an intent to commit a serious indictable offence" or a "break and enter with intent to commit serious offence", the "un-aggravated" offence carries a maximum sentence of 10 years' imprisonment and the aggravated offence carries a maximum penalty of 14 years' imprisonment.
14. The submission of the applicant that, by using the word "break", the learned sentencing judge was referring to s 112 of the Crimes Act is misplaced. The fundamental difference between the offence in s 112 of the Crimes Act and the offences in either s 111 or s 113 of the Crimes Act is that in the latter offences, the Crown is required to prove an intent to commit a serious indictable offence, whereas, in the offence under s 112, the Crown is required to prove the actual commission of a serious indictable offence.
15. Larceny under s 117 of the Crimes Act is a serious indictable offence, because it carries a maximum sentence of 5 years' imprisonment or more. [11] Thus, the sentencing judge correctly noted that the original charge had been broken up by separately charging larceny.
16. I have serious doubt that the offence created by s 113 of the Crimes Act is a more serious offence that, if it were to have been used, which, in the view I have expressed it was not, would breach the De Simoni principles.
17. For the foregoing reasons, I propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal be dismissed.
18. DHANJI J: I have had the advantage of reading the reasons of Rothman J in draft and agree with those reasons together with the orders proposed by his Honour and would add only the following.
19. I agree with his Honour that the use of the word "breaking" in the passage set out by his Honour at [23] was a slip. As his Honour points out The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 stands for the principle that "a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence": De Simoni at 389. In the present case there was no evidence of any conduct before the court capable of constituting a "breaking". While there would be a breach of the principle had his Honour, even in the absence of any reference to facts capable of establishing a more serious offence, assumed some form of break, the applicant's task in the absence of such facts is difficult.
20. I would not accept that his Honour, in referring to a "breaking up of the original charge" was concerned with the precise elements of the original offence. This part of his Honour's reasons was concerned with the history of the matter and relied on for the purposes of determining the pleas were entered "at the earliest practicable time". His Honour was not, at this point in his reasons, concerned with assessing with the criminality involved in the offending for which the applicant was to be sentenced. Insofar as the sentencing judge referred to the psychiatric report and the author's use of the term "break", as Rothman J points out (at [31]), this was an artefact of the report having been obtained at a time when the applicant faced a charge involving a breaking. These matters together with the accurate statement of the offences and the maximum penalty, (as noted by Rothman J at [22]), lead me to the conclusion that the reference to breaking in the passage set out by his Honour at [23] was a slip.

Endnotes

1. R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
2. Remarks on Sentence, p 2; Appeal Book, p 7.
3. Remarks on Sentence, p 5; Appeal Book, p 10.
4. Remarks on Sentence, pp 10-11; Appeal Book, p 15-16.
5. Remarks on Sentence, p 11; Appeal Book, p 16.
6. Applicant's Written Submissions, [31] and following.
7. Dixon v R [2019] NSWCCA 85 at [57]-[62] (Bathurst CJ, with whom Ierace and Hidden AJ agreed).
8. Taufa v R; Siola'a v R [2020] NSWCCA 264 at [48] (Davies J, with whom Hoeben CJ at CL and Adamson J agreed).
9. Cassidy v R (2012) 200 A Crim R 420; [2012] NSWCCA 68.
10. R v De Simoni, supra, at CLR 389 and 392 (Gibbs CJ, Mason and Murphy JJ agreeing).
11. Crimes Act, s 4, "serious indictable offence". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2021