Citation: R v Nabalarua; R v Quinlan [2017] NSWDC 328
Court: District Court of New South Wales
Date: 17 November 2017
Judge(s): Yehia SC DCJ
Background
Two offenders were tried together in the Sydney District Court in January 2017 on four counts arising from a series of offences in October 2014. A jury convicted both on three counts and acquitted them on the fourth. The offences involved the theft of a motor vehicle followed by two armed robberies carried out in quick succession.
The first robbery was an attempted armed hold-up of a Commonwealth Bank branch at Chester Hill. Four perpetrators, wearing balaclavas and gloves and armed with firearms and sledgehammers, entered the bank but fled empty-handed after staff activated security measures. Within minutes, three of the group entered the Rosnay Golf Club at Auburn and robbed a staff member at gunpoint, stealing $450. A police pursuit followed, ending in a collision after which the offenders fled on foot. Items including firearms, gloves, and sledgehammers were later recovered.
DNA evidence linked both offenders to gloves found at the scene. CCTV footage and purchase records for the sledgehammers and clothing established that the robberies were the product of deliberate preparation over the preceding days.
Legal Issues
- How the sentencing purposes and principles under ss 3A and 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to serious planned armed robberies
- Whether and how the Bugmy principles, concerning the mitigating weight of a deprived and disadvantaged childhood, applied where the offences involved a degree of planning
- What aggregate sentences and non-parole periods were appropriate, including whether special circumstances existed to justify a longer than usual parole period
Decision
The court treated the attempted bank robbery (count 1) as the more serious offence, noting the use of firearms, the organisation involved, the presence of four offenders, and the deliberate targeting of a financial institution. The golf club robbery (count 3), while also serious, involved a smaller group of three, a lesser weapon deployed against a single staff member, and a relatively modest sum taken. Both offences under s 97(2) of the Crimes Act 1900 (NSW) carried maximum penalties of 25 years imprisonment.
The court considered the Bugmy principle, confirmed by the High Court in Bugmy v The Queen (2013) 249 CLR 571, that the mitigating effect of a deprived and disadvantaged background does not diminish with the passage of time, regardless of an offender's age at sentencing. Her Honour acknowledged that both offenders had experienced significant childhood hardship. The court also grappled with the tension identified in cases such as Taysavang v R; Lee v R [2017] NSWCCA 146, where offences involve planning, since deliberate preparation can limit the weight that can be given to background disadvantage as a mitigating factor.
Special circumstances were found to exist for both offenders, warranting a non-parole period shorter than the statutory default ratio. This reflected the need for supervised rehabilitation following release, given the nature of their backgrounds. The court imposed aggregate sentences for each offender, with indicative sentences recorded for each individual count.
Orders Made
Kareel Quinlan
- Convicted on all three counts
- Indicative sentence for count 1 (attempted armed robbery): 6 years imprisonment
- Indicative sentence for count 2 (taking conveyance without consent): 18 months imprisonment
- Indicative sentence for count 3 (armed robbery): 5 years 6 months imprisonment
- Aggregate sentence: 8 years 6 months total, comprising a non-parole period of 4 years 6 months commencing 30 April 2015 and expiring 29 October 2019, with a balance of term of 4 years expiring 29 October 2023
Ralph Nabalarua
- Convicted on all three counts
- Identical indicative sentences for each count as Quinlan
- Aggregate sentence: 8 years 6 months total, comprising a non-parole period of 4 years 6 months commencing 15 January 2015 and expiring 14 July 2019, with a balance of term of 4 years expiring 14 July 2023
Both offenders eligible for parole at the expiration of the non-parole period, subject to supervision and guidance of Community Corrections.
Key Takeaways
- The District Court confirmed that the Bugmy principle, requiring courts to give ongoing mitigating weight to a deprived and disadvantaged upbringing, applies even when an offender has reached adulthood and even when the offences carry a degree of planning.
- Where offences involve deliberate preparation, the weight available to be given to background disadvantage as mitigation may be reduced, reflecting the tension between planning as an aggravating factor and personal history as a mitigating one.
- Under s 97(2) of the Crimes Act 1900 (NSW), armed robbery and attempted armed robbery each carry a maximum of 25 years imprisonment; the court treated the attempted bank robbery as the more serious offence based on its scale, organisation, and the nature of the target.
- Special circumstances under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found to exist where an offender's background and rehabilitation needs justified a longer parole period than the standard statutory ratio would produce.
- The non-parole periods for the two offenders differed only in their commencement dates, reflecting the different periods each had spent in pre-sentence custody.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2) (armed robbery and attempted armed robbery)
- Crimes Act 1900 (NSW), s 154A(1)(b) (taking conveyance without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating and mitigating factors)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A (aggregate sentences and special circumstances)
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Taysavang v R; Lee v R [2017] NSWCCA 146
- Ingrey v R [2016] NSWCCA 31
- R v Henry (1999) 46 NSWLR 346
- Legge v R [2007] NSWCCA 244
- R v Millwood [2012] NSWCCA 2