R v Nykolyn [2003] NSWCCA 229

New South Wales Court of Criminal Appeal

CITATION : R v Nykolyn [2003] NSWCCA 229 HEARING DATE(S) : 12/8/03 JUDGMENT DATE : 12 August 2003

JUDGMENT OF : Wood CJ at CL at 1, 63; Simpson J at 61; Adams J at 62 DECISION : 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.

CATCHWORDS : CRIMINAL LAW - appeal against severity of sentence - plea of not guilty - use offensive weapon with intent to prevent lawful apprehension - drive in a manner dangerous - steal motor vehicle - drive whilst unlicensed - whether sentencing judge took proper account of pre-sentence custody - error in assessing maximum penalties - whether sentences imposed were individually and in combination manifestly excessive. Crimes Act 1900 - s 33B(1)(a); s 154A(1)(a) Crimes (Sentencing Procedure) Act 1999 - 24, 47 LEGISLATION CITED : Criminal Procedure Act 1985 - s 36 Road Transport (Driver Licensing) Act 1998 - s 25(1)(a) Road Transport (Safety and Traffic Management) Act 1999 - s 42(2) R v Doan (2000) 50 NSWLR 115 R v Duke [2000] NSWCCA 403 R v Galati [2003] NSWCCA 148 R v Hamilton (1993) 66 A Crim R 575 R v Hayes [2001] NSWCCA 358 Regina v. Howard [2001] NSWCCA 309 CASES CITED : Regina v McHugh (1985) 1 NSWLR 588 R v Paris [2000] NSWCCA 83 R v Phillips & Simpson [2002] NSWCCA 167 R v Readman (1990) 47 A Crim R 181 R v Rushby [1977] 1 NSWLR 594 R v Sainsbury [2000] NSWCCA 496 R v Simon [1999] NSWCCA 418 R v Simpson (2001) 53 NSWLR 704 PARTIES : Regina Daniel Anthony Nykolyn FILE NUMBER(S) : CCA 60149/03 COUNSEL : G Rowling (Crown) H Dhanji SOLICITORS : S E O'Connor D J Humphreys