R v Nyrhinen

District Court of NSW|2023-12-08

Solicitors: Russionello Lawyers (for the offender) B Edye solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2022/321987

Introduction

This morning Joshua Nyrhinen (also known as Joshua McPhee) adhered to guilty pleas that were entered in the Local Court to two serious offences: Armed Robbery, pursuant to s 97(1) Crimes Act 1900 (NSW) and Dishonestly Obtain Property by Deception, pursuant to s 192E(1)(a) Crimes Act. The offences occurred on 30 September 2022 while he was in company with Remy Girdler and Tristan Sturgess.
Ms Girdler's sentence proceedings proceeded today in parallel with this matter. I will sentence her shortly: R v Girdler [2023] NSWDC 616. Mr Sturgess is for sentence in the new year.
When I sentence for the armed robbery, Nyrhinen has asked that I take into account, on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1, another serious offence that of: Detain a Person in Company with Intent to Obtain an Advantage, pursuant to s 86(2)(a) Crimes Act. It is appropriate that I do so.

Guilty pleas and matter on a Form 1

The guilty pleas were indicated in the Local Court and adhered to today. He will have a reduction of 25% for the utilitarian value of those guilty pleas.
The matter on the Form 1 will be taken into account. The detention is of itself a serious crime and Ms Girdler is to be sentenced for that crime. But I do not sentence for the matter on the Form 1, but it can, and here should, lead to an increase in the sentence for the matter to which they relate. The increase recognises the need for personal deterrence and retribution for the crime for sentence: 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. Sometimes that increase can be substantial: Attorney General's Application No 1 of 2002 at [18].
Here the Form 1 detention offence and the facts relating to it are integral to, and inform and surround, the circumstances of the robbery. The Form 1 matter and the other surrounding circumstances were both taken into account in determining an appropriate penalty. I did so applying the instinctive synthesis approach; which was, in my view, best explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]- [54].
It is both impractical and impossible to parse the facts in relation to each matter; one provides context for the other. As both can be taken into account, I must be particularly careful not to double-count so as to increase the sentence, and I will attempt not to do so.

Agreed Facts

The facts in relation to Nyrhinen are agreed. They are slightly different to those for Ms Girdler because they reflect his personal circumstances.
The victim in the matter was a person of a similar age, known to Ms Girdler. On 30 September 2022 she contacted him using Snapchat and arranged to meet him. They then drove to a well-known lookout at Mount Kembla. At the time of the meeting, the victim in the matter saw a maroon Subaru Forester drive up nearby. As he parked his car the Forester pulled up parallel to it.
The occupants of the Forester came over to his car. Sturgess tapped on the driver's door. The victim wound down the window. This offender, Nyrhinen, was standing beside him. The victim saw what he describes as a gun-like object. At that point Girdler said, "Don't hurt him, don't hurt him".
A demand was made that he remove the keys from the vehicle and hand over his mobile phone. By this time, he was very scared and uncertain as to what might happen. He said, "No".
Sturgess punched him to the side of the face and repeated, "Remove the key and give me your mobile phone". The victim removed the key from the ignition and handed them and his phone to Sturgess.
Someone said to Ms Girdler, "Remy [get] out of the car and get in the car". She got out of the victim's car and entered the Forester. As she did so she said, "I love you's". I am not sure to whom she said this, but I presume from all the facts before me, it was Sturgess.
The Nyrhinen was seen to hold a knife. He told the victim to slide over to the passenger side. The victim complied. Nyrhinen told him, at knifepoint, to drive the vehicle.
They drove to an address in Berkeley. As I am very familiar with the local area I can say it was about 15 minutes away.
Nyrhinen received a call that lasted about 30 seconds. He said, "Hello, I have got a hostage situation going on babe, it's not the best time to speak, I will see you soon".
At this stage the victim was pleading with Nyrhinen not to take his car because he was "broke". He was told that if he did what was asked of him the mobile phone and car would be returned: Evidence Act 1995 (NSW), s 144.
They parked in Berkeley. There, Sturgess and Girdler entered the vehicle, sitting in the back seat. Their presence understandably further scared the victim. He was taken to a local park which at that time of night would have been, given my own local knowledge, dark and deserted.
He was told to unlock his phone and transfer sums to an account that was linked to Nyrhinen's account. In total, $1,464 was transferred.
He was then driven to Ms Girdler's address in Warrawong, about five to 10 minutes away and left there. He waited and then walked home - without his car.
He made unsuccessful attempts to get his car back but eventually, on 1 October 2022, the matter was reported to police.
As a result of being punched by Sturgess, he sustained soreness and bruising to the right side of his face.
Girdler was arrested on 12 October 2022. Nyrhinen was arrested on 27 October 2022, and he has been in custody ever since.

Objective seriousness

Those objective facts reveal the seriousness of the offences. An assessment of objective seriousness is critical to any sentencing exercise: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [29]. No particular mathematical values need be attributed to matters regarded as significant. Nor is it necessary to label the objective seriousness of the offending by reference to some abstract term.
Courts do not take a staged approach to sentencing: Markarian v The Queen (2005) 228 CLR 357. What I must do is identify fully the facts and matters and circumstances which I conclude bear upon the judgment, not just so far as objective seriousness, but all relevant matters and the purposes of sentencing: Muldrock v The Queen; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.
Sentences must be proportionate to the crime committed and any punishment proportional to the seriousness of the offence and the harm caused either to individuals or the community.
Some important factors critical to demonstrating the objective seriousness of the offences are that: 1. It occurred at night; 2. The victim appeared to be targeted; 3. A knife was used; 4. He was put in fear for a lengthy period; and 5. Everything he owned, his phone, his car, and it would appear, all his money, was taken.
What then occurred was partly in company with others, but there was a period where the victim and offender were alone in the car together.
Material before me indicates that at the time Nyrhinen was drug‑affected. The fact that he was affected by drugs, first, does not mitigate the seriousness of the offence, to the contrary, it made him more dangerous; a drug‑affected, apparently desperate man, was holding a very sharp knife to someone while at the same time he was driving and using a mobile phone.
These are obviously serious examples of offences of their type; the robbery in particular.
Reference has to be made to the guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; Crimes (Sentencing Procedure) Act 1999 (NSW), s 42A. While that judgment is not prescriptive, it is one guide to the exercise of my sentencing discretion: Moodie v R [2020] NSWCCA 160. The facts here show this matter is more serious than those set out in the guideline.

Maximum penalties

The maximum penalty for the armed robbery is 20 years. The maximum penalty for the taking of the property, the $1,640 taken, is 10 years' imprisonment. Careful attention to those maximums is required.
Sadly, Joshua Nyrhinen has a long criminal history for a man of 26. He was regularly before the Children's Court and has appeared before this Court. I sentenced him for an armed robbery offence involving a knife on 13 November 2018. That sentencing judgment is before the Court.
His record not only disentitles him to leniency, it requires the Court to give very careful consideration to issues relating to community protection.
During the course of this sentence, he also served a short period for a Local Court sentence. To allow for some punishment for that matter I propose to start today's sentence after he had been a month in custody; on 27 October 2022.

Victim impact

The victim was injured. The victim was scared. He lost his property. There is no Victim Impact Statement before me, but the absence of a statement does not give rise to an inference the offence had little or no impact on him: Crimes (Sentencing Procedure) Act 1999, s 30E(5).

Subjective case

Nyrhinen did not give evidence. There is, however, a comprehensive Sentence Assessment Report and a very comprehensive report from a psychiatrist, Dr Mason. I also had the benefit of reading my comments from his earlier sentence.
There is nothing controversial in the material before me. It does not go to the objective seriousness of the offence. I believe I can act on the history given.
There is some evidence of, if not remorse, acceptance of responsibility and some insight into his offending. Nyrhinen told Dr Martin that he is, "very disappointed … Just because I've got a problem doesn't mean I need to drag others down with it": Exhibit 1 at [32]
The offender's long-term use and abuse of illicit drugs is a very relevant matter on sentence, but as I have indicated, it is not mitigating: R v Henry. He told Dr Martin at [31] that when he committed the crime he was "a bit blurry," but as I said earlier, that fact made him more dangerous and unpredictable.
The fact of his addiction, the fact that it occurred when he was far too young to make rational choices, how it came about, what is to be done about it, are relevant to this sentencing exercise. His drug use helps explain this offending, its impulsivity, and the lack of any sensible planning. The origin of the problem, its extent and the plans that are in place to hopefully overcome it and its impact on his prospects for rehabilitation and/or recidivism, are important considerations. It helps me understand the man for sentence and what can be done to reduce what the Sentencing Assessment Report before me indicates is a high risk of reoffending. He will be at high risk if steps are not taken, during this time in custody, and in the future, to attempt to restore to the community a person who has never yet been a member of that community in any real sense: R v Henry at [273].
The Sentence Assessment Report sets out the offender's background. His history of antisocial behaviour goes back to when he first came before the Children's Court aged 15. The report notes that he accepts responsibility for his behaviour. It sets out, in summary, a significant history of drug abuse, commencing when he was 11. It notes a maladaptive approach to manage severe pain following an accident in 2020 and the fact that he became addicted to buprenorphine while in custody on a previous occasion.
His life, particularly this offending, was heavily influenced by a long‑term methylamphetamine addiction. The report also notes an extensive history of resorting to violence, particularly by the use of weapons, repeated in the facts here, an aggravating circumstance in this offence.
There is no malice shown towards his victim by the offender.
He seems to have some concern about his future. He has plans; in particular for working with his father who has come back into his life after a long estrangement. I note however, that as past behaviour is a good indication of future behaviour, unless he engages in a comprehensive program directed towards rehabilitation, both inside and outside of custody, his chances are bleak.
Dr Martin provided a report which was more comprehensive than, and built upon, the material I received on the previous occasion. He notes, at par [34], his principal diagnosis of Post-Traumatic Stress Disorder, but also Antisocial Personality Disorders, Borderline Personality Disorders and Substance Abuse Disorders.
Dr Martin gives a history of a very disrupted childhood and of childhood abuse, which has led to Nyrhinen remaining angry and uncommunicative about the extent and nature of that abuse. He was homeless since he was very young. He spent time in juvenile detention. He said that there "the food was better" than living on the streets.
The offender has attempted counselling on many occasions, but there appears to be no real engagement with it. He has received some medication for his underlying psychiatric conditions, but that stopped in 2022.
He has lived with long-term and varied drug abuse for a period of time. Drug abuse is recognised by Dr Martin as being an inappropriate coping mechanism. The offender described his life on drugs as being "on autopilot".
The history given shows prolonged periods, over a decade, of long-term emotional distress.
Dr Martin notes that the account given was consistent, plausible and convincing. I respect his professional opinion. He puts forward a treatment plan that must include anger management. That plan can be co-ordinated both inside custody and out. It provides a solid foundation for a finding of special circumstances despite persistent recidivism. The attempt must be made to avoid this young man being institutionalised: Jinnette v R [2012] NSWCCA 217, at [103]; Jackson v R [2010] NSWCCA 162 at [24].
I will give full weight to his background. I will give full weight to his mental health concerns noted by Dr Martin. As submitted by counsel, this case calls for the consideration of the principles discussed by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
There is sometimes misapprehension that these are rigid rules. In sentencing there are no rigid rules, in fact, it was said almost a century ago that when sentencing "… the only golden rule is that there is no golden rule": Geddes v R (1936) 36 SR (NSW) 554 at [555]- [556].
I will take into account how his multiple mental problems have impacted upon him. They do, along with the history of trauma and childhood deprivation, reduce his moral culpability, a very relevant sentencing factor: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Nasrallah v R [2021] NSWCCA 207; De La Rosa at [177].
Those disadvantages, his response by drug use, have inhibited the development of any prosocial values. Nyrhinen has never really acquired a moral compass and the decisions he has made have always been short term. He has not thought about himself or his future. He rarely thinks about the impact of his behaviour on others. His dysfunctional background, his impaired socialisation, his failure to adjust, shows that his capacity to mature and learn from experience has been compromised; a point made by the High Court in Bugmy.
There is no evidence that those conditions will increase the burden associated with a custodial sentence and there remains, regardless of his background, a need for what is called specific deterrence. In simple terms: the offender should understand that the more he offends the more he is going to be punished, and the more seriously he offends, the harder the punishment must be. If he continues to offend, the more of his life he will spend in gaol. It is hoped that that fear of returning to gaol may cause him to think. That process obviously failed on the last occasion.
He is still young. There is some evidence that while immaturity and lack of capacity to mature can lead to offending, as offenders get older, emotional maturity and, with assistance, impulse control may develop: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.
It is hoped that as Nyrhinen gets older is able, and more capable, of making a choice; either to spend the rest of his life living as he has to date with the consequence he returns to gaol, or take the opportunities that his father and others will offer him during the balance of his sentence and while on parole.

Parity

There are two offenders for sentence today. I will sentence Sturgess in the new year. I have to have regard to the roles of each of the offenders and their personal and criminal histories. "Like [should] be compared with like", but different histories, different personal backgrounds, can "justify a real difference in [sentence]": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.
There should be proportionality, however, no offender should feel that they are dealt with unjustly by comparison with an offender: Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at [51]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.
Each was involved in a criminal enterprise. Their charges are different. They were all involved in the same enterprise but that does not mean does they are each sentenced the same on the basis their individual actions had the same objective criminality. Sentences are individual both in terms of the facts to be sentenced and the person to be sentenced: Magaming at [51].
There can be a differentiation between participants. Here, the offender was the one wielding the weapon. For a period, he was alone with the victim when the victim was in a particularly vulnerable situation. It was he who made the demand for the money, and it was to his account that it was transferred.
But those differences while relevant, begin and end with the proposition that each offender chose to involve themselves in the same course of criminal conduct. Each intended crimes be committed against the victim, and each played their part in carrying it into effect: R v Goundar [2001] NSWCCA 198; R v Breedon NSWCCA, 3 December 1992, unreported; Johnson v R [2010] NSWCCA 124.

Submissions

I have received both written and oral submissions from Mr Edye for the Director of Public Prosecutions and Mr Steward, of Counsel, for the defence. There is no real difference between what is submitted in terms of principle.
It is accepted by the prosecution that here, the important purposes of sentencing point in different directions; a not uncommon situation. The offence was so serious that some weight must be given to general deterrence or retribution - the principle that others in the community must understand that to offend, as this offender did, is so serious that you will lose your liberty if you do. And also, specific deterrence, to attempt to get through to Nyrhinen, as I sadly said on the last occasion, that to produce a knife to another citizen, another human being, to frighten them is more than unacceptable, it is seriously criminal, because they are not to know that the knife is not going to be used to hurt or kill them.
Courts have a duty to try and protect the community. Where a sentence has failed to protect in the past and there is a repetition of the offending, courts generally impose harsher and harsher sentences.
At the same time, as the Crown recognises, we are dealing with an offender who is still young, a man with a terrible background. There is still hope for his rehabilitation. While his risk of re-offending is high, he should not be abandoned. A sentence that is structured in a way that assists in the promotion of his rehabilitation can still be imposed.
That was ultimately, the principal submission made by Mr Steward. I should reward the efforts presently being made in custody, and recognise the history of the offender, and the communities need, for him to learn how to live a normal life in the community. A sentence that is structured to allow for the prospect of rehabilitation in the community.
This, I accept, justifies a lesser sentence than would ordinarily be warranted, the objective facts, looked at in isolation.

Synthesis

There are two matters for sentence. The obtain benefits offence relates to the proceeds of the armed robbery, or one of the proceeds. I do not underestimate those other proceeds, to lose someone's car is particularly significant. There will be some modest accumulation, but only modest because the two matters are so interrelated.
As I said, there must be a proportionate sentence.
The moral culpability of this offender is reduced: Magaming at [51]. He is only 26 but there has been, in that short life, 15 years of criminal activity. He told Dr Martin he is "over it" and "needs to do better". I cannot accept that assurance at face value. He still needs to be detained; he still needs to be punished. He has shown some signs of maturity. He is not yet institutionalised, but a pattern has been set and that pattern must be broken.
I want to take a forward-thinking approach. Nyrhinen needs help in custody, he will need help in the community. He needs help with his mental health. A mental health care plan should be implemented: Dr Martin's report, Exhibit 1, at [48]. And if it is, Dr Martin expects there will be improvement. It is essential that he gets this support in gaol and in the community, while he is on parole.
It is essential he receives anger management training as his record reveals aggressive behaviours play a prominent role in his life, or, as Dr Martin says, at par [45], "a prominent role in [his] clinical picture".
I will give full weight to the mitigating circumstances raised. I do not ignore the powerful case in mitigation put for the offender, but this does not mean I ignore those purposes of sentencing that point to harsh and retributive penalties. Sentencing courts have an obligation ultimately to protect the community and to vindicate the dignity of victims of violence and to express the community's disapproval of the offending.

Orders

There will be an aggregate sentence. Each indicated sentence will reflect the 25% reduction. The process of accumulation should not undermine the benefits of the early plea. There will be a finding of special circumstances. The sentence will start on 27 November 2022.
In relation to the armed robbery and taking into account the matter on the Form 1, I indicate a sentence of 3 years and 9 months. In relation to the obtain benefit, a sentence of 1 year and 10 months indicated.
The aggregate sentence is 4 years' imprisonment. It will commence on 27 November 2022. The non‑parole period is 2 years and 8 months. It will commence on 27 November 2022. The offender will be eligible for consideration for release to parole on 26 July 2025. A parole period of 1 year and 4 months will commence on 27 August 2025 and expire on 26 November 2026. Total sentence of 4 years.
Dr Martin's report (Exhibit 1) will accompany the warrant so Corrections can have access to it.

Amendments 27 March 2024 - Co-offender's case citation inserted into cover sheet and judgment. 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: 27 March 2024

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