R v Nykolyn [2012] NSWCCA 219

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Nykolyn [2012] NSWCCA 219 Hearing dates: 17 August 2012 Decision date: 17 August 2012 Before: McClellan CJ at CL at [1] Hall J at [50] R A Hulme J at [52] Decision: Reason delivered 16 October 2012: 1. Crown appeal dismissed. 2. Respondent's application for leave to appeal dismissed. Catchwords: CRIMINAL LAW - Crown appeal - sentence - where sentencing judge categorise each offence as being of similar seriousness - where sentencing judge failed to indicated impact of matters on Form 1 on sentence for particular offences - application of s 53A of Crimes (Sentencing Procedure) Act 1999 - whether sentencing judge erred in finding that offences were not planned - no error in finding that offences were not planned - whether sentencing judge erred in the manner in which he took into account mental illness of respondent - no error found in approach of sentencing judge to issue of mental illness - whether non-parole period of sentence manifestly inadequate - where non-parole period 21.42% of head sentence - where history of significant mental illness - where effective and appropriate psychiatric treatment requires - where respondent had history of not offending whilst on parole - non-parole period not manifestly inadequate. Legislation Cited: Crimes Act 1900 Pawnbrokers and Second Hand Dealers Act 1996 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment Act 2010 Crimes (Sentencing Procedure) Amendment Bill 2010 Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1 FP v R [20120] NSWCCA 182 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 R v Brown [2012] NSWCCA 199 Category: Principal judgment Parties: Crown (Applicant) Daniel Joseph Nykolyn (Respondent) Representation: Counsel: S Dowling (Crown) J Stratton SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Respondent) File Number(s): 2011/69304 2011/11800 2011/201186 Decision under appeal Date of Decision: 2012-02-17 00:00:00 Before: Finnane DCJ File Number(s): 2011/69304 2011/11800