R v Nykolyn

Ground 2 and 3 - the learned sentencing judge erred in sentencing the applicant on the basis of incorrect maximum penalties

Her Honour held that the maximum penalty for the offence of driving in a manner dangerous was eighteen months imprisonment when in fact the maximum penalty was a fine of twenty penalty units or imprisonment for nine months for a first offence. Her Honour also held that the maximum penalty for the offence of driving whilst unlicensed was eighteen months imprisonment, when it was actually only twenty penalty units. The Crown conceded both of these grounds, as it was clear that her Honour had erred in this respect.

Ground 4 - the sentences imposed in relation to the offence of stealing a motor vehicle and using a weapon to avoid apprehension were excessive

Taking into account the objective seriousness of the offence, the significant element of general and person deterrence needed in such cases - R v Hamilton (1993) 66 A Crim R 575 - the fact the applicant had been on parole at the time of the offence and the judicial commission's statistics for the offence under section 33B, the sentence imposed was outside the top of the range. When combined with the errors under Ground 2 and 3, this was held to be a case where leave to appeal should be granted, and the overall sentencing order be adjusted.

Orders: (i) Drive in a manner dangerous (s 42(2) Road Transport (Safety and Traffic Management) Act 1999): Appeal allowed. Sentence below quashed. The applicant is sentenced to imprisonment for a fixed term of 4 months, to commence on 8 May 2002. (ii) Drive whilst unlicensed (s 25(1)(a) Road Transport (Driver Licensing) Act 1998: Appeal allowed, sentence of imprisonment quashed. Substitute a fine of 5 penalty units. (iii) Steal motor vehicle (s 154A(1)(a) Crimes Act 1900): Appeal dismissed. (iv) Use offensive weapon to prevent lawful apprehension (s 33B(1)(a) Crimes Act 1900): Appeal allowed and sentence below quashed. The applicant is sentenced to imprisonment for 4 years and 9 months, to commence on 8 May 2002 and to expire on 7 February 2007, with a non-parole period of 2 years and 9 months, to date from 8 May 2002, and to expire on 7 February 2005. The earliest parole release date will be 7 February 2005.

IN THE COURT OF CRIMINAL APPEAL 60149/03

WOOD CJ at CL SIMPSON J ADAMS J

Tuesday 12 August 2003 Regina v Daniel Anthony Nykolyn Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of a sentence of imprisonment for six and a half years, with an effective non-parole period of three years and seven months, which was imposed by her Honour Judge Ainslie-Wallace in the District Court on 30 August 2002. 2 The offences in question occurred on 13 February 2001, and the applicant was arrested on that day. He then spent the subsequent period (20 weeks and 3 days) until 5 July 2001 in custody being released to bail on that date. 3 The sentences were imposed following a plea of not guilty on 5 March 2002, and a jury verdict of guilty returned before his Honour, the late Judge Luland, on 15 March 2002. 4 The jury verdict related to two principal charges: one count of use an offensive weapon, namely, a motor vehicle, with intent to prevent lawful apprehension contrary to s 33B(1)(a) of the Crimes Act 1900, which carries a maximum penalty of twelve years imprisonment; and one count of stealing a motor vehicle (s 154A(1)(a) of the Crimes Act 1900), which carries a maximum penalty of five years imprisonment. 5 By the time that the trial commenced the applicant's parole had been revoked for failure to report to his supervising officer. He was however allowed to remain at liberty pending the outcome of the trial. 6 On the fourth day of the trial, prior to the jury verdict being returned, the applicant failed to attend court. He was convicted in his absence and was re-arrested on 8 May 2002 and thereafter held in continuous custody. The Parole Board subsequently determined that he should serve the balance of parole from 7 May 2002 to 24 July 2003. 7 At the sentencing proceedings in the District Court he pleaded guilty to two further summary offences: drive in a manner dangerous (s 42(2)) Road Transport (Safety and Traffic Management) Act 1999, for which there is a maximum penalty of a fine of twenty penalty units or imprisonment for nine months or both for a first offence; and drive whilst unlicensed (s 25(1)(a)) Road Transport (Driver Licensing) Act 1998, which carries a maximum penalty of twenty penalty units. Those matters were before the District Court pursuant to s 36 of the Criminal Procedure Act 1985.

BACKGROUND AND FACTS 8 Each of the offences for which the applicant was sentenced formed part of a single incident. An agreed statements of facts was tendered before the sentencing Judge which indicated that the applicant, who had been on parole for the offence of armed robbery when the offences occurred, was, at the time of sentencing forty-three years of age. 9 The statement of facts also shows that on 13 February 2001, plain clothes police, who had been conducting surveillance on a Matraville residence, for reasons unrelated to the applicant, sighted a stolen Holden Commodore vehicle. Upon following this vehicle they observed the driver to be the applicant. When the applicant became aware of police presence (lights and sirens having been activated) he initially slowed the vehicle and moved towards the kerb side. However, he then accelerated and proceeded to drive along Anzac Parade at speeds of between eighty and 100 kilometres per hour failing to give way to other vehicles where required, weaving in and out of traffic, and, at one point, driving for some thirty metres on the footpath on the western side of Anzac Parade. 10 Whilst driving on this footpath the applicant failed to deviate from two police officers (at least one of whom was wearing full uniform,) who had positioned themselves on the footpath in front of the vehicle with their guns drawn and aimed at the vehicle. These police officers, fearing for their lives, were forced to leap clear of the car as the applicant continued towards them without stopping. 11 Due to traffic, and to the danger to the public caused by the applicant's driving, the pursuit was terminated. The applicant was later apprehended by Surry Hills police, who had sighted the stolen vehicle in Redfern. They followed the applicant on foot and arrested him in a nearby laneway. Inquiries revealed that he had never held a New South Wales driver's licence. An inspection of the stolen vehicle revealed that the lock barrel had been completely removed. A screwdriver was found on the front passenger side. 12 The vehicle had been stolen at some time between 10 and 11 February 2001 from Earlwood. The applicant claimed that he had moved to shared accommodation premises at Matraville, on the day prior to committing the offences which brought him before the court. On that day he said three men whom he did not know had come to his premises, and had left behind the Commodore sedan which he knew to be stolen. He claimed that his intention had been simply to remove the vehicle from the vicinity of his house, and to "park it around the corner", because he was concerned about his parole status. 13 He said that upon seeing the police he had panicked, that the situation had "snowballed" and that, on seeing the officers pointing guns at him, he had believed that he was going to die. He stated that the reason for his non-appearance part way through his trial before Judge Luland was that his parole had been revoked by reason of two failures to report to the Probation and Parole Service. He had accordingly faced the realisation that he would have been returned to prison, regardless of the outcome of the trial. 14 Additionally, he claimed in evidence that he did not wish to return to gaol out of concern for the welfare of his father, who was in poor health, and who later died. He claimed that he had recently become engaged and that, with the money from his father's estate, he had planned to move to South Australia. 15 The applicant had spent some twelve years in gaol prior to his release on parole in February 2000, and had in total spent around seventeen years of his life in gaol. He stated that he had been having difficulty adjusting to his freedom on parole. He was also unemployed, although he had initially found six weeks employment at a container yard. He claimed that he had been asked to leave that position because of his criminal record. He had completed an apprenticeship as a cabinet maker, prior to being imprisoned, but despite obtaining qualifications in prison as a fitness instructor, learning to speak Arabic and developing skills in calligraphy and ceramics, he had been unable to find other employment after losing the container yard job. He was in receipt of a pension from Centrelink. 16 The pre-sentence report indicated that he had experienced a disruptive early life. At the age of twelve years he had left home and lived in Kings Cross, experimenting heavily with drugs and alcohol. He did not continue these activities. However, he said that he had been introduced to cocaine in gaol and that upon his release from gaol he "fell into a circle of cocaine users," and that he had in fact consumed cocaine the day before the offences occurred. He did not, however, consider himself to have a drug dependency. 17 He indicated, when giving evidence at the sentencing proceedings, that he had found it difficult, after his imprisonment, to communicate with people, and felt afraid of crowded places such as buses, trains and shopping centres, stating that these experiences were akin to "going through a twilight zone from one era to another." 18 Examples of such experiences which he gave to the sentencing court were of never having used an automatic teller machine prior to his release and of being unable to use ticketing machines at railway stations. 19 He claimed to have had two "nervous breakdowns" within the first three weeks of release, and to have been stabbed three months after his release. Despite these events he said that he had been "starting to come good" and was "starting to settle out there until this happened."

THE SENTENCE 20 The total sentence imposed was made up as follows: (i) Drive in a manner dangerous: imprisonment for a fixed term of eight months to date from 8 May 2002 and to expire on 7 January 2003;

(ii) Use offensive weapon to prevent lawful apprehension: imprisonment for five years and ten months to commence on 8 January 2003 and to conclude on 7 November 2008, with a non-parole period of two years and eleven months to date from 8 January 2003 and to conclude on 7 December 2005;

(iii) Steal motor vehicle: imprisonment for a fixed term of one year to date from 8 May 2002 and to expire on 7 May 2003;

(iv) Drive whilst unlicensed: imprisonment for a fixed term of six months to date from 8 May 2002 and to expire on 7 November 2002.

21 The effective overall sentencing order, taking into account the whole of the pre-sentence in custody, is one equivalent to six years and eleven months with a non-parole period of four years.

GROUND 1 - The learned sentencing Judge erred in failing to demonstrably take into account the applicant's pre-sentence custody from 13 February 2001 to 5 July 2001, in relation to the head sentence. 22 The applicant contends that the period during which he was in custody, between his arrest and his release on conditional bail, of 20 weeks and 3 days, was not demonstrably taken into account by the sentencing Judge. The requirement to take that pre-sentence custody into account is found in ss 24 and 47 of the Crimes (Sentencing Procedure) Act 1999. Those sections provide: " 24. Court to take other matters into account In sentencing an offender, the court must take into account: (a) any time for which the offender has been held in custody in relation to the offence, and …" … 47. Commencement of sentence (1) A sentence of imprisonment commences: (a) subject to section 70 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence. (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates. (4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. (6) A sentence of imprisonment starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires. " 23 Her Honour indicated her intention to fix a partially cumulative and partially concurrent overall sentence. 24 She made it clear that she did not intend to accumulate sentences on to pre-existing sentences for the offences in respect of which parole had earlier been granted, and since revoked, since there was no evidence to suggest that the applicant would have served the whole of the balance of parole. 25 For the period of 20 weeks and 3 days' custody in 2001, her Honour said: "The offender has spent from 13 February 2001 until 5 July 2001 in custody on these matters. He was arrested on 8 May 2002 and remanded in custody on this matter. At that time and since he was serving the balance of his parole in relation to the earlier sentence I propose to set a sentence which is backdated to 8 May 2002 when the offender was taken into custody in relation to these matters and to reflect a period of five months he has previously spent in custody before sentence on these matters in the setting of a non-parole period."

26 Clearly her Honour regarded the period from 8 May 2002 to the sentence on 30 August 2002 as a period of pre-sentence custody relevant to the present offences. That she backdated the sentences to 8 May in consideration of this period of pre-sentence custody was within her discretion. 27 Her Honour did not expressly state why the consideration of the pre-sentence custody in 2001 would be reflected only by way of a reduction of the non-parole period, as opposed to the whole sentence. 28 Although not required by legislation, sentencing practice has usually seen pre-sentence custody taken into account by backdating the commencement of the sentence, rather than by reducing the sentence itself. 29 This was a matter which arose for consideration in R v Phillips & Simpson [2002] NSWCCA 167, where Carruthers AJ said: "58. Section 24 of the Crimes (Sentencing Procedure) Act required his Honour to take into account any time for which (the appellant) had been held in custody in relation to the subject offence. Section 47(3) of the Act is generally to the same effect. However, there is no legislative requirement that the sentence be backdated to take into account a period of pre-sentence custody. There is much authority on the other hand as to the desirability of such a course. Thus, reference may be made to the well known passage in the judgment of Chief Justice Street, speaking on behalf of this court, in Regina v McHugh (1985) 1 NSWLR 588 at 590-599 where the Chief Justice said: 'It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which the sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period, should be backdated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order.' 59. Over the years, the practice recommended by the Chief Justice has been regularly applied. (See for example Regina v. Deeble (unreported CCA 19 September 1991) and Regina v. English [2000] NSWCCA 245.) 60. Although the practice was not followed in Regina v. Frascella [2001] NSWCCA 137 and Regina v. Rose [2001] NSWCCA 370 by two Judge Benches of this Court, it has been more recently followed and affirmed in the judgment of a Full Bench of this Court in Regina v. Howard [2001] NSWCCA 309."

30 In Regina v. Howard [2001] NSWCCA 309, where the sentencing Judge demonstrably took into account only one of two fields of pre-sentence custody, I said (at par 25): "It is not clear why the two periods of pre-sentence custody were not demonstrably reflected in the sentencing order. In my view, error did occur in this respect, having regard to the provisions of s 24 as well as s 47(2) and (3) of the Act, and to the principles and practice discussed in McHugh (1985) 1 NSWLR 588; Deeble NSWCCA 19 September 1991, and English (2000) NSWCCA 245. Although I otherwise consider the sentence appropriate, in the absence of any statement or reason for not backdating for the periods in question or for reducing the sentence from the other end, I am of the view that the Court should intervene to adjust them accordingly."

31 Recently in R v Galati [2003] NSWCCA 148, James J, with whom Smart AJ agreed said, at par 36: "It is true that, while a sentencing Judge is required to take a period of pre-sentence custody into account, it is not obligatory for the sentencing Judge to take the period of pre-sentence custody into account by the means of backdating the commencement of the sentence and that in Howard the Chief Judge at Common Law left open the option of reducing a sentence to be imposed so as to take into account a period of pre-sentence custody. However, in the present case, I consider that, notwithstanding the sentencing Judge's assertion in his remarks on sentence that he had taken into account the first period of pre-sentence custody, the first period of pre-sentence custody is not demonstrably reflected in the sentences which were imposed."

32 The Crown submitted that, having spent the period from 8 May 2002 to 30 August 2002 in custody consequent upon parole revocation, it should not be regarded as pre-sentence custody solely referable to the fresh offences. In such a case, the Crown said, her Honour was under no obligation to backdate the sentences in consideration of that period. That her Honour did backdate the sentences to 8 May 2002, and she did reduce the non parole period, was said to be sufficient to meet her obligations under the Act. 33 While it was not strictly impermissible for her Honour to have reduced the non-parole period to account for the earliest period of pre-sentence custody, rather than backdating its commencement . I am not persuaded that there was necessarily an error in doing so. Had the applicant been given the full benefit of all of the pre-sentence custody in backdating the sentence and the non-parole period, the revocation of the earlier parole would have lost its effect. However the fact of the earlier period of custody was obviously a matter properly to be taken into account and which we should also take into account when we come to consider the balance of the matters relied upon, and in particular, the question of whether or not the sentence as a whole was excessive. GROUND 2 - The learned sentencing Judge erred in sentencing the applicant on the basis that the maximum penalty for the offence of driving in a manner dangerous is eighteen months imprisonment. 34 The maximum penalty for the offence was a fine of twenty penalty units or imprisonment for nine months, for a first offence. It is true that for "second and subsequent" offences the penalty is thirty penalty units or twelve months imprisonment, or both. 35 Whilst the applicant did have a lengthy criminal history, involving numerous driving offences, a "second or subsequent offence" is nevertheless defined in the Dictionary (cl 2) as follows: "An offence against a provision of this Act is a 'second or subsequent offence' only if, within the period of five years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision or of a major offence. (2) An offence against a provision of this Act is a 'first offence' if it is not a second or subsequent offence." 36 It is clear that her Honour erred in this respect as the Crown conceded, since the earlier offences fell outside the period which would have converted the present offence into a "second or subsequent offence". 37 At page 10 of the remarks on sentence she indicated that the sentence for this offence had been discounted by twenty-five per cent, to take into account the applicant's plea of guilty. 38 A sentence of eight months imprisonment, after a discount of twenty-five per cent, would necessarily have involved a starting point which was in excess of the maximum term set by the legislature for the present offence. Error in approach has accordingly been shown.

GROUND 3 - The learned sentencing Judge erred in sentencing the applicant on the basis that the maximum penalty for the offence of driving whilst unlicensed is eighteen months imprisonment.

39 The applicant was charged with driving whilst unlicensed pursuant to s 25(1)(A) of the Road Transport (Driver Licensing) Act 1998. Again, despite the applicant's history of driving offences, the offence in this particular instance was a "first offence" by reason of the time which had elapsed since the previous offences. The maximum penalty was, accordingly, twenty penalty units. A sentence of imprisonment was not available. As the Crown conceded her Honour again erred by assuming that the maximum penalty was eighteen months imprisonment. GROUND 4 - The sentences imposed by the learned sentencing Judge in relation to the offences of stealing a motor vehicle and using a weapon to avoid apprehension are individually and in combination manifestly excessive. 40 The applicant submits that the sentences, particularly that of using an offensive weapon to prevent lawful apprehension, were manifestly excessive when compared with the Judicial Commission statistics and also when other cases involving those offences are taken into account. 41 It was also submitted the offence of stealing a motor vehicle fell into a low level of objective seriousness, it being common ground that the applicant had not been responsible for the initial theft of that vehicle, and had offended out of a misguided and ill-advised attempt to distance himself from further criminal activity. 42 In my view the offence involving the use of the vehicle with the intention of avoiding lawful apprehension was particularly serious and could easily have resulted in the loss of the lives of the police officers who were only performing their duty. Fortunately no one was injured in this incident. 43 However, the offence is one which does call for a significant element of general and personal deterrence - see R v Hamilton (1993) 66 A Crim R 575 where Gleeson CJ said: "It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task."

44 As the Crown has submitted it was necessary for any sentence imposed in respect of this offence to have properly reflected its objective seriousness: R v Hayes [2001] NSWCCA 358; R v Rushby [1977] 1 NSWLR 594 and R v Simpson (2001) 53 NSWLR 704. 45 Additionally, the offence was aggravated by the circumstance that the applicant had been on conditional liberty on parole at the time of its commission. That is an aggravating circumstance which is well recognised - see R v Readman (1990) 47 A Crim R 181. 46 The applicant had in fact a very poor record involving numerous convictions for larceny, and for driving offences apart from a conviction for armed robbery for which he had been paroled; and he had very little to offer by way of subjective circumstances. 47 However, when the sentence is compared with sentences imposed in other s 33B cases such as R v Hamilton (Supra), R v Simon [1999] NSWCCA 418, R v Duke [2000] NSWCCA 403, R v Paris [2000] NSWCCA 83 and R v Sainsbury [2000] NSWCCA 496, even after due allowance is made for circumstances that some of those cases involved Crown appeals, and also allowing for the differences in subjective and objective circumstances, including the circumstances that in some cases there had been pleas of guilty, it is my view that the sentence, particularly after accumulation, was outside the top of the range. 48 That circumstance, in conjunction with the errors made in relation to the offence of driving in a manner dangerous, and driving whilst unlicensed, lead me to the view that leave to appeal should be granted, and the overall sentencing order adjusted. 49 I am not, however, persuaded that the fact that the s 33B offence could have been dealt with in the Local Court requires of itself any adjustment. As has been made clear, that circumstance does not limit a sentencing Judge to the maximum available in the Local Court - R v Doan (2000) 50 NSWLR 115. 50 The present was a particularly serious offence by an offender with a bad record, which was committed while he was on parole. It could only properly have been dealt with, in my view, on indictment in the District Court. 51 I consider it first necessary to correct the sentencing for the two driving offences. 52 In relation to the offence of driving in a manner dangerous, I would allow the appeal and impose a fixed term of imprisonment of four months to commence on 8 May 2002. 53 In relation to the offence of driving while unlicensed I would allow the appeal, quash the sentence of imprisonment and substitute a fine of five penalty units. In that regard I have taken into account the offender's limited capacity to pay a fine. However, he does have a significant record for offences of this kind and it is appropriate, both for general deterrence and personal deterrence, that he suffer a significant monetary penalty. 54 In relation to the count of stealing a motor vehicle, taking into account also the large number of prior convictions which the applicant has accumulated for similar offences, I would dismiss the appeal and confirm the sentence of a fixed term of imprisonment for 12 months, which was imposed by her Honour. 55 Finally, in relation to the offence of using an offensive weapon, namely a motor vehicle with intent to prevent lawful apprehension, I would allow the appeal and quash the sentence below. I would substitute a sentence of four years and nine months imprisonment to commence on 8 May 2002, and to expire on 7 February 2007, with a non-parole period of two years and nine months to date from 8 May 2002 and to expire on 7 February 2005. The earliest parole release date would be 7 February 2005. 56 In fixing this sentence I have made some allowance for the pre-sentence custody, but I have also taken into account the fact that, for at least some of that period, the applicant was serving the balance of parole. 57 The sentences for the first and third offences mentioned should be fixed terms since they will be absorbed entirely in the sentence for the last mentioned offence. 58 I find special circumstances to exist in relation to the non-parole period for the last mentioned offence, having regard to the record of the applicant which would justify a longer period of supervision on parole than might otherwise be appropriate, so as to assist in his eventual return to the community. 59 I have taken into account the affidavit placed before the court this morning which served only to confirm that the applicant has, to some degree, if not to a significant degree, become institutionalised and will need considerable assistance in returning to the community. 60 I am of the view that the sentences should be served concurrently, save for the fine which should be regarded as additional punishment having regard to the prior record which reveals that the applicant has now been convicted nine times for unlicensed driver, five of those occasions (including the present) occurring in conjunction with offences of stealing or unlawful use of a motor vehicle, and two of those occurring in conjunction with PCA offences. 61 SIMPSON J: I agree. 62 ADAMS J: I also agree. 63 WOOD CJ at CL: The order of the court will therefore be:

(i) Drive in a manner dangerous (s 42(2) Road Transport (Safety and Traffic Management) Act 1999): Appeal allowed. Sentence below quashed. The applicant is sentenced to imprisonment for a fixed term of 4 months, to commence on 8 May 2002. (ii) Drive whilst unlicensed (s 25(1)(a) Road Transport (Driver Licensing) Act 1998: Appeal allowed, sentence of imprisonment quashed. Substitute a fine of 5 penalty units. (iii) Steal motor vehicle (s 154A(1)(a) Crimes Act 1900): Appeal dismissed. (iv) Use offensive weapon to prevent lawful apprehension (s 33B(1)(a) Crimes Act 1900): Appeal allowed and sentence below quashed. The applicant is sentenced to imprisonment for 4 years and 9 months, to commence on 8 May 2002 and to expire on 7 February 2007, with a non-parole period of 2 years and 9 months, to date from 8 May 2002, and to expire on 7 February 2005. The earliest parole release date will be 7 February 2005. **********

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