Nykolyn v R [2021] NSWCCA 312

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nykolyn v R [2021] NSWCCA 312 Hearing dates: 20 October 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Before: Bathurst CJ [1]; Rothman J [3]; Dhanji J [47] Decision: (1) Leave to appeal granted; (2) Appeal dismissed. Catchwords: CRIME – Appeal against sentence – Misapplication of principle – De Simoni – No error – appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) ss 111(2), 112(2), 113(1), 113(2), 117 Cases Cited: Cassidy v R [2012] NSWCCA 68 Dixon v R [2019] NSWCCA 85 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Taufa v R; Siola'a v R [2020] NSWCCA 264 Category: Principal judgment Parties: Daniel Joseph Nykolyn (Applicant) Regina (Respondent) Representation: Counsel: I Nash / W Burton (Applicant) G Newton (Crown)

Solicitors: Aboriginal Legal Service (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2019/00377511 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 02 October 2020 Before: King SC DCJ File Number(s): 2019/00377511

Judgment 1. BATHURST CJ: I agree with the orders proposed by Rothman J and with his reasons. 2. I also agree with the additional reasons of Dhanji J. 3. ROTHMAN J: The applicant, Daniel Joseph Nykolyn, seeks leave to appeal the sentence imposed upon him. If leave be granted, the appeal is agitated on the same basis. The application for leave and the appeal were heard concurrently. 4. On 2 October 2020, the applicant was sentenced in the District Court to an aggregate sentence of 3 years and 1 month, with a non-parole period of 2 years and 3 months, concluding on 28 May 2022. The commencement date of the prison sentence was fixed as the date upon which the applicant was arrested, 29 February 2020, as he had remained imprisoned for these offences since that time. 5. The applicant was sentenced for two offences: aggravated enter dwelling house with intent to commit a serious indictable offence, contrary to s 111(2) of the Crimes Act 1900 (NSW); and larceny, contrary to s 117 of the Crimes Act. His Honour set out indicative sentences of 2 years and 9 months for the aggravated enter dwelling house and 15 months for the larceny offence. 6. The maximum sentence available for the aggravated enter dwelling house with intent is 14 years' imprisonment and the maximum sentence that may be imposed for the larceny is 5 years' imprisonment. Neither offence has a standard non-parole period. 7. The applicant seeks leave to appeal, and if leave be granted appeals, the sentence imposed upon him in the District Court. That appeal raises one ground, in the following terms: "The sentencing judge contravened the principle in The Queen v De Simoni (1981) 147 CLR 383 … by having regard to a 'breaking' which was an element of a more serious offence not charged." 1. The applicant had pleaded guilty to the charges for which he was ultimately sentenced, which charges were substituted for an earlier more serious charge of aggravated break and enter dwelling house and commit serious indictable offence. That more serious offence carries a maximum sentence of 20 years' imprisonment in its aggravated form, pursuant to the terms of s 112(2) of the Crimes Act. 2. Essentially, the applicant seeks to have the Court intervene on the basis that the sentence imposed reflected the offence under s 112(2) of the Crimes Act and not the offences with which he was ultimately charged and for which he was to be sentenced.